FIRE's co-founder and chairman Harvey Silverglate provided this issue's "From the Board of Directors" article and discussed that while FIRE has been successful "in winning an overwhelming number of individual clashes with the campus totalitarians," the culture of censorship on college campuses is much harder to change. He writes:
[T]he enemies of academic freedom and due process almost always cave in when FIRE exposes them, but they don't really change their minds, nor do they deeply understand why their actions disserve higher education as well as liberty. This being so, we wonder how and when are we going to actually change these administrators' (and all-too-many faculty members') minds—thereby changing the culture.
The short answer is that we need to effect a radical transformation of the way college administrators see their roles.
FIRE's achievements provide us with more opportunities to continue with our defense of and education about individual rights on campuses. For more on the continued successes and campaigns of FIRE, be sure to check out The FIRE Quarterly.
Posted by Erin Royce on August 20, 2008, at 12:04 p.m.
On October 13–17, the Terrorism Awareness Project (TAP) is sponsoring its third "Islamo-Fascism Awareness Week" on campuses across America. As you might imagine, this event is no stranger to controversy: last October, Adam described at least twoincidents where speakers brought in for the occasion were shouted down or silenced and students participating in related events were censored in various ways.
Unfortunately, this year it appears that TAP is calling for some censorship of its own, saying that it will advocate the defunding of campus chapters of the Muslim Student Association (MSA). In its guide for the week, a document called "Stop the Jihad on Campus," the group issues a call to "Defund the MSA," saying that "[m]arching under the banner of multiculturalism, the MSA has used its imposture as just another cultural/religious group to get funding from student government and university administrators for its hate campaign" and that "[t]he focus of Stop the Jihad on Campus Week will be to get all MSA chapters defunded." Another document, "Defunding the Muslim Student Association," further elaborates the group's reasoning behind its call to defund MSA chapters, including "The MSA Foments Ethnic Hatred," "The MSA Attacks Free Speech," and "The MSA Lies About Its True Nature and Agenda."
FIRE has no way of determining whether TAP's claims about the MSA are true, false, or somewhere in between, and for our purposes it doesn't matter. However, we do know how to tell when someone is calling for a group to be punished for its expression—defunding a campus group is certainly punishment—and TAP appears to be doing just that. While any group is free to advocate for unconstitutional punishments for MSA chapters on campus, student governments (which are agents of the university and which therefore are bound by the First Amendment on public campuses and contractual promises of free speech on private ones) and administrators are not free to accommodate such requests. One of the responsibilities of an official decision-maker in a free society is to refrain from substituting one's own judgment for that of the law. (In fairness to TAP, some of its arguments for defunding MSA chapters are unrelated to the legitimate exercise of free speech. FIRE takes no position on these arguments.)
Let's take a look at two examples of expression for which TAP is calling on universities to defund MSA chapters. In the "Defunding the Muslim Student Association" document, TAP claims, among other things, that "[t]he University of Southern California chapter brazenly displays the Islamic hadith (‘holy teaching') calling for the murder of all Jews on its website," and that "[t]he MSA national headquarters recently sent Islamic bigot Sheikh Khalid Yasin to Penn State, Ohio State, the University of Minnesota and other major campuses...Sheik Yasin has said that the U.S. government was behind 9/11; that homosexuals should be put to death; that AIDS was invented in U.S. government laboratories; and that Jews are 'filth' deserving of death."
While many people might strongly object to these opinions, there is no room under the First Amendment to punish a group simply for presenting or sponsoring expression that angers, offends, or even "incites hatred" of someone else. A fitting illustration of why this principle is so important comes from an October 2006 incident at San Francisco State University (SFSU). As part of an anti-terrorism rally, the SFSU College Republicans held an event during which they stepped on crudely drawn Hamas and Hezbollah flags. Because both flags contained the word "Allah" written on them in Arabic script, students complained that they were offended by the protest and persuaded the university to "investigate" the College Republicans for "incitement, creation of a hostile environment, and incivility."
FIRE came to the College Republicans' aid, and after an absurd "investigation" and hearing, the university came to the conclusion that the students had not violated any rules. But it didn't end there. SFSU's pursuit of the students for their constitutionally protected expression was so egregious that the students brought a lawsuit against SFSU as part of FIRE's Speech Codes Litigation Project in an effort to overturn the speech restrictions under which they were punished. And they won big, getting a very favorable court ruling and ultimately a settlement that overturned unconstitutional speech restrictions not just at SFSU but across the entire 400,000-student California State University System—and awarded the College Republicans both damages and attorneys' fees.
