FIRE Letter to University of Southern California President Steven B. Sample, September 12, 2008

By September 12, 2008

September 12, 2008

President Steven B. Sample
Office of the President
University of Southern California
University Park Campus
Los Angeles, California 90089

Sent by U.S. Mail and Facsimile (213-821-1342)

Dear President Sample:

The Foundation for Individual Rights in Education (FIRE) last wrote to the University of Southern California in February 2006 regarding a free speech controversy stemming from that year’s Gender and Sexuality Week. In April 2006, FIRE was pleased to read Vice President for Student Affairs Michael L. Jackson’s reaffirmation of USC’s commitment to freedom of expression in the pages of the Daily Trojan. Associate Vice President for Student Affairs Lori White also wrote to FIRE to emphasize USC’s commitment to these values.

It is with marked disappointment, then, that FIRE must write to you again regarding a controversy that has arisen over free expression on USC’s campus. As you know, Provost Chrysostomos L. Max Nikias has ordered the removal of a hadith of the Muslim faith from among an index of thousands hosted on university servers. This misguided and counterproductive attempt at censorship calls into question USC’s commitments to freedom of expression and freedom of religion, as well as its commitment to intellectual inquiry and honesty. The removal should be reversed immediately.

This is our understanding of the facts. Please inform us if you believe we are in error. A website on USC’s servers, originally created by the now-defunct Muslim Students Association, contains an exhaustive list of hadith of the religion of Islam-i.e., statements that are traditionally considered to be sayings of the Prophet Mohammed, but which are not included in the Quran.

According to a September 5, 2008, article in the Daily Trojan student newspaper, Provost Nikias was first notified about five hadith advocating violence against Jews by Rabbi Aron Hier of the Simon Wiesenthal Center. The Trojan reports that after Nikias reviewed the hadith, he stated that "the passage cited is truly despicable," and went on to tell the newspaper, "We did some investigations and have ordered the passage to be removed." USC’s Muslim Student Union (a group separate from the defunct Muslim Students Association) has protested the removal, and has noted that the indicia of ownership of the website was shifted to the Muslim Student Union at the same time that the changes were made.

On Tuesday, Nikias made matters still worse by citing an absurdly overbroad university speech code, the "Principles of Community," to defend the university’s actions. The restrictive speech code provides:

No one has the right to denigrate another human being on the basis of race, sex, sexual orientation, national origin, etc…. All who work, live, study and teach in the USC community are here by choice, and as part of that choice should be committed to these principles, which are an integral part of USC’s focus, goals, and mission. [emphasis added]

This speech code fails to meet either legal or rational scrutiny. Arguably, any strongly held, serious opinion may fairly be considered "denigrating" to someone, and of course many historical documents contain text which violates this unreasonable standard. As a result, not only would expunging such text from USC websites be an exercise in futility, it would be utterly inconsistent with the university’s stated commitments to academic freedom, freedom of speech, and freedom of inquiry.

Moreover, the speech code is an unfortunate policy of unlawful censorship. As you know, California Education Code § 94367 (commonly known as the "Leonard Law") states the following:

(a) No private postsecondary educational institution shall make or enforce any rule subjecting any student to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when engaged in outside the campus or facility of a private postsecondary institution, is protected from governmental restriction by the First Amendment to the United States Constitution or Section 2 of Article 1 of the California Constitution.

This law applies to private, nonsectarian colleges and universities in California, including the University of Southern California. FIRE’s principles diverge somewhat from the Leonard Law in that we believe that a private college may in fact choose to prioritize other values over free speech if it does so clearly in publicly available materials and in communications with students, faculty, alumni, and donors. Few colleges do so, however, as institutions that do not offer to protect free speech or academic freedom will likely have difficulty attracting students and serious scholars. USC, of course, promises these basic expressive freedoms, professing in its student handbook that it "recognizes the crucial importance of preserving First Amendment rights" and "is committed to fostering a learning environment where free inquiry and expression are encouraged and celebrated." Therefore, USC must be held to the same standards as public colleges, Leonard Law or not.

That the publication of the passages in question is protected expression "outside the campus or facility of a private postsecondary institution" is beyond dispute. In the landmark Supreme Court case of Terminiello v. Chicago, 337 U.S. 1 (1949), Father Arthur Terminiello, a Catholic priest, was convicted of inducing a "breach of the peace" for giving a racist, anti-Semitic, and pro-fascist rant to an auditorium full of people in Chicago. In overturning Terminiello’s conviction, the Court wrote that "freedom of speech, though not absolute… is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest…. There is no room under our Constitution for a more restrictive view." (Internal citations omitted.) Nearly sixty years later, the essence of the Court’s ruling in Terminiello is still the law of the land. No matter how offensive protected expression may be to some, like the hadith at issue here, it nevertheless enjoys full protection under the First Amendment.

