There’s some good news for students at some of Pennsylvania’s biggest public institutions this week—your institutions just got one step closer to protecting free speech instead of suppressing it. FIRE Legal Network attorney (and former president) David French, now working with the Alliance Defense Fund (ADF), has filed a nine-count First Amendment lawsuit against Penn State for violating its students’ right to due process as well as their freedoms of expression, association, conscience, and religion. For good measure, he also challenged their unconstitutional “free speech zone” policy. At the same time, French filed a lawsuit against Temple University for retaliation, breach of contract, conspiracy to violate civil rights, violation of freedom of expression, and other charges.
A review of the legal complaint against Penn State (PDF) makes an extremely convincing argument that Penn State’s speech code policies, which have been rated “red” by FIRE’s Spotlight, violate many of the First Amendment’s guarantees. For instance, Penn State defines “harassment” in part as “unwelcome banter, teasing, or jokes that are derogatory, or depict members of a protected class in a stereotypical and demeaning manner”—a laughably broad definition that encompasses a great deal of constitutionally protected speech. Penn State also bans “intolerance” (actually, it says “Acts of intolerance will not be tolerated”—which Mike Adams tears apart in his Townhall.com column), and confines free speech to a number of zones on its campus.
The case against Temple (PDF) (also rated “red” by FIRE) is more complicated and not only challenges Temple’s speech code (here’s a sample: it defines “Gender Harassment” as “[g]eneralized sexist remarks and behavior…that convey insulting, degrading or sexist attitudes about women and men”) but involves discrimination and retaliation against a student in the military who appears to have been punished for disagreeing with a professor’s antiwar views.
With policies like these, Penn State and Temple have been begging for something like this to happen. With each passing year, there is less and less of an excuse for universities to honestly believe that overbroad speech codes, “free speech zone” policies, and discrimination against religious groups will survive legal muster. In fact, FIRE has had two cases at Penn State, and President Spanier is perfectly aware of Penn State’s constitutional and moral obligations to protect free speech.
Why then, do these universities persist in promulgating unlawful rules? The answer may be as simple as that they think they can get away with it. It’s an unfortunate fact that speech restrictions, for whatever reason, are far more popular with college administrators than with students or the general public. Further, these administrators seem not to believe that they will ever get caught at it—they know that few college students would risk jeopardizing their career prospects from the very beginning by challenging an unfair policy. Those students who do so are courageous, but they are in the vast minority. Administrators, ideologues, and risk managers weigh these concerns, and in all too many cases, they decide that the supposed “benefits” of censorship (which are almost always illusory) outweigh the potential legal and PR drawbacks of getting caught.
It is FIRE’s job, and the job of attorneys like David French, to change this cost/benefit calculus. FIRE’s advocacy, as well as its Speech Codes Ligitation Project (currently challenging an unconstitutional speech code at Troy University in Alabama) is part of this process, as are the twin lawsuits filed this week by David and ADF. With these lawsuits, though, we have high hopes that students at Penn State and Temple won’t have to wait too long.