The fact is that neither the government nor college administrators (at public colleges or private colleges that claim to respect free expression) should have the power to arbitrarily determine what speech is acceptable on a college campus, or to block the discussion of certain viewpoints altogether. Simply put, that is a power that no person who cares about liberty should want the authorities to have. Once the power to censor is established, it can as easily be used against oneself or one's friends as it can against one's enemies. That is why the concept of the university as a "marketplace of ideas" is so important—all beliefs and opinions can compete against another on an equal basis, and those that are wrong or that are not useful will inevitably become unpopular in such an environment.
This concept underlies both the idea of the liberal university and the First Amendment itself. When it comes to cases like this, the law is clear: as established by the U.S. Supreme Court in Board of Regents of the University of Wisconsin System v. Southworth (2000), universities that use mandatory student fees to fund student groups (nearly all of them) may not make funding decisions about student groups based on their viewpoint. If, thanks to TAP's advocacy, a MSA chapter faces defunding over its expression, FIRE will be there to help that chapter vindicate its free speech rights, as we have for so many other organizations in the last nine years.
Posted by Robert Shibley on August 20, 2008, at 10:40 a.m.
CNETNews.com is reporting that a federal judge in Boston has lifted the order that was preventing three MIT students from discussing vulnerabilities they found in the Boston MBTA's fare-collection system. According to CNET, "Judge O'Toole said he disagreed with the basic premise of the MBTA's argument: that the students' presentation was a likely violation of the Computer Fraud and Abuse Act, a 1986 federal law meant to protect computers from malicious attacks such as worms and viruses." Apparently, since Judge O'Toole did not think that the MBTA would prevail on the merits of its suit (which means that the agency is not entitled to a preliminary injunction), he therefore saw no need to get into the First Amendment implications of the case.
The case is still slated to proceed to trial, however, and for supporters of free speech there are still unanswered questions. For instance, if the students were not likely to have been violating the Computer Fraud and Abuse Act, was there any justification at all for the prior restraint on their speech? It remains to be seen if the students' counsel from the Electronic Frontier Foundation will pursue the constitutional implications of the case any further, but at least we know that this episode of unconstitutional prior review has come to a welcome end, even if the students' travails have not.
Posted by Robert Shibley on August 19, 2008, at 03:31 p.m.
In June I pointed out that the University of Chicago's recently announced Milton Friedman Institute is under attack by faculty members who dislike the Institute's expected focus on free-market economics and its expected market approach to social policy. This attack has generally been treated as an attack on the Institute's academic freedom insofar as such expectations might be true, even though the original faculty letter stated that "This is not a question of academic freedom, to be sure: we know that the work of scholars at the Milton Friedman Institute will not have a chilling effect on the development of other kinds of knowledge at the University."
But the dissenting faculty won a meeting with the university's president as well as a promise that the Faculty Senate would get a second bite at the apple (having approved the Institute, in some form, at an earlier date) in a meeting of the full Faculty Senate.
And now the dissenters are going back to the academic freedom argument. One of the arguments now is that within the Institute, the academic freedom of researchers will be threatened, for the general research agendas of the Institute may not match the research agendas of scholars who might want to study at the Institute. Thus, the dissenting group is calling itself the "Committee for Open Research on Economy & Society" (CORES).
This group is floating a number of other arguments as well, such as the idea that rich outside donors will have special access to and influence on the research of the Institute, or that "the MFI will also use its assets to recruit and mentor undergraduates"! But these arguments are outside FIRE's purview, so to get the documentation on the history of the controversy, the latest petition, and recent media coverage, be advised that the website of record appears to be this one.
Let me repeat part of what I wrote in June:
A witch-hunt for orthodoxy-like statements [in an academic unit's mission] only leads to a lot of drownings of false witches.... It is true: unequal funding reflects institutional priorities. But that's a far cry from establishing an institutional orthodoxy. Emphasizing studies in one perspective over another is an important way for graduate departments and entire graduate programs to compete with one another. The real problem is when students or scholars are required to, for instance, demonstrate personal commitment to a highly politicized agenda...
At its founding, the Franke Institute addressed four major transformatory processes at work in humanistic research at that time, which articulated the basic agenda the Institute serves: paradigm change, interdisciplinarity, multi-culturalism, and public outreach. These four processes of transformation [are] some common themes that underlie the whole movement that has produced the proliferation of humanities centers and institutes nationwide.
Yes, I see: an agenda of multiculturalism and "paradigm change" counts as ok, but an agenda of free-market economics does not. I think CORES is going to lose on its academic freedom argument.
Posted by Adam Kissel on August 19, 2008, at 12:17 p.m.
