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Free speech and double standards at San Francisco State University

By July 3, 2017

Late last month, a group of Jewish students and community members filed a federal lawsuit against San Francisco State University. The lawsuit alleges that SFSU has, for years, turned a blind eye toward the censorship and harassment of Jewish students and their allies. As I wrote in Reason last week, the complaint is a mixed bag, containing some very serious allegations but also sweeping protected speech into the charges of harassment. For example, as part of their harassment claim, plaintiffs cite posters featuring a picture of a dead child captioned “Made in Israel—Palestinian Children Meat, Slaughtered According to Jewish Rites Under American License,” and cite students holding portraits of hijacker Leila Khaled alongside slogans like “my heroes have always killed colonizers” and “resistance is not terrorism.”

When it comes to offensive-but-protected speech, of course, the answer is not more censorship, but equal protection for all speech. Administrators often cite the importance of free speech when it suits them, and throw free speech under the bus when it does not. What the SFSU plaintiffs believe, and what I think is driving a lot of their anger, is that the administration would never tolerate even a small fraction of the anti-Israel speech that occurs on campus if it were instead directed at other groups. As the plaintiffs point out:

In contrast [to their tolerance of anti-Israel speech], SFSU has bent over backwards to protect the most trivial concerns of students and faculty hostile to Jews, even seeking to punish clearly protected speech and responding rapidly and publicly in condemning such disfavored viewpoints. In 2006, after the defacing of the flags of … Hamas and Hezbollah at an on campus anti-terrorism rally by the SFSU College Republicans, SFSU sought to discipline the group and two of its officers for violating unconstitutionally vague provisions of the Student Code of Conduct.

FIRE happens to know a bit about this particular incident. In fact, we were involved. Ten years ago this month, another group of students filed a First Amendment lawsuit against SFSU as part of FIRE’s Speech Code Litigation Project (the predecessor to our Stand Up For Speech Litigation Project).

The plaintiffs in that suit were the SFSU College Republicans and two of the group’s members, undergraduates Leigh Wolf and Trent Downes. SFSU’s College Republicans were put on trial for “incivility” by a campus tribunal for stepping on paper replicas they had created of Hamas and Hezbollah flags as part of an anti-terrorism rally they held in October 2006. Unbeknownst to these students, the flags of the two organizations contain the word “Allah” in Arabic script. FIRE wrote twice to SFSU to stress that a public university cannot lawfully prosecute students for engaging in peaceful protest or for “desecrating” flags of any kind. The university ignored this warning, and a university spokesperson told the San Francisco Chronicle that the issue was not flag desecration but rather “the desecration of Allah.” SFSU dragged the students through a five-month investigation and hearing before ultimately clearing the group of charges.

The College Republicans’ speech code lawsuit was successful: in November 2007, a federal magistrate judge ordered SFSU to stop enforcing a vague SFSU policy requiring students to act in accordance with SFSU “goals, principles, and policies” and a California State University system-wide policy requiring students “to be civil to one another.” The judge’s decision was a powerful vindication of college students’ First Amendment rights, one which we frequently cite to this day.

Double standards are corrosive and violate the basic premise that universities will treat their students equally when it comes to free speech and due process. It is not surprising, therefore, to see students who believe they’re on the less-favored side of the standard asking for the same treatment that benefits their ideological opponents. But the answer is not for the university to crack down equally on everyone’s speech (unless that speech leads to a heckler’s veto or is otherwise unprotected, as some of the counts in the lawsuit allege). The answer is that universities must vigorously defend all of their students’ protected speech, regardless of whether that speech aligns with administrators’ own ideological sympathies.

Schools: San Francisco State University