A Fiery Champion of Campus Free Speech

March 1, 2007

Academic freedom never has an easy ride. At a time when the country is deeply divided politically, universities are the tinderboxes of national outrage — and the utterances of professors and students make plenty of sparks. Even though most would agree that the height of P.C. culture passed years ago, speech codes are not dead. Loyalty oaths still pop up on campuses. Religious tolerance is uneven. Greg Lukianoff, president of the Foundation for Individual Rights in Education, fields requests for help from students and professors across the country who believe their freedom of thought and expression has been pinched. And his organization responds aggressively, with a blizzard of legal threats, guidebooks on campus speech codes, and press releases hailing colleges that have backed down. He has discussed the nuanced issues of academic freedom in venues like Hannity and Colmes and The O’Reilly Factor, and now he will discuss them with us. He is joined by Samantha Harris, FIRE’s director of legal and public advocacy.

The Guest

Greg Lukianoff has been with FIRE since 2001, when he started out as director of legal and public advocacy. He studied First Amendment and constitutional law at Stanford University’s law school.

A transcript of the chat follows.

John Gravois (Moderator):
    Welcome, everyone. Thanks to Greg Lukianoff and Samantha Harris for joining us from Philadelphia. Without further ado, let the discussion begin.

Question from John K. Wilson, collegefreedom.org:
    Obviously, the ideal solution is to stop censorship before it happens. What’s the best way to educate administrators (along with trustees, presidents, faculty, and students) about free speech on campus? Are there national organizations that are influential among the creators and enforcers of these codes? Are there strategies for what to do on individual campuses?

Greg Lukianoff:
    Good question. FIRE has been trying to educate administrators about both the principles of free speech and the law for years now. We produced a series of Guides to Student Rights on Campus that are available for free download at http://www.thefire.org/guides. We also regularly lecture to groups including the Association for Student Judicial Affairs and National Association of Student Personnel Administrators (NASPA). NASPA has also come out with a very helpful guide entitled "The First Amendment on Campus: A Handbook for College and University Administrators."

Question from Thomas Lane, Missouri State University:
    I work at an institution that was recently given a "red light" by FIRE. It would be helpful for me as an administrator who works with free speech issues to learn specifically from your organization’s perspective what needs to occur on our campus to move from "red" to "green." Are there plans from FIRE to communicate with those institutions given "red lights" and offer recommendations on what steps can be taken to improve their standing with FIRE. Thank you.

Greg Lukianoff:
    Due to the sheer number of red light schools (229 out of 334 rated schools), we are not able to proactively reach out to each one. However, we are thrilled to work (and have done so in the past) with students, faculty, and administrators at schools that are interested in improving their rating. Can we continue this conversation after the forum so that we can address the specific issues with Missouri State’s policies? Please e-mail Samantha at samantha@thefire.org. Thanks!

Question from Frank Ernest, Duke:
    I admire your championing of Faculty and student rights. Why the disregard for non-faculty staff rights who are not represented by collective bargaining agreements?

Greg Lukianoff:
    We have definitely seen real abuses of staff rights at universities, and we are concerned about them. Unfortunately, the rights of students and faculty and the rights of staff are dramatically different under the law. The government as employer has greater rights to control the speech of its employees than it does as a provider of educational services (and faculty, while employees, are protected by guarantees of academic freedom not applicable to non-faculty staff). While governmental employees do have some First Amendment rights, in light of recent Supreme Court case law, there is a worrisome trend towards giving the government-as-employer more leeway than ever before to restrict employee speech. This is something that we are concerned about, but given our limited resources, we would likely be overwhelmed if we expanded our mandate to include a very different area of the law. We have, however, gotten involved in cases that involve RAs and other types of employees who are also students, on the grounds that their rights as students may not be abrogated simply because they are also employees.