In the past year, the University of Florida made some significant changes to its "Guidelines on Sex Discrimination, Sexual Harassment, and Harassment" ("the Guidelines") that eliminate some of that policy's most egregious constitutional violations. But whoever correctly realized that the Guidelines needed to be rewritten clearly did not review the university's other policies, because several unconstitutional policies remain on the books. Given that the university went to the effort to correct constitutional deficiencies in one of its policies, it should review and revise the others as well, since as things stand it would still—as a public university bound by the First Amendment—be vulnerable to legal action.
Last year, the Guidelines defined harassment as "the creation of a hostile or intimidating environment in which verbal or physical conduct is so severe or persistent that it is likely to interfere significantly with someone's work, education, or on-campus living conditions." (Emphasis added). In this year's Guidelines, the definition of harassment has been changed to require the hostile environment to be both "severe and pervasive." (Emphasis added). This change is consistent with the U.S. Supreme Court's requirement that actionable harassment, in the educational context, must be both severe and pervasive, not either-or.
Last year's Guidelines also provided that "examples of harassing conduct includes epithets; slurs; negative stereotyping; or threatening, intimidating, or hostile acts that relate to race, color, religion, ethnicity, national origin, sex, sexual orientation, age, disability, marital status, or veteran status." (Emphasis added). That provision is clearly overbroad, since unless the listed examples rise to the level of severity and pervasiveness necessary to constitute harassment, they are constitutionally protected speech that the university may not ban. This year, the Guidelines were updated to provide that "examples of harassment may include epithets; slurs; negative stereotyping; or threatening, intimidating, or hostile acts that relate to race, color, religion, ethnicity, national origin, sex, sexual orientation, age, disability, marital status, or veteran status." (Emphasis added). The change from absolute to conditional language here is a significant improvement, since the policy no longer prohibits constitutionally protected speech across the board.
Given these very specific revisions clearly intended to address free speech issues with the Guidelines, it is surprising that the university left other equally unconstitutional policies untouched. For example, the policy on Student Rights and Responsibilities provides that
Sexual attitudes or actions which are intimidating, harassing, coercive, or abusive, or that invade the right to the privacy of the individual are not acceptable. Organizations or individuals that adversely upset the delicate balance of communal living will be subject to disciplinary action by the University
and that
[E]xpressions and challenges need to be civil, manifesting respect and concern for others.
In addition, the university's policy on use of its residential computing networks prohibits the use of "objectionable language" in e-mails, a broad and vague policy that would never pass constitutional muster.
The changes to this year's Guidelines are a positive step towards protecting free speech on the University of Florida's campus; we now challenge the university to go the distance by addressing the constitutional deficiencies in all of its speech codes.
Last week I blogged about the story of three MIT students who saw themselves gagged by the court after the MBTA, Boston's public transit agency, sued for a temporary restraining order to keep them from discussing vulnerabilities in the agency's payment system at the Defcon hackers' conference. While the conference is now over, last Thursday, Judge George O'Toole continued the injunction until at least tomorrow, when hearings will resume.
It's unfortunate that this instance of unconstitutional censorship as yet shows no signs of abating. The Electronic Frontier Foundation (EFF), though, is representing the students and is working hard to get the order lifted. FIRE co-founder Harvey Silverglate wrote about the MBTA's poor handling of this situation in TheBoston Globe over the weekend, emphasizing []the agency's ludicrous assertion that the students' exposure of flaws in the subway's fare collection system somehow compromises national security. The Boston Globe editorial board also criticized the agency, writing, "the MBTA should recognize that security flaws are a design problem, not a legal one." Let's hope that tomorrow's proceedings result in the end of this episode of unconstitutional prior restraint of speech.
Posted by Robert Shibley on August 18, 2008, at 02:22 p.m.
With last Thursday's passage of the Higher Education Act, complete with a sense of Congress resolution (see Section 104) that says that "an institution of higher education should facilitate the free and open exchange of ideas," and that "students should not be intimidated, harassed, discouraged from speaking out, or discriminated against," I am once again reminded that there is virtually no constituency for college censorship outside of academia itself. According to FIRE's last annual speech codes report, no less than 75% of schools have speech codes that either do or would violate the First Amendment—and even more have speech codes that are questionable. Yet not only are these codes routinely struck down by the courts, but now Congress has passed a resolution advocating the exact opposite of the current situation for free expression on campus.
