As has been happily documented here on The Torch over the past few days, 2008 has been a terrific year for FIRE. We’ve seen important victories at schools across the country and outstanding institutional growth. (For a more complete sense of just how much we’ve accomplished this year, I recommend checking out this year’s press releases.)
But as FIRE’s Director of Legal and Public Advocacy, one victory in particular signifies to me both the great progress made in 2008 and the even greater promise of 2009: namely, the United States Court of Appeals for the Third Circuit’s precedential ruling in DeJohn v. Temple University, 537 F.3d 301 (3rd Cir. 2008). In DeJohn, the Third Circuit became the latest federal court—and the highest ever—to strike down a speech code at a public university on First Amendment grounds, delivering a ringing affirmation of the special importance of freedom of expression on campus. Indeed, the Third Circuit’s ruling means that FIRE’s Speech Codes Litigation Project has yet to lose a constitutional challenge, securing victories at Shippensburg University, Texas Tech University, the State University of New York at Brockport, California’s Citrus College, and San Francisco State University and the California State University System.
But before I analyze the ruling and discuss its implications, it’s worth first covering the case’s basic story and procedural history.
The facts of the case are relatively straightforward: Christian DeJohn, a graduate student studying Military and American History, also served as a Sergeant in Pennsylvania’s National Guard. While working towards his Master of Arts degree, DeJohn was deployed to Bosnia—and while serving overseas, he received numerous anti-war e-mails from professors. After DeJohn complained, the e-mails stopped soon thereafter—but to his shock, DeJohn returned from his tour of duty to find that Temple had dismissed him from the university, the result of what the school claimed was a "computer error." After returning to his studies in 2003, DeJohn participated in vigorous but civil debates in class with professors about the Iraq War. Unfortunately, speaking his mind seemed to earn DeJohn a wave of negative consequences: his professors refused to advise him on his thesis, issued scathing critiques of his work without seeming justification, and ultimately delayed his graduation three times.
Feeling persecuted for his beliefs, DeJohn filed a federal complaint against Temple in February 2006 alleging retaliation, breach of contract, conspiracy to violate civil rights, violation of freedom of expression, and other charges. DeJohn’s suit challenged not just his own treatment, but Temple’s entire speech code, which prohibited "generalized sexist remarks and behavior," making free speech at Temple contingent on wildly overbroad and vague definitions. DeJohn was concerned that voicing his beliefs about the role of women in the military, for example, could be prohibited under Temple’s policy. As long-time supporters know, FIRE was involved with DeJohn’s case against Temple right from the beginning, as FIRE Legal Network member (and former FIRE President) David French filed DeJohn’s complaint. (French is currently senior legal counsel for the Alliance Defense Fund and a First Lieutenant in the United States Army Reserve.)
During the course of the ensuing litigation, Temple actually altered its speech code, in what looked for all the world like a cynical attempt to evade judicial review. Nevertheless, the district court refused to dismiss DeJohn’s case—and in March 2007, the district court issued a permanent injunction against enforcement of Temple’s former code.
Rather than admit defeat, however, Temple appealed the district court’s ruling to the Court of Appeals for the Third Circuit. On appeal, Temple argued that its former code was constitutional by invoking the Supreme Court’s ruling in Morse v. Frederick—a decision upholding the very narrow right of high school administrators to regulate student speech "reasonably regarded as encouraging illegal drug use." Equating the rights of high school students to those enjoyed by college students, Temple argued that it had the right to place high-school restrictions on college students, contending that Morse gave the university the power to restrict any "student’s speech that is inconsistent with its ‘basic educational mission.’"
However, galvanized by Temple’s deep misunderstanding of the fundamental importance of free expression at public colleges and universities, FIRE authored and filed an amicus brief on DeJohn’s behalf with the Third Circuit in September 2007. In a demonstration of the profound threat to civil liberties on campus represented by Temple’s argument, FIRE’s amicus brief attracted broad support across the political spectrum, and was joined by the ACLU of Pennsylvania, the Christian Legal Society, Collegefreedom.org, Feminists for Free Expression, the Individual Rights Foundation, Students for Academic Freedom, and the Student Press Law Center.
