Inaccurate ‘ThinkProgress’ Coverage of Blueprint Disappoints … Again

By July 3, 2013

In a blog entry published this morning, ThinkProgress argues that the “blueprint” announced this past May by the Departments of Justice and Education doesn’t present a threat to student and faculty speech because it’s simply intended to encourage student reporting of sexual harassment. Sound familiar? It should. ThinkProgress made this same argument last month.  My colleague Joe Cohn and I offered a thorough response to ThinkProgress’ initial post. Joe and I explained in detail how the blueprint violates student and faculty First Amendment rights, offered examples of students and faculty punished for protected speech incorrectly labeled “harassment,” and pointed out that much campus speech that ThinkProgress would presumably support constitutes “sexual harassment” under the federal government’s broad blueprint.  Disappointingly, ThinkProgress’ Kumar Ramanathan—the author of both posts—ignored our substantive reply, choosing instead to rehash the same discredited argument. So I hope you’ll excuse me for quoting our initial response at some length here. Once again:  Of course, students can and should be able to report conduct that makes them uncomfortable—but if the offending conduct is solely speech protected by the First Amendment, it cannot be labeled as "sexual harassment" by order of the federal government. Labeling protected speech "sexual harassment" and stating that protected speech is "prohibited under Title IX" undoubtedly chills speech. Chilling the exercise of First Amendment freedoms is unconstitutional, no matter the impetus. As the Supreme Court stated in Elrod v. Burns, 427 U.S. 347, 373 (1976): "The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury."Not only does the blueprint’s definition chill speech—a grave harm in and of itself—the document requires that schools investigate student and faculty speakers for protected speech. Page 5 of the blueprint states that "[i]n all cases, however, the college or university must conduct a prompt, thorough, and impartial inquiry designed to reliably determine what occurred." In other words, under OCR’s newly required expansive definition, every report of "sexual harassment"—even if it obviously and only includes protected speech—must be "thoroughly" investigated. It’s a shocking result: a public university will be required by the federal government to thoroughly investigate obviously protected student or faculty speech simply because it offended someone. Ramanathan’s apparent comfort with this outcome is difficult to fathom.  As former Office for Civil Rights attorney Hans Bader has pointed out, federal courts have held that investigating protected speech can violate the First Amendment. And as the Supreme Court made clear in Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 67 (1963), "the threat of invoking legal sanctions and other means of coercion, persuasion, and intimidation" may also violate the First Amendment. Informing a student or faculty member that his or her speech—despite being protected by the First Amendment—legally constitutes sexual harassment, as defined by the Department of Education, and must therefore be thoroughly investigated surely constitutes such a threat, and thus violates the First Amendment.Under Section VI of the resolution agreement, the University of Montana must maintain a database containing the names of all students and faculty members accused of sexual harassment, even if the charge is determined to be baseless, or solely concerns protected speech, or doesn’t create a hostile environment. There’s no requirement that these records ever be cleared, leaving baseless charges of "harassment" for simply engaging in protected speech on an official university record seemingly forever. That’s unacceptable. Being branded a sexual harasser under federal law and being subjected to a mandatory investigation sure sounds like punishment to us, but apparently OCR and Ramanathan feel differently. OCR’s response from last week attempted to argue that deeming speech protected by the First Amendment to be "sexual harassment" and requiring its investigation is justifiable because doing so might encourage more reporting. But again, the federal government may no more require the reporting of subjectively offensive but constitutionally protected speech as "harassment" than it may require the reporting of "unpatriotic" speech as treason.  It’s disappointing that ThinkProgress has chosen—again—to defend the mandatory reporting, investigation, and documentation of students and faculty members for expression protected by the First Amendment, not to mention the very real risk of punishment. And it’s frustrating that ThinkProgress has chosen—again—not to engage FIRE’s arguments about why this result is legally and morally wrong.  Of course, I understand that it’s undoubtedly easier to mischaracterize or simply ignore our concerns. For example, today’s entry states that critics of the blueprint like Senator John McCain have alleged that the blueprint would “somehow restrict free speech.” Come on—“somehow”? McCain’s letter spells out precisely how the blueprint endangers free speech and academic freedom, as did FIRE’s response to ThinkProgress. If ThinkProgress is going to defend this obvious threat to student and faculty rights, it could at least engage the arguments of the blueprint’s many critics.  Speaking of engaging with arguments, Ramanathan’s post makes two glaring errors that require mentioning here.  