Why is the institutional attitude in Congress so different from that in academia? I think the answer is simple: unlike college administrators who would like to see all "offensive" expression purged from our campuses, the public has zero interest in seeing colleges and universities turned into islands of censorship within a sea of freedom. This truth is at the heart of FIRE's success—we could not win cases if the vast majority of Americans did not agree with our positions. And the public's attitude is reflected in the attitudes of our elected representatives. Congress' vote is another sign of the major disconnect that exists between academia and the public on the issue of free speech on campus. Those at our colleges and universities who care about preserving the influence of academia in our public discourse would be well advised to take note.
Posted by Robert Shibley on August 18, 2008, at 11:28 a.m.
Greg, Will, and Sam have published an analysis of the Third Circuit ruling in DeJohn v. Temple, which agreed with a federal district court in finding Temple University's sexual harassment policy unconstitutional. Their analysis makes clear that the ruling is fully within Supreme Court and Third Circuit precedent. This article ought to put to rest the arguments of some critics claiming that the Third Circuit decision was somehow "activist," "ominous," or political rather than fair, predictable, and correct.
One critic also challenged the decision by ignoring the importance of facial challenges to unconstitutional speech codes. But Greg, Will, and Sam make clear that a facial challenge exists to protect everyone who might suffer under a speech code from the "chilling effect" caused by the very existence of unconstitutional code.
A critic also complained that the Court took a cynical view of Temple's intentions, noting that Temple had already changed its policy before the ruling. But my colleagues point out:
Following U.S. Supreme Court precedent, the court held that a finding of mootness is only appropriate if "it can be said with assurance that there is no reasonable expectation that the alleged violation will recur." Because Temple, in its appellate brief, defended both the constitutionality of its former policy and its particular necessity on Temple's campus, the court held that it could not be certain that Temple would not simply reinstate the policy once the litigation was over.
This fear is well-founded in the case of Temple, and it reminds me of a 2008 speech code lawsuit at Shippensburg University (also in the Third Circuit), whose unconstitutional speech code was reinstated just a few years after Shippensburg agreed to repeal it.
Perhaps most importantly, my colleagues point out that the real activist judging in the case would have occurred if the Court had taken Temple's side and had permitted the very limited holding in Morse, a high school case, to be dramatically broadened to apply to college speech codes. Thankfully, the Court saw through that argument and stuck to some fifty years of established precedent regarding the speech rights of adult college students.
Last week, Brandonand I chronicled the widespread coverage given to the ruling in the case of DeJohn v. Temple University by various daily publications, blogs, radio stations, and legal news sites around the United States. This week the ruling received a further boost in an editorial published in The Washington Times. As I mentioned in an earlier blog this week, the editorial correctly understands the ruling as a major victory for free speech rights on campus, and a warning signal to universities maintaining overly restrictive speech codes. The editorial also cites the work done by FIRE's Spotlight in exposing the widespread abuses of free speech carried out by countless university administrations.
This week also saw the release of Save the World on Your Own Time, scholar Stanley Fish's latest book on the subject of free speech. As Adam noted in his blog yesterday, Fish does not mention FIRE in the book, but does give attention to Evan Coyne Maloney's documentary feature Indoctrinate U, a film which heavily features FIRE cases and our speech code research. One case cited by Fish is our case at California Polytechnic State University, which arose from a student posting a flyer that had the word "plantation" on it, leading to a conviction for "disruption of a campus event," and eventually to a federal civil rights lawsuit filed against the university. Fish devotes five pages of his book to Maloney's film-no small amount of attention for this slender, 178-page volume.
Finally, no round-up would be complete without a hat tip to Chuck Norton at the IUSB Vision Weblog. This week Norton, a tireless voice in the effort to clear Keith John Sampson's name at Indiana University-Purdue University Indianapolis, linked readers to a 2003 letter from the Office for Civil Rights (OCR) of the U.S. Department of Education on FIRE's website, warning universities not to adopt overly broad definitions of harassment in their speech codes. Specifically, the OCR letter states that true harassment "must include something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive." Given Kelly's blog earlier today on Congress' largely symbolic but nonetheless reassuring affirmation of the need for free speech and thought in the academy's marketplace of ideas, Norton's citation is prescient.
Posted by Peter Bonilla on August 15, 2008, at 05:05 p.m.
President Bush signed the reauthorization of the Higher Education Act into law yesterday. Referred to by Speaker Nancy Pelosi (D-CA) as a bipartisan effort, the new law recognizes the importance of free speech and due process rights for college students across the nation.
Congress amended the law to include provisions stating that it was the sense of the Congress that "an institution of higher education should facilitate the free and open exchange of ideas" and that "students should not be intimidated, harassed, discouraged from speaking out, or discriminated against." In defense of due process, Congress added that college "students should be treated equally and fairly" and any sanctions of students should be imposed "objectively and fairly."
