September 26, 2008
Dr. Raymond Hawkins
Lone Star College-Tomball
30555 Tomball Parkway
Tomball, Texas 77375-4036
Sent via U.S. Mail and Facsimile (281-351-3323)
Dear President Hawkins:
The Foundation for Individual Rights in Education (FIRE) unites leaders in the fields of civil rights and civil liberties, scholars, journalists, and public intellectuals across the political and ideological spectrum on behalf of liberty, legal equality, academic freedom, due process, freedom of speech, and freedom of conscience on America’s college campuses. Our website, www.thefire.org, will give you a greater sense of our identity and activities.
FIRE is concerned about the threat to free speech posed by Program Manager for Student Activities Shannon Marino and Dean of Student Development E. Edward Albracht in their censorship and investigation of the Young Conservatives of Texas (YCT) chapter at Lone Star College–Tomball (Tomball) simply for placing a “Top Ten” list about guns on a flyer. Before the college takes further action against the student organization, FIRE would like to remind Tomball about the college’s constitutional obligation to protect students’ First Amendment rights.
This is our understanding of the facts, based on documents and reports from the students involved. Please inform us if you believe we are in error.
On Monday, September 8, 2008, YCT was distributing flyers during “club rush,” when various student organizations distribute materials in order to persuade other students to join the organizations and attend the organizations’ meetings. Besides the YCT logo, the entire text of the flyers read as follows:
Top Ten Gun Safety Tips
10. Always keep your gun pointed in a safe direction, such as at a Hippy or a Communist.
9. Dumb children might get a hold of your guns and shoot each other. If your children are dumb, put them up for adoption to protect your guns.
8. No matter how responsible he seems, never give your gun to a monkey
7. If guns make you nervous, drink a bottle of whiskey before heading to the range
6. While unholstering your weapon, it’s customary to say “Excuse me while I whip this out.”
5. Don’t load your gun unless you are ready to shoot something or are just feeling generally angry.
4. If your gun misfires, never look down the barrel to inspect it.
3. Never us[e] your gun to pistol whip someone. That could mar the finish.
2. No matter how excited you are about buying your first gun, do not run around yelling “I have a gun! I have a gun!”
1. And the most important rule of gun safety: Don’t piss me off.
Join us for an informational meeting Monday, September 15th at 4 p.m. in the commons area.
If you have any questions or would like to join please contact either Rob Comer (President) at 832-372-7192 or Joshua Pantano (VP) at 281-352-8088. [Boldface in original.]
Marino told YCT president Robert Comer that the flyer was inappropriate and took the flyers away from the group. Comer raised a question about freedom of speech, and Marino had Comer speak with Albracht. Albracht also said the flyer was inappropriate and invoked last year’s shootings at Virginia Tech. In response, Comer made new flyers and distributed them for the remainder of the club rush.
Then, on September 11, Marino asked Comer to come to her office. She informed Comer that the school’s legal department would be reviewing the flyers and that afterward, the school would decide about YCT’s status as a student organization. She told Comer that the school might not let YCT continue to exist, but if the school would let YCT exist, the organization likely would be on probation for the year because of the flyer.
Finally, on September 25, Comer approached Marino and asked her about the status of the “review” of the flyer and of YCT. Marino said that because of Hurricane Ike, not much had happened. Comer again invoked his constitutional rights, but Marino responded that the flyer violated the Student Handbook and that a dean and the legal department were reviewing the flyer. Comer informed Marino that Tomball’s actions were in violation of the United States Constitution and told her that any punishment of YCT would force him to pursue legal action. Marino replied that Comer should do what he thought necessary.
As a public institution of higher learning, Tomball has a constitutional obligation to uphold students’ First Amendment rights to freedom of expression and freedom of assembly. Let us be clear; while the content in question—a “Top Ten” list intended to be satirical and humorous—might offend some members of the campus community, it is unquestionably protected expression under the First Amendment. No college policy may circumvent this protection. The principle of freedom of speech does not exist to protect only non-controversial speech; indeed, it exists precisely to protect speech that some members of a community may find controversial or offensive. The Supreme Court stated in Texas v. Johnson, 491 U.S. 397, 414 (1989), that “[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Similarly, the Court wrote in Papish v. Board of Curators of the University of Missouri, 410 U.S. 667, 670 (1973) that “the mere dissemination of ideas—no matter how offensive to good taste—on a state university campus may not be shut off in the name alone of ‘conventions of decency.'”