Indeed, the Supreme Court has held that the Constitution protects many kinds of offensive expression. For example, in Papish v. Board of Curators of the University of Missouri, 410 U.S. 667 (1973), the Court determined that a student newspaper article entitled "Motherfucker Acquitted" was constitutionally protected speech, and in Hustler v. Falwell, 485 U.S. 46 (1988), the Court ruled that the First Amendment protected a cartoon suggesting that the Reverend Jerry Falwell lost his virginity in a drunken encounter with his mother in an outhouse. In Texas v. Johnson, 491 U.S. 397 (1989), the Court explained the rationale behind these decisions, saying 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." While many people might find the passages in question offensive, there can be no question that they are protected from government censorship by the First Amendment-and that USC, as an institution which has publicly committed itself to upholding First Amendment principles, must protect them as well.

Further, while certain hadith do advocate violence, they do not meet the threshold level of advocacy whereby expression ceases to be protected by the First Amendment. The First Amendment permits the prohibition only 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 hosting of thousands of religious texts on a website-some of which concern violence-from over a millennium ago is hardly a sufficiently "serious" expression of intent to commit unlawful violence. Nor does the hosting of these texts 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 attack a government office could be found guilty of incitement. Here, the hadith are roughly 1,400 years old and are posted online as part of a totality of thousands of texts. They clearly do not satisfy the "imminence" prong of the exacting legal standard for incitement.

In addition to the legal reasons that the hadith cannot be censored, there are a number of practical and moral reasons why removing them from USC’s web server is a wrong and potentially deeply harmful choice for the university to make. The most obvious, of course, is that by taking down the controversial passages, USC has accomplished nothing other than the obscuring of historic Islamic doctrine. The fact that certain hadith recommend the killing of Jews has not changed-rather, this fact is simply no longer reflected on USC’s website. This censorship, then, is no more effective an answer to potential hostility than that of an ostrich sticking its head in the sand; just because the hadith are no longer visible on USC’s website does not mean that they do not exist.

Provost Nikias’s decision takes a historical document on USC’s website and makes it incomplete and inaccurate. As an academic institution, USC must understand the importance of providing accurate historical documents to students and faculty members. For example, a quick search of the USC library’s catalog turns up multiple copies of Adolf Hitler’s Mein Kampf, both in English and the original German. Presumably, this is not because anyone at USC agrees with any of the opinions expressed in that book, but rather because the university recognizes that it is essential that scholars and students have the ability to access primary documents of historical importance. Removing the hadith in question from the USC website accomplishes no more towards defeating the views inherent in those passages than would destroying or removing books like Mein Kampf from the library.

Of course, Islam is hardly alone in having religious traditions that some find hateful, offensive, or controversial. Scriptures that underlie the Jewish, Christian, Hindu, and other faiths are frequently deemed offensive by those who do not subscribe to those faiths or by believers and nonbelievers alike who simply object to those particular passages. FIRE has no interest in presenting such a list of passages here, but, as you undoubtedly know, their existence is without question. As the Muslim Student Union said in a statement cited by the Daily Trojan:

We are outraged at the censorship of a complete religious and classic text without consulting us or any religious authority first… The "compendium" is now incomplete. There are verses in many religious texts (be it the Torah or the New Testament) that when taken out of context can be taken as offensive.

Minds cannot be changed, nor religious change effected, simply through the fiat of USC administrators. A community in which government or those who exercise similar power (such as private college administrators) have the right to censor supposedly "offensive" religious views is not free. That is why our Constitution includes not only protection for free speech in the First Amendment, but also the freedom to practice one’s faith-while explicitly taking away the government’s power to impose or interfere with religious belief or doctrine.

The real effect of Provost Nikias’s act has been to provoke concern about the depth and breadth of USC’s stated commitments to free speech, academic inquiry, and dispassionate historical and theological investigation. Provost Nikias’s actions are flatly incompatible with these commitments. However, USC’s own policy contains the roadmap to a real solution to the conflict over the hadith when it says that "[t]he legitimate expression of differing opinions and concerns, including unpopular, controversial or dissident viewpoints, is an essential element of the academic process." In the best tradition of both academic and American political culture, those who object to the passages should call attention to them and challenge them in the realm of open debate and discussion. This could lead to an unparalleled and in-depth discussion of Islamic doctrine on USC’s campus. Until and unless this discussion happens, nobody can know the outcome. However, we can be sure that simply eliminating the hadith from USC’s website means that no real discussion has taken place and no one’s mind has been changed.

The United States has long been unique among nations in its respect of both freedom of expression and religious liberty. This respect has been a crucial pillar of the free society from which the University of Southern California has benefited so much-and is the law of the land for public universities across the country and private universities in California.

FIRE therefore requests that USC immediately reverse Provost Nikias’s decision to remove the hadith from the USC website and revise the "Principles of Community" policy used to justify this act of censorship. We urge you to resolve this issue pursuant to the values of free expression and open debate enshrined in the Constitution of the United States, the laws of the State of California, and the policies and commitments of USC itself.

We request a response on this matter by September 26, 2008.

Sincerely,

Greg Lukianoff
President

cc:
Chrysostomos L. Max Nikias, Provost and Senior Vice President, Academic Affairs
Carol Mauch Amir, General Counsel and Secretary of the University
Michael L. Jackson, Vice President for Student Affairs
Denzil J. Suite, Associate Vice President for Student Affairs
Imam Jihad Turk, Director of Religious Affairs, Islamic Center of Southern California
Freedom of Expression Network