While "sense of Congress" resolutions are not legally binding, the author of these provisions, Senator Judd Gregg (R-NH) explained why the amendment is important:
Colleges and universities across the country play a key role in preparing our students to be the nation's next leaders. As such, it is the duty of these institutions to promote and facilitate the free and open exchange of ideas among students, and not prohibit students from speaking out with ideas that are politically or culturally different. During a time where it seems natural to take political sides, my provision protects free speech in an environment where it is most important that this freedom be preserved-the college classroom.
The bipartisan support for this law demonstrates the American public's strong commitment to its universities operating as a free marketplace of ideas. The fact that Congress felt a need to add this language to the Higher Education Act illustrates that while the public is devoted to these core principles, the academy has too often strayed from them (as FIRE is wellaware), and needed to be reminded of their importance.
Congress' strong words add to those of the federal judiciary in urging universities to live up to their unique and important role in society. Hopefully, universities will listen, and re-commit themselves to fostering open campuses where ideas can be exchanged freely without threat or sanction.
Posted by Kelly Sarabyn on August 15, 2008, at 11:06 a.m.
But there is another aspect of the decision which should not be overlooked: the court's unequivocal rejection of Temple's attempt to defend its sexual harassment policy on the grounds that the policy follows the Equal Employment Opportunity Commission's (EEOC's) guidelines for gender discrimination.
Among other things, the Third Circuit took issue with the language in Temple's policy defining sexual harassment as conduct which has the "purpose or effect of unreasonably interfering with an individual's work, educational performance, or status; or...creating an intimidating, hostile, or offensive environment" (emphasis added). With respect to the "purpose or effect" prong, the court observed that:
Under the language of Temple's Policy, a student who sets out to interfere with another student's work, educational performance, or status, or to create a hostile environment would be subject to sanctions regardless of whether these motives and actions had their intended effect.
The court held that by allowing a finding of sexual harassment on the basis alone of the alleged harasser's intentions, without regard to the actual impact of his or her conduct, the policy went against long-standing Supreme Court precedent holding that "a school must show that speech will cause actual, material disruption before prohibiting it." Moreover, it reasoned that the policy did not require a threshold showing of severity, pervasiveness, and objective offensiveness in the conduct involved, as required by the Supreme Court's seminal decision on sexual harassment in the educational context, Davis v. Monroe County, 526 U.S. 629 (1999). Thus, the court found that, lacking a "requirement that the conduct objectively and subjectively creates a hostile environment or substantially interferes with an individual's work...the policy provides no shelter for core protected speech." Rather, the policy "could conceivably be applied to cover any speech of a gender-motivated nature the content of which offends someone" (internal quotations omitted). This rendered the policy fatally overbroad on its face.
Significantly, in attempting to defend its erstwhile policy, Temple argued that the policy language was similar to the language found in the EEOC guidelines for gender discrimination. The EEOC guidelines define sexual harassment as conduct which "has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment." A side-by-side comparison of the EEOC guidelines and Temple policy reveals that they are indeed almost identical. However, the EEOC guidelines apply to harassment in the workplace. Hence the focus on "work performance" and "working environment." The guidelines are not applicable in the educational setting, which differs tremendously from the employment context in terms of speech rights accorded as well as the respective missions of the institutions involved. As the Supreme Court famously declared, "[t]he college classroom with its surrounding environs is peculiarly the ‘marketplace of ideas.'" Healy v. James, 408 U.S. 169, 180 (1972). Students at public colleges and universities enjoy robust speech rights under the Constitution, in order to contribute to the marketplace of ideas, learn from each other, and freely discuss and debate a wide range of issues. The same is not true for employees in a workplace, particularly a private workplace, who are subject to the restrictions of their employer.
Nonetheless, Temple asserted that because its policy tracked EEOC language, its "use of the terms ‘purpose' or ‘effect' has a specific meaning" which saved the policy from constitutional deficiency. In response, the court wrote, "Temple fails to explain how that makes the ‘specific meaning' constitutionally permissible." In other words, simply pointing to the EEOC guidelines did not address the policy's doctrinal flaws in any way. The court noted that the university had cited only one case in support of its assertion that federal courts had on numerous occasions recognized the validity of the EEOC standard for sexual harassment. Moreover, that case did not take a stand on the constitutionality of the EEOC language, but rather cited it "generally for the proposition that ‘[t]here is a well-defined and dominant public policy concerning sexual harassment in the workplace'" (internal citations omitted) (emphasis in original).