Parody and satire, even when they include “offensive” language and situations, are forms of political speech that are at the core of our country’s honored traditions. They exist precisely to challenge, to amuse, to provoke—and, indeed, to offend. Case law on this subject is quite clear. The landmark Supreme Court cases Cohen v. California, 403 U.S. 15 (1971) and Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988) protect—as core political speech—shocking or deeply offensive material, farce, profanity, and exaggeration, and they confirm the essential role of parody and satire precisely because these forms of expression effectively challenge readers’ deepest assumptions and beliefs. No public institution—nor any institution that claims to take seriously the free speech rights of students—may retaliate against students or a student organization because others on campus felt offended by fully protected speech.
Equally troubling is Albracht’s invocation of the Virginia Tech shootings as a reason to ban satirical material that refers to guns or gun violence. The First Amendment does permit the prohibition of “true threats,” which the Supreme Court has held are “those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Virginia v. Black, 538 U.S. 343, 359 (2003). The plainly unserious “Top Ten” list expresses no such intent.
Nor does the “Top Ten” list meet the standard for “incitement,” another type of expression not protected by the First Amendment. “Incitement” is a clearly defined legal term applying not simply to offensive or unpopular speech, but to speech that encourages “imminent lawless action.” Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). For example, a speaker exhorting an angry, violent crowd to immediately attack a government office could be found guilty of incitement. This satirical flyer, distributed during the club rush, obviously did not encourage “imminent lawless action.”
In addition, the Lone Star College System (LSCS) expressly protects freedom of expression in its own policies. LSCS Policy Manual Section IV.D.3, “Student Rights,” adopted by the Board of Trustees on August 7, 2008, states:
D.3.05 – First Amendment Rights Retained:
At all college sponsored events and at all System locations, students retain their First Amendment rights on campus, and at off-campus registered student organization events, in light of the unique character of the academic environment. Student expression that is protected by the First Amendment may not be prohibited unless, in the view of the administration, the expression will materially and substantially interfere with the operation of the school or the rights of others.
D.3.06 – First Amendment – Freedom of Expression and Religion:
LSCS shall take no action respecting an establishment of religion, or prohibiting the free exercise thereof; abridging freedom of speech, or the press; the right to peaceably assemble; and to petition the Board for redress of grievances.
Activities such as distributing literature, displaying signs, petitioning for change, and disseminating information concerning issues of public concern are protected by the First Amendment.
Section D.3.07 enumerates “Limitations on Expression” whereby LSCS claims a right to “refuse to disseminate or sponsor student speech” that meets any of several enumerated criteria. However, these provisions do not apply to the “Top Ten” flyer, for Tomball was not being asked to disseminate or sponsor the flyer—the flyer was produced, published, and disseminated by students, and it certainly did not purport to represent the official view of the college.
In short, both the First Amendment and Tomball’s own policies prohibit the college from censoring the “Top Ten” flyer or punishing YCT for producing it. This is as it should be. In the landmark Supreme Court case of West Virginia Board of Education v. Barnette (1943), the Court wrote, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith [in it].” Tomball’s actions to date have gone against this clear statement of principle.
When a university investigates clearly protected speech, it produces a chilling effect on freedom of expression. FIRE requests that the investigation and threats against YCT immediately cease and that Tomball notify YCT that it recognizes that the flyer is protected speech.
FIRE hopes to resolve this situation amicably and swiftly. We will continue to pursue this matter, however, until Tomball reaffirms students’ First Amendment rights. We request a response about this matter by October 10, 2008.
Director, Individual Rights Defense Program
Judy Murray, Vice-President of Academic and Student Development, Lone Star College-Tomball
Shannon Marino, Program Manager for Student Activities, Lone Star College-Tomball
E. Edward Albracht, Dean of Student Development, Lone Star College-Tomball
Robert Eubank, Advisor, Young Conservatives of Texas
Robert Comer, President, Young Conservatives of Texas