Public universities, the United States Supreme Court has observed, are marketplaces of ideas n1 subject to the strictures of the First Amendment n2 protection of free speech. n3 It is axiomatic that "administrators on state campuses are state actors and thus are subject to the negative directive of the First Amendment that government ‘shall make no law . . . abridging the freedom of speech.’" n4
Despite these facts, the Supreme Court has "never denied a university’s authority to impose reasonable regulations compatible with [their educational] mission upon the use of its campus and facilities." n5 And it is equally clear, under both judicial precedent and the policies adopted by many universities, that not everyone is entitled to speak in the educational marketplace. n6
Today, tension runs high between the notion of a university as an uninhibited marketplace of ideas and the ability of administrators to control — through power, policies and persuasion — the speech activities of students, faculty and others. Battles are being waged on campuses across the United States. n7 Cases and disputes run the gamut, from those involving policies such as speech codes n8 and free-speech zones n9 to individual instances of expressive protests such as affirmative-action bake sales. n10
Recently, however, as columnist John Leo observed in U.S. News & World Report, "the fog of censorship on campus is beginning to lift," thanks in part to groups such as "the Philadelphia-based Foundation for Individual Rights in Education ("FIRE"), which is now a major player in the campus wars. These groups have been winning free-speech cases one after another, creating momentum that is forcing many censorship-minded administrators into a defense crouch." n11
For instance, in 2003, Citrus College in Glendora, California, agreed to: 1) scrap its free-speech zone; 2) design a new one; and 3) pay $ 24,500 for student Chris Stevens’ legal fees after a FIRE attorney filed a lawsuit in federal court on his behalf challenging the zone in May 2003. n12 The result, as the Chronicle of Higher Education wrote, "signaled the first victory for [FIRE] in its new campaign to do away with such codes at public colleges." n13 The community college apparently was swayed by FIRE’s legal pressure, as "a day before college officials were to appear in court, they rescinded the speech-related policies that Mr. Stevens and FIRE had called into question." n14 The victory was a harbinger of things to come for FIRE.
In another 2003 case — this one drawing attention from The New York Times — FIRE acted on behalf of several students and "filed suit against Shippensburg University in Pennsylvania, charging that its code of conduct violates students’ constitutional rights to free speech." n15 At the time the lawsuit was filed, Alan Charles Kors, then the president of FIRE, called speech codes "a moral, educational and legal scandal in American higher education. A nation that does not educate in liberty will not long preserve it and will not even know when it is lost." n16 Six months later, in September 2003, FIRE prevailed in Bair v. Shippensburg University where a federal judge issued a preliminary injunction preventing the university from enforcing several provisions of its speech code. n17 A FIRE representative called the decision "a great victory and a vital step in the struggle against the scandal of unconstitutional campus censorship in public colleges and universities." n18
More recently, in May 2004, the California Polytechnic State University in San Luis Obispo agreed to expunge 23-year-old student Steve Hinkle’s disciplinary record and to pay $ 40,000 of his legal fees after FIRE filed a lawsuit on his behalf. n19 Hinkle, President of the Cal Poly College Republican Club, was found "guilty" by the Cal Poly Judicial Affairs Office of disrupting a campus event and ordered to write an apology to offended students after he posted fliers in the school’s multicultural center advertising a speech by Mason Weaver, author of It’s OK to Leave the Plantation. n20 Weaver is "a black conservative author" n21 who "argues that dependence on government programs is harmful to the black community and puts it in circumstances similar to slavery." n22 After the settlement, Greg Lukianoff, FIRE’s director of legal and public advocacy and one of the individuals whose insight, thoughts and beliefs are at the heart of this law journal article, remarked that Hinkle "didn’t do anything wrong, period, ever." n23
For Lukianoff, the Hinkle incident is both unfortunately common and indicative of a larger problem of public policy that stifles expression. As Lukianoff wrote in the Washington Times, there has been a "systematic erosion of students’ rights on campuses across the country." n24 He believes that many universities essentially tell students "they have a right not to be offended and if they are offended they should run and seek an administrator." n25 It is not surprising, then, that the organization for which Lukianoff works, FIRE, has been described in the mainstream media as a "civil liberties watchdog" n26 that is "at the forefront of free-speech litigation" n27 on the nation’s campuses. n28