Therefore, the Third Circuit held that the Temple policy could not be saved from constitutional deficiency merely by pointing to its similarity to the EEOC language. This is a significant statement from a federal circuit court, one which should demonstrate to public colleges and universities once and for all that it is simply impermissible for institutions of higher education to restrict student speech rights by borrowing from harassment standards developed for the workplace. Those standards fail to provide the necessary breathing room for campus speech. Hopefully, the DeJohn decision will have the effect of deterring schools from tracking the EEOC guidelines in their respective harassment policies. The result would be a boost for student speech rights on campus.
There is a lot in Stanley Fish's new book Save the World on Your Own Time that college and university faculty--and administrators--should take seriously. The title alone points to an argument about activism versus professional responsibility in higher education. The book deserves a full review--including a comparison with Fish's 1995 book, There's No Such Thing As Free Speech...And It's a Good Thing, Too. For our purposes here, however, I will focus on just a few key passages on free speech, speech codes, and Indoctrinate U, a film based in large part on FIRE cases.
First, on free speech in the classroom and its cousin, academic freedom, turn to Chapter Four, "Don't Try to Do Someone Else's Job." The essence of the chapter (as well as the book) is captured concisely in lines like this one:
It is a question finally of what business we are in, and we are in the education business, not the democracy business. Democracy, we must remember, is a political not an educational project. (71)
When FIRE advocates against thought reform, it's because we believe that adult students must be allowed to make up their own minds without coercion. Fish goes so far, however, as to deny instructors the freedom to make choices that involve any personal idea whatsoever of what is good. Thus, Fish seems to take a limited view of academic freedom:
As an instructor I can conduct my class in any manner I like ... and I can assign whatever readings I judge to be relevant to the course's topic. Those are pedagogical choices, and I cannot be penalized for making them.
But if I harass students, or call them names, or make fun of their ethnicity, or if I use class time to rehearse my personal political views or attempt to win students over to them, I might well find myself in a disciplinary hearing, either because I am abusing my pedagogical authority or because I am turning the scene of instruction into a scene of indoctrination. (83)
Indeed, true harassment is not protected, and a liberal education seems incompatible with "indoctrination." But after that, I'm not sure-so much depends on the context, and it's perhaps best to evaluate these situations on an ad hoc basis. Even when it comes to a rule against calling students names or making fun of something that involves a student's ethnicity (or some other characteristic with which a student identifies), FIRE has seen far too many cases where something that should not in any way be actionable is turned into an allegation of "harassment." Take, for instance, the case of Professor Donald Hindley at Brandeis, who was found guilty of discriminatory harassment after he critiqued the use of the term "wetbacks" in a class where the topic was entirely relevant. A rule against bringing up "personal political views" seems like it might be even more prone to abuse by administrative censors.
Second, Fish devotes a full five pages to the issues raised by Evan Maloney's Indoctrinate U (pp. 147-52). Of special interest to FIRE is this passage on speech codes:
Then there's the matter of speech codes. This is a fake issue. Every speech code that has been tested in the courts has been struck down, often on the very grounds-you can't criminalize offensiveness-invoked by Maloney. Even though there are such codes on the books of some universities, attempts to enforce them will never hold up. Students don't have to worry about speech codes. The universities that have them do, a point made by Indoctrinate U when Maloney tells the story of how Cal Poly was taken to the cleaners when it tried to discipline a student for putting up a poster with the word "plantation" in it. (149)
Fish is right only insofar as speech codes at public universities have failed to pass constitutional muster when challenged in court for nearly 20 years now. (See, most recently, the successful challenge at Temple University.) But to say that speech codes are a fake issue is dead wrong. It is hard to believe that Fish even believes this assertion if he acknowledges even one of these points:
Speech codes are indeed used frequently to punish students and professors. For instance, University of New Hampshire student Tim Garneau ran afoul of speech regulations, was kicked out of his dorm, and spent three weeks living out of his car-in November, in New Hampshire. Is this a fake problem? Is Fish's response to Garneau that he should have taken the school to court when he had the chance?
Fish does not acknowledge the "chilling effect" that causes the speech codes to be rendered unconstitutional in the first place. Is he arguing that every student, upon reading university rules that prohibit things like "telling sexual jokes or stories," knows that he or she doesn't have to worry about the rules because any prosecution would be ultimately overturned by a federal court?
The speech codes at private universities cannot easily be struck down by courts, for the First Amendment does not apply to these schools.
Speech codes actually miseducate students about their free-speech rights by banning what is protected and teaching that censorship is a valid function of government.