Claiming that “conservative and libertarian critics of the agreement have seized on one section of the lengthy agreement,” Ramanathan states that the section in question “defines sexual harassment for the purpose of student reporting as ‘any unwelcome contact of a sexual nature.’” This is flat-out false. The phrase “unwelcome contact of a sexual nature” does not once appear in the University of Montana settlement agreement or the findings letter that accompanied it. In reality, the blueprint defines sexual harassment as “unwelcome conduct of a sexual nature” (emphasis added), a term that—unlike “contact”—encompasses expression. If the blueprint really had defined sexual harassment as “any unwelcome contact of a sexual nature,” it wouldn’t present any First Amendment problems; unwelcome physical contact is assault, not speech.  I’d like to think that is just a typo. But I can’t quite be sure, since this mistake also serves to define away the First Amendment problems in the blueprint’s definition—the exact problems that Ramanathan argues don’t exist.  In addition to this strange misquotation, Ramanathan also mischaracterizes the context of the definition in that same sentence. He writes:  In that vein, the section defines sexual harassment for the purpose of student reporting as “any unwelcome contact of a sexual nature.” The phrase “for the purpose of student reporting” is misleading. The blueprint does not limit use of its broad definition solely to student reporting. To the contrary, the blueprint makes clear that this broad definition is the only acceptable definition of sexual harassment for Title IV and Title IX purposes, period. Here’s the definition on page 4 of the findings letter:  Sexual harassment is a form of sex discrimination prohibited by Title IX and Title IV. Sexual harassment is unwelcome conduct of a sexual nature and can include unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature, such as sexual assault or acts of sexual violence. Again, the findings letter does not state that this definition is limited just to “the purpose of student reporting.” The Departments have emphasized their desire to encourage student reporting, and apparently seek to achieve this aim by defining sexual harassment so broadly as to include protected speech. But as explained above, this is an unconstitutional means to the government’s desired end. To be clear: the federal government cannot encourage reporting by defining protected speech as sexual harassment, prohibited by federal law. Doing so violates the First Amendment. Unfortunately, these aren’t the only frustrating aspects of ThinkProgress’ post this morning. Confusing principle for partisanship, Ramanathan mischaracterizes—again—critics of the blueprint as consisting solely of “conservatives and libertarians.” This misleading description is just as tired and untrue as it was the first time.  As Joe and I explained earlier, FIRE is neither conservative nor libertarian. We are proudly nonpartisan. Don’t believe it? Check out the front page of our site right now, where you’ll find coverage of our recent defense of a pro-choice student group at the University of Alabama and our successful effort to prompt Wisconsin Governor Scott Walker (a Republican) to veto an unconstitutional threat to academic freedom contained in a state budget provision (introduced by a Republican legislator). Of course, you’ll also find that many of our victories are on behalf of speech that isn’t partisan at all, like our recent defense of the Ball State University professor prohibited from flying an Italian flag in his office window, or our repeated criticism of the University of North Carolina speech code under which student Landen Gambill was charged this February for criticizing the university’s handling of her sexual assault allegations against another student.  Again, FIRE’s record speaks for itself. We defend student and faculty speech protected by the First Amendment, regardless of the partisan affiliation of the speaker or the censor.  Critics of the blueprint that don’t fit ThinkProgress’ partisan frame are ignored. For example, the American Association of University Professors’ Committee on Women in the Academic Profession is neither “conservative” nor “libertarian,” yet its June 6 letter to the Departments of Justice and Education states that its members are “deeply concerned” about the blueprint’s threat to academic freedom. Inexplicably, ThinkProgress ignores the Committee’s letter, despite the fact that it was explicitly cited by Senator McCain. And what of the criticisms of the blueprint by Wendy Kaminer in The Atlantic? Or Alexandra Petri in The Washington Post? Or the Los Angeles Times’ editorial board? Or Rob Jenkins in The Chronicle of Higher Education? Or the National Coalition Against Censorship? Or the many general counsels attending the National Association of College and University Attorneys’ annual convention?  Does ThinkProgress really believe that all of these critics are simply “conservative” or “libertarian”? Or is it just that ThinkProgress prefers to reduce widespread concerns about student and faculty civil liberties to a nakedly partisan, “us” versus “them” dynamic—even if doing so misrepresents the facts?  I suspect the latter, but I wish I didn’t. It’s depressing.  I hope that ThinkProgress’ next attempt to grapple with the serious threat to free speech presented by the blueprint is more substantive. Want to know more about the ED/DOJ "blueprint"?  Check out FIRE’s Frequently Asked Questions here!

Cases: Departments of Education and Justice: National Requirement for Unconstitutional Speech Codes