Greg Lukianoff:
    Between questions, I would like to recommend that readers take a look at our recent Boston Phoenix piece about administrative monitoring and censorship of student speech on Facebook.com. http://www.thefire.org/index.php/article/7768.html

Question from Marcia, 4 year comprehensive:
    When we, as administrators, rally around the flag of "free speech," we are oftentimes asked, "When do administrators have the ‘right’ to step in and do the ‘right thing’?" What would be your response?

Greg Lukianoff:
    Can you clarify what you mean by the "right thing" in your question?

Greg Lukianoff:
    If you have been following the case of the Long Island University resident assistants who were fired and threatened with discipline for creating a mock hostage video in which they "kidnapped" their dorm’s mascot, a rubber duck, this may be of interest to you. FOXNews.com is reporting that the students, who brought suit against the university, have reached a settlement and that the university will not be pursuing disciplinary action against them. If you’re interested, you can read more about this case on our blog, The Torch, at http://www.thefire.org/torch.

Greg Lukianoff:
    We’d like to draw your attention to a few cases in which student rights are currently in serious jeopardy. San Francisco State University (SFSU) is currently considering disciplinary action against members of the College Republicans for, as part of an antiterrorism demonstration, stepping on pieces of paper on which they had drawn the Hamas and Hezbollah flags. SFSU is a public university, and the U.S. Supreme Court made clear in Texas v. Johnson that flag desecration as part of a political protest is constitutionally protected expression. SFSU’s response to this argument is that they are not investigating the desecration of a flag, but rather the desecration of Allah’s name, since unbeknownst to the protestors the Hezbollah flag contains the word "Allah" in Arabic script. This is clearly unconstitutional behavior on the part of SFSU.

Question from Anonymous:
    Administrators and faculty I’ve spoken with who don’t want to be seen as impinging upon free speech often talk about "civility." Is it important for sponsors of and participants in discussion of controversial issues to know how to create civil dialogue? Do you give advice on how to do this?

Greg Lukianoff:
    Civility is a very important value, but discussions of civility in the university setting are sadly too often code for wanting to shut down discussions that may offend students or administrators. It would be a great service to students if it was explained to them when they begin college that, although politeness may be nice, it is of miniscule importance as compared to robust discussion. As we often joke, being offended is what happens when you have your deepest beliefs challenged, and if you make it through college without being offended, you should ask for your money back. On a serious note, a look at the U.S. Supreme Court’s First Amendment jurisprudence will demonstrate that the government cannot require civil speech or mandate conventions of decency (take a look at Cohen v. California or Papish v. Board of Curators of the University of Missouri, to name just a few). That being said, colleges and universities can *encourage* students to dialogue civilly; they simply cannot *require* it.

Question from John Gravois:
    I know there’s a perception that speech codes are relics from the era of P.C. What’s the state of speech codes on campus now?

Greg Lukianoff:
    Unfortunately, speech codes are alive and well on today’s college campuses. FIRE recently released a report in which it rated the policies of 328 colleges and universities across the country as red, yellow, or green light. Of those 328 schools, 229 were rated as red light, 91 as yellow light, and only 8 as green light. A school is rated as a red light if it has at least one policy that both clearly and substantially restricts freedom of speech. A yellow light institution has policies that could be interpreted to suppress protected speech, or policies that, while restricting freedom of speech, restrict only narrow categories of speech. A school is rated as a green light if FIRE finds no policies that seriously imperil speech. Some examples of red light policies are Northeastern University’s ban on electronic communications that "in the sole judgment of the University" are "offensive," and Drexel University’s ban on "inconsiderate jokes" and "inappropriately directed laughter."

Question from Elyse Ashburn:
    Some community colleges seem to be particularly heavy-handed with student newspapers and their advisors. Incidents at Ocean County College in New Jersey and Barton County Community College in Kansas come to mind. Has your organization looked much at free speech issues at two-year colleges, especially as they relate to campus newspapers? If so, what have you found?