Most students do not have the resources, financial, legal, or otherwise, that the student at Cal Poly managed to find (with FIRE's help) to launch a legal attack on a speech violation. Meanwhile, the speech code stays on the books, chilling the speech of every other student (and faculty member) who knows what will happen when he crosses the speech code police.
Before FIRE existed, even public universities had little to fear in prosecuting students under Orwellian codes for speech and thought. If speech codes ever truly become a "fake issue," it will only be through the tireless efforts of FIRE and our allies-and we are far from that point. To say that speech codes are on the books of only "some" universities is a wild understatement. FIRE has documented hundreds of speech codes now on the books of private and public colleges and universities. The problem of speech codes is a very real and pervasive issue.
Finally (for now), Fish takes Indoctrinate U to task for clouding the essential issue with which he is concerned: "those who confuse advocacy with teaching":
Academics often bridle at the picture of their activities presented by Maloney, and other conservative critics and accuse them of grossly caricaturing and exaggerating what goes on in the classroom. Maybe so, but so long as there are those who confuse advocacy with teaching, and so long as faculty colleagues and university administrators look the other way, the academy invites the criticism it receives in this documentary. In 1915, the American Association of University Professors warned that if we didn't clean up our own shop, external constituencies, with motives more political than education, would step in and do it for us. Now they're doing it in the movies and it's our own fault. (152)
That's pretty much how I see it, too, except that here at FIRE, our political motives do not extend beyond promoting and protecting individual rights in higher education. I'd like to think that Fish ignores FIRE in his book (though he has paid significant attention to us before) because he thinks we're getting it right on that score. Meanwhile, we have plenty of work on our hands.
Posted by Adam Kissel on August 14, 2008, at 04:59 p.m.
Boston's mass transit system, universally referred to as the "T" (but which is really the Massachusetts Bay Transit Authority, or MBTA), is apparently the most recent institution to move to censor America's students. A report from CNet's Declan McCullagh details how the MBTA went to a Massachusetts federal judge last Saturday to restrain three MIT students, Alessandro Chiesa, R.J. Ryan, and Zack Anderson, from discussing the vulnerabilities they discovered in Boston's subway ticket system at the annual "Defcon" hacker's conference in Las Vegas. (For those who don't know, while a "hackers' conference" might sound ominous--and the attendees are often people who operate in very gray areas of cyber-related law--Defcon has actually become a recognized platform for discussing computer security issues and is well-attended by the law enforcement community.) The Electronic Frontier Foundation (EFF), which is representing the students, is asking another judge today to lift this prior restraint on the students' speech, especially considering that the conference is now over and that slides from the planned presentation are already out on the Web.
I highly recommend reading the article if you would like to know more about the details of the story. What struck me about this story is not only that we have a government agency other than a university that wants to silence students, but also that its desire to censor stems from the same impulse that we see in a lot of college and university cases--the MBTA wants to prevent internal problems from being discussed publicly. Unfortunately, this is no better a reason for the MBTA to censor than it is for your average campus.
The MBTA is undoubtedly worried that if the information about the ticket system that the MIT students were to relate gets out, the security of the system would be compromised. Solution: prevent anyone from talking about it! This is a response to a problem that only a bureaucrat could love. The nature of computer security is such that once a vulnerability is discovered, the only real solution is to fix it, because efforts will be made to exploit that vulnerability. And by drawing attention to the vulnerability by asking for a gag order on the students, the MBTA has guaranteed that hackers will work overtime to crack the MBTA's system-and probably not the kind of hackers who attend a respected institution and who are willing to give an academic lecture on it to conference attendees. If, on the other hand, the MBTA had attended the conference, learned about the vulnerabilities, and moved quickly to fix them, its ticket system would be secure and it would not have gained reams of bad press for its attempt to abridge our fundamental liberties.
The MBTA's "solution" to security problems exactly tracks the "solution" to offensive speech or expression that so many colleges and universities are promulgating today. If someone's expression is making someone else uncomfortable, ban it! Our Red Alert schools, Colorado College, Brandeis University, Tufts University, Johns Hopkins University, and Valdosta State University, are excellent examples of institutions where this mindset dominates.
It's hard to think of a more foolhardy way for an institution to treat expression it doesn't like. First, banning a certain kind of expression gives it that certain frisson of excitement and interest that is present in anything that is forbidden. (George Carlin's famous monologue "Seven Words You Can't Say on Television" is famous for a reason.)
