FIRE Targets Another Unconstitutional Speech Code

BUFFALO, N.Y., June 9, 2004.The Foundation for Individual Rights in Education (FIRE) announces the fourth lawsuit in its campaign to rid public campuses of repressive and unconstitutional speech codes. The federal lawsuit was filed June 3 against the State University of New York College at Brockport (SUNY Brockport), in upstate New York, on behalf of students Patricia Simpson and Robert Wojick. The two students seek to overturn policies that violate their rights under the First Amendment to the United States Constitution. The suit was filed in federal court in Buffalo, New York, by three pro bono FIRE Legal Network attorneys: Robert A. Goodman and Elizabeth A. Wells, both of the law firm of Arnold & Porter in New York City, and Amherst, New York attorney David R. Koepsell.
“Oppressive speech codes such at those at SUNY Brockport have no place on America’s college campuses,” said Greg Lukianoff, FIRE’s director of legal and public advocacy. “Not only does SUNY Brockport tell students what not to say, it actually tells them what they must say and even what they must think. A free society does not tolerate such Orwellian horrors,” he continued. “The defeat of this speech code and of all other unconstitutional speech codes at public universities is inevitable. FIRE will not stop until students’ rights are vindicated and the rights and values of a free people are restored.”

The speech code at SUNY Brockport bans expression that is clearly constitutionally protected. The college’s harassment policy, which applies to students and faculty, lists the following among examples of harassment: “cartoons that depict religious figures in compromising situations”; “calling someone an ‘old bag'”; “jokes making fun of any protected group”; and even merely “discussing sexual activities.” “Administrators at SUNY Brockport must have read the First Amendment to some other nation’s constitution,” Lukianoff added.

SUNY Brockport’s regulations have been used to chill the speech and to threaten punishment of the plaintiffs in the case. The Brockport College Republicans, to which plaintiffs Patricia Simpson and Robert Wojick belong, were twice targeted for the content of their expression in the last year. In October 2003, the group passed out a pamphlet that jokingly urged people to “Bring Back the Blacklist” for liberal celebrities. The College Republicans were confronted by an angry faculty member who called the pamphlet “offensive” and demanded they stop the pamphleteering. Fearing punishment under the college’s speech code, they halted distribution. Then, in February of 2004, the College Republicans distributed a flier that exhorted members of the college community to “End Liberal Indoctrination on Campus.” Yet another faculty member declared the flier ” harassment” and demanded that the group either be denied funding or be shut down altogether.

“SUNY Brockport has banned a stunning amount of protected speech,” Lukianoff observed; “its code puts both the College Republicans and any editorialist on Church sexual scandals at risk. The First Amendment, however, protects discussion of imp ortant public concerns, even if some faculty or students are offended.” He added, “If we limited our speech to what offended no one, there would be only silence.”

SUNY Brockport’s definition of what does not constitute sexual harassment simply dispenses with the Bill of Rights: “Normal, courteous, mutually respectful, comfortable, appropriate, pleasant, non-coercive interactions that are acceptable to both parties are not considered to be sexual harassment.” Lukianoff noted: “The wonder is that anyone would risk speaking at all at SUNY Brockport. The Constitution does not give government the power to limit speech to what it finds ‘pleasant.'”

SUNY Brockport orders students to hold and to express certain opinions. It officially instructs members of the college community, including undergraduates, to promote its sexual harassment policy and to condemn all sexual harassment as defined in it regardless of whether they believe in this unconstitutional policy or not. Students who fail to obey this demand “shall be subject to the campus judicial system.” “Censorship is bad enough,” Lukianoff explained, “but requiring individuals to voice opinions with which they do not agree is both unconstitutional and morally outrageous.”

Robert Goodman, the lead attorney on the case, said, “Arnold & Porter is proud to coordinate its efforts with FIRE to restore the First Amendment to SUNY Brockport.”

The suit against SUNY Brockport is the fourth lawsuit in FIRE’s ongoing Speech Codes Litigation Project, which aims to put an end to the scandal of unconstitutional and immoral speech codes on America’s public college and university campuses. The results so far are encouraging. The speech code at Shippensburg University in Pennsylvania was defeated in court. Citrus College in California repealed all of its speech code policies almost immediately after the filing of a lawsuit. Litigation at Texas Tech University is ongoing, but the university has already repealed some of the most egregious parts of its spee ch code. For more information, please visit You can also read speech-related policies from more than 200 campuses at FIRE’s

Lukianoff concluded, “We are confident that the courts will continue to take the side of freedom over repression. SUNY Brockport’s repression of an open exchange of views is contrary to the very principles of liberal education and to the limits set on government by the First Amendment. A nation that does not educate in freedom will not long preserve it.”

FIRE is a nonprofit educational foundation that unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals from across the political and ideological spectrum on behalf of individual rights, due process, freedom of expression, academic freedom, and rights of conscience at our nation’s colleges and universities.

CONTACT: Greg Lukianoff, Director of Legal and Public Advocacy, FIRE: 215-717-3473;
Adrienne Collier, Affirmative Action Officer, SUNY Brockport: 585-395-5119;