Greg Lukianoff:
    FIRE has had a number of cases at community colleges, some relating to campus newspapers, others to students’ right to distribute literature and show films, others to faculty members’ free speech rights. Probably the most disturbing trend relating to campus newspapers in the past year has been an uptick in the number of newspaper thefts–students effectively censoring other students by stealing newspapers that publish articles they dislike. Too often, the thieves go unpunished by the college or university (though we have seen an improvement in administrative attitudes towards newspaper theft).

Question from Marcia, 4 year comprehensive:
    Sorry for the confusion. The ‘right thing’ in these people’s minds is stopping activity that offends or insults others. For instance, College Republicans don’t like it that other groups found their campaign against a marraige amendment offensive. Our gay/straight alliance student group thought it offensive that student newspapers, not affiliated with the school, wrote satirical articles slamming gays. Students from the diversity coalition felt another student was behaving inappropriately by having a swastika on his t-shirt. In all these situations, the students felt that administrators should step in and sanction these actions. Clearly, the ‘right thing’ changes as does the circumstance. We discuss freedom of speech, but that is not heard. What would your response be that might be more convincing that we are doing the ‘right thing’ by not sanctioning these students?

Greg Lukianoff:
    The most important thing is that administrators must do a better job of getting students excited about the process of debate and discussion on campus. Too often students seem to be told is that being offended is one of the worst things that can happen to them in college, and is something for which they are entitled to a remedy. Getting students to expect offense as a natural part of the campus "marketplace of ideas" would go a long way to preventing student demands for administrative censorship. The principles and philosophies of free speech are actually quite beautiful and compelling, but that aspect of the philosophy of liberty is not being adequately conveyed to students, either in college or before they arrive at college. From a practical standpoint, administrators at public colleges (and at private colleges that promise free speech) have a very strong defense against student pressure to censor: they are not allowed to, either by force of the First Amendment or by the contractual promises they have made to students.

Question from NL, large state U.:
    As someone about to retire after 40 years, my question is rather a long-term historical one. Why has a generation of academics grown up and reached seniority with so poor or equivocal a commitment to the application of free-speech principles to their institutions. They are quick to react if their own toes are stepped on, but seem ready to find rationalizations for stifling the expressive rights of those who hold uncongenial views or express themselves in insufficiently pious fashion.

Greg Lukianoff:
    Great question, we wish we knew the answer! Sadly, historically, the censored of one generation become the censors of the next. One of FIRE’s goals is to do our best, by educating students about their rights and about why those rights are so precious, is to break the cycle of censorship.

Question from John Gravois:
    One common institutional response when a professor lands in the news for saying something incendiary is for there to be an "investigation" into the professor’s speech. I’ve spoken to some academic freedom advocates who see such investigations as a natural, perfectly appropriate academic response to such dustups. In your mind, when, if ever, are these kinds of investigations appropriate?

Greg Lukianoff:
    Investigations into constitutionally protected speech are *never* appropriate, and in fact have an impermissible chilling effect on free speech. Whether or not punishment actually results from such investigations, the mere fact that students and faculty on a campus know they might be dragged through a long and stressful investigation will lead people to self-censor. This is extremely harmful to the marketplace of ideas, and any policies or practices that have this kind of chilling effect are inappropriate at institutions of higher education. For example, many years ago at the University of Alaska at Anchorage, the university began investigating a professor who had written a poem that was deemed insensitive to Native Alaskans. FIRE intervened, and thankfully the university quickly and unequivocally dropped its investigation. We should not be in the business of "investigating" poems.

Greg Lukianoff:
    Thank you so much for joining us. Please visit our website at http://www.thefire.org. We really want people to understand that FIRE is eager to work with colleges and universities to improve the free speech climate on campus, so please don’t hesitate to get in touch with us. While we are a watchdog group and are often tough on administrations that suppress student speech, we genuinely want to work with administrators to make things better.

John Gravois (Moderator):
    We are out of time, but if you’d like to continue talking about these issues, head over to our discussion forums: http://chronicle.com/forums/index.php/board,39.0.html We’ve set up a thread there, and it’s ready for comment. Our guests, Greg Lukianoff and Samantha Harris, may stop in at those discussions to weigh in.