Finally, on August 4, 2008, the Third Circuit issued its opinion. In a clear victory for First Amendment rights on campus, the Third Circuit upheld the lower court’s ruling that Temple’s former speech code was unconstitutional. Writing for the majority, Judge D. Brooks Smith’s powerful opinion held that "[d]iscussion by adult students in a college classroom should not be restricted." Because Temple’s former speech code "provide[d] no shelter for core protected speech," Judge Smith found the policy to be facially overbroad. The Third Circuit’s ruling couldn’t be clearer: Temple’s former policy violated the First Amendment rights of its students.
While we at FIRE were of course thrilled with the outcome for Christian DeJohn and students at Temple, what really excites me heading into the new year is the signal the Third Circuit’s ruling in DeJohn sends to other public colleges and universities, both in the Third Circuit’s jurisdiction (comprised of Delaware, New Jersey and Pennsylvania) and across the country: namely, that unconstitutional restrictions on student speech have no place in our nation’s public institutions of higher education. Of course, as I discussed back in August in a piece for JURIST, DeJohn is just the latest ruling to send such a message:
[I]t’s useful to remember the special niche public universities have long occupied in the Supreme Court’s First Amendment jurisprudence. That the First Amendment’s protections fully extend to the public university campus is settled law, as the Third Circuit’s ruling acknowledges by citing Keyishian v. Bd. of Regents, State Univ. of N.Y., 385 U.S. 589, 605-06 (1967) ("[W]e have recognized that the university is a traditional sphere of free expression so fundamental to the functioning of our society that the Government’s ability to control speech within that sphere by means of conditions attached to the expenditure of Government funds is restricted by the vagueness and overbreadth doctrines of the First Amendment."); Healy v. James, 408 U.S. 169, 180 (1972) (citation omitted) ("the precedents of this Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large. Quite to the contrary, ‘the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.’"); and Widmar v. Vincent, 454 U.S. 263, 268-69 (1981) ("With respect to persons entitled to be there, our cases leave no doubt that the First Amendment rights of speech and association extend to the campuses of state universities.")
But shockingly, despite the fact that the case law couldn’t be clearer, speech codes continue to flourish at schools across the country, as our report, Spotlight on Speech Codes 2009: The State of Free Speech on our Nation’s Campuses, proves beyond question. This discrepancy prompts an obvious question: What gives? If the Supreme Court has consistently held that students at public colleges are protected by the First Amendment—as it has—and if federal courts across the country have consistently applied these holdings to invalidate speech codes in every challenge to produce an opinion over the past twenty years—as they have—why then do so many schools still maintain unconstitutional restrictions on student speech? Are school administrators and counsel for public colleges and universities simply ignorant of their legal obligation to uphold the First Amendment on campus, or are they willfully ignoring the law?
While it’s impossible to know for sure, I think the answer may be a little of both. Somehow, despite the clarity of the law, many policymakers must not realize that their regulations restrict or chill speech on campus. And still other policymakers must just not care.
Either way, this is precisely why DeJohn presents such an exciting opportunity for FIRE. Because the Third Circuit’s ruling so powerfully spells out precisely how overbroad and vague speech codes fail to pass constitutional muster, and because the Third Circuit is the highest court yet to invalidate an unconstitutional speech code at a public university, FIRE will use DeJohn to argue that ignorance of the law—either benign or calculated—is no longer acceptable, and continued ignorance will come at a cost. Indeed, we’ve already made precisely this argument to every public university in the Third Circuit that is rated a red or yellow light institution on Spotlight: The Campus Freedom Resource in a late September mailing. More will follow, until no public university president in the country can credibly claim that he or she did not know about a college president’s obligations under the Constitution.
The Third Circuit’s ruling in DeJohn is one of FIRE’s proudest victories of 2008. Better yet, I believe it will spur still more victories in 2009.