Second, banning expression simply means that those who would express themselves publicly may choose instead to express themselves in secret-and this is often a very undesirable outcome. In the case of the MBTA, what if the students, aware that prior restraint of any public talk they would give was a possibility, had simply discussed it on closed Internet forums with other, possibly more malevolent hackers? You'd probably see CharlieCards being sold on the streets of Boston a few months later at a considerable discount from their face value. How exactly would that help the MBTA or Boston's taxpayers? As for the more conventional political discussions that we see in academia, I will paraphrase FIRE co-founder Harvey Silverglate's pithy statement at this summer's CFN conference: "If there's a Holocaust denier in the room, I want them to have full freedom to speak so that I know who not to turn my back to!" Driving such people underground, where their ideas and speech will never face the withering criticism that they would face in the marketplace of ideas, is extremely unwise.
FIRE will keep you updated on how this case progresses.
Posted by Robert Shibley on August 14, 2008, at 02:43 p.m.
"The U.S. Court of Appeals for the Third Circuit just made hundreds of colleges wonder how long their restrictive speech codes can survive," begins a staff editorial assessing the significance of last week's ruling in the case of DeJohn vs. Temple Universityin today's issue of The Washington Times. The editorial goes on to assert that "[c]olleges and universities generally know the game is up." While we at FIRE have been working to dismantle oppressive and unconstitutional speech codes for nearly ten years and know that the policies won't go quickly or quietly, the DeJohn ruling is a major victory for free speech, and the Times rightly captures its significance when stating that universities "will have little plausible defense if they insist on speech codes as nebulous and facially unconstitutional as Temple's." FIRE-which submitted an amicus brief in support of the case in 2007 and whose research is mentioned in the editorial-is pleased to have such continued attention drawn to this important decision. Furthermore, the editorial cites the comprehensive efforts of FIRE' Spotlight in exposing the widespread speech code abuses at colleges and universities across the United States. FIRE thanks the Times for bringing attention to the DeJohn ruling and to FIRE's speech code efforts.
Posted by Peter Bonilla on August 13, 2008, at 04:45 p.m.
On Monday, Charles C. Haynes, senior scholar at the First Amendment Center, had an excellent article in the Tucson Citizen on the denial of free speech rights to high school students. He points out that without ever experiencing freedom in the academy, "students will return to class this fall with little or no idea about what it means to be a free, active and engaged citizen in a democracy."
We at FIRE are familiar with this phenomenon at the college level, where too many administrators have forgotten that they are not parents and that their students are adult citizens. Students coming out of what Haynes calls "12 years of censorship and regimentation" often reach college without any idea of what it means to live freely or to engage in the marketplace of ideas, where one is confronted with concepts that one may find strange or even repulsive. Haynes writes, "Students have become canaries in the free-speech coal mine: We can predict the future health of freedom of speech in America by looking at how public schools live up to-or fail to live up to-the First Amendment." And if we look at how colleges and universities have lived up to-or failed to live up to-the First Amendment, we have a lot to fear, for too many colleges are failing to provide an education that prepares students to respect freedom of speech. Speech codes-often disguised as "civility" requirements or as harassment policies-teach students that official punishment for allegedly impure thought and expression is proper, rather than anathema, in a free society.
FIRE co-founder Alan Charles Kors has often said that "A nation that does not educate in liberty will not long preserve it and will not even know when it is lost." For example, take Roderick King, a student at the University of Wisconsin-Stevens Point, who thought that it was a legitimate expression of his free speech rights to tear out crosses in a prolife display because he disagreed with the message conveyed. That's not free expression, it's vandalism.
Then there was the case of the students at Washington State University who believed that their free speech rights included the right to the heckler's veto. The students were loud and obnoxious and interrupted the satirical play Passion of the Musical. These students did this at the behest of an administrator, who had purchased their tickets to help them disrupt the play.
Not only are students often deprived of an education about free speech in high school, but college administrators add to the confusion when they pull such stunts.
Some professors have also done their part in this tragedy of mis-education. At Northern Kentucky University, Professor Sally Jacobsen led students in an effort to destroy a pro-life display in the name of expressing their freedom of speech. Again, Professor Jacobsen, vandalism is not free speech. Teaching your students that it is acceptable will do them, and you, no favors. Professor Jacobsen was placed on leave from the university and charged with criminal solicitation for inciting her students to commit the crimes of vandalism and theft.
I could cite endless examples of such illiberalism on campus. Haynes points out, however, that "Not all school officials make the false choice between security and freedom." He cites a few examples of stellar high schools that have stepped forward to protect the rights of their students. As for colleges, FIRE's renowned study of campus speech codes, Spotlight on Speech Codes 2007, identified that only eight schools out of the 346 surveyed had policies that fully accorded with the protections of the First Amendment. That such a small number of schools fit in that category makes clear the pervasiveness of ignorance of what free speech protections for adult citizens entail.
