FIRE’s Speech Codes Litigation Project is moving forward as attorneys from the Alliance Defense Fund (ADF), in cooperation with FIRE, filed a federal lawsuit today against San Francisco State University (SFSU) for violating its students’ First Amendment rights.
Torch readers will likely recall the debacle at SFSU this past spring, when the SFSU College Republicans were tried by a campus tribunal for the “offense” of stepping on makeshift Hamas and Hezbollah flags during an anti-terrorism rally they held in October, 2006. Of course, as FIRE repeatedly told SFSU’s leadership, flag desecration in the context of political protest is constitutionally protected expression that a public university such as SFSU is legally obligated to protect. In urging SFSU to call off the March 9 hearing on the charges against the College Republicans, FIRE wrote:
[A]s a public institution, SFSU cannot lawfully punish the College Republicans for engaging in protected symbolic political expression. It is imperative that SFSU recognize that it is both legally and morally bound to respect the right to free expression as guaranteed to its students by the Constitution of the United States, by the California constitution, and by its own institutional commitments to free speech.
Legally speaking, this is not a close call, and the administrators involved in this action risk being held individually liable in a court of law for violating the constitutional rights of the accused students. Even if every allegation in the complaint is true, there are no lawful grounds for punishment or even further investigation.
In response to that letter, SFSU President Robert Corrigan wrote that:
I object strongly to the letter’s hostile tone and threatening statements about possible legal action against individuals participating in the SOHP process—threats that I and others read as an attempt to intimidate members of the university community into substituting FIRE’s judgment for their own.
In fact, the statements in FIRE’s letter were not made to intimidate anyone, but rather to warn SFSU of the potential consequences of knowingly engaging in such blatant constitutional violations. Indeed, as FIRE warned in the letter, individual university administrators who participated in violating the College Republicans’ constitutional rights—including Corrigan himself—have been named as defendants in the lawsuit in addition to SFSU as an institution.
In addition to holding SFSU accountable for unlawfully mistreating the plaintiffs on the basis of their constitutionally protected expression, the lawsuit asks the court to strike down several unconstitutional speech codes at SFSU, including its Sexual Harassment Policy and portions of its Student Code.
As FIRE President Greg Lukianoff said in our press release today, “Public universities must be made to understand that disregarding the First Amendment rights of their students will have consequences. FIRE will continue its litigation project for as long as it takes to get universities to understand this crucial point.”