FIRE scored another victory in its civil liberties watchdog role in September 2004 in Roberts v. Haragan. n29 The case, which "was coordinated by FIRE and filed by the Liberty Legal Institute and the Alliance Defense Fund against Texas Tech University President Donald R. Haragan," n30 was brought in federal court on behalf of a student, Jason W. Roberts, who wanted to express on campus his views that homosexuality is wrong and immoral. n31 Roberts challenged the constitutionality of several policies impacting speech at Texas Tech, a public institution located in Lubbock, Texas subject to the strictures of the First Amendment. n32 Those policies included both a speech zone that identified so-called designated forum areas for expression n33 and a speech code, n34 as well as a "General Policy that prioritizes use of the campus space or facilities according to whether that use will ‘serve or benefit the entire university community.’" n35 Texas Tech also had a "Prior Permission section" n36 that required students "to acquire a permit at least two business days before engaging in protected speech on the campus outside of the designated free-speech zones but in areas of the campus that are public forums nonetheless." n37 Finally, the university also adopted a policy affecting the distribution of printed materials on campus. n38
On September 30, 2004, Federal District Court Judge Sam R. Cummings: 1) invalidated Texas Tech’s speech code "on the basis of overbreadth as applied to public forums on campus;" n39 2) held that "the Prior Permission section is not narrowly tailored and therefore it is unconstitutional because it sweeps too broadly in imposing a burden on a substantial amount of expression that does not interfere with any significant interests of the University;" n40 and 3) ruled that the policy affecting the distribution of printed materials is "unconstitutional for the same reasons stated above in addressing the Prior Permission section, i.e., failure to have regulations that are not narrowly tailored and that therefore sweep too broadly in imposing a burden on those expressive activities that implicate no significant University interest." n41
Judge Cummings did not declare unconstitutional Texas Tech’s free-speech zone policy. Nevertheless, he greatly expanded that policy’s reach, which had designated only six "forum areas" on campus for free expression, n42 by declaring that "to the extent the campus has park areas, sidewalks, streets, or other similar common areas, these areas are public forums, at least for the University’s students, irrespective of whether the University has so designated them or not. These areas comprise the irreducible public forums on the campus." n43
In important dictum both favoring the First Amendment rights of college students and replete with rhetorical flourishes lauding the marketplace theory mentioned in the Introduction of this Article, Judge Cummings wrote:
The University’s interest in an orderly administration of its campus and facilities in order to implement its educational mission does not trump the interest of its students, for whom the University is a community, in having adequate opportunities and venues available for free expression. Indeed, those who govern and administer the University, above all, should most clearly recognize the peculiar importance of the University as a "marketplace of ideas" and should insist that their policies and regulations make adequate provision to that end. n44
With FIRE quickly gaining both prominence in the media and success in its litigation battles, this Article for the first time provides an in-depth examination of the organization and its activities as they affect freedom of expression issues in higher education today. The Article’s centerpiece is an exclusive interview conducted by the authors in August 2004 with both Greg Lukianoff, FIRE’s director of legal and public advocacy and the organization’s point person on many of its legal battles, and David French, FIRE’s recently installed president and the organization’s lead attorney in its victory in federal court against Shippensburg University. Lukianoff, in turn, testified before the U.S. Senate Committee on Health, Education, Labor, & Pensions in October 2003 on the topic of censorship on college campuses. n45 In this article, Lukianoff and French articulate their own views and those of FIRE on a wide range of timely and important issues, including:
Speech codes, free-speech zones and mandatory student activity fees;
Considering affirmative-action bake sales a form of expression when they protest admissions policies that factor in a college applicant’s race or ethnicity;
The often blurry line between offensive expression protected by the First Amendment and sexual and racial harassment that is not protected;
The growing culture of suppressing dissenting viewpoints in academia within which students are taught at an early age that they have a right not be offended by another person’s message;
The current and controversial movement for an "Academic Bill of Rights" to protect students’ free speech rights at public universities;
FIRE’s strategies and tactics for dealing with university administrators on questions of free expression; and
FIRE’s relationship and interaction with other civil liberties organizations, such as the American Civil Liberties Union and the Alliance Defense Fund, and whether FIRE sees itself as driven by a conservative agenda that excludes and precludes actions on behalf of left-leaning organizations.
In addition to addressing these subjects and others, in this article Lukianoff and French speak more generally about the membership, mission and goals of FIRE; its sources of funding and support; its successes to date; and their own involvement in the organization. Lukianoff and French also provide their views on the purpose and meaning of the First Amendment’s protection of free speech and free press.
The remainder of this Article is divided into three parts. Part II describes the interview’s setting, as well as the methodology used in both the interview and writing process. n46 Part III presents the interview in a question-and-response format broken into five separate sections each on a different topic or theme, and each prefaced with introductory material. n47 Finally, Part IV analyzes Lukianoff’s and French’s comments and provides the authors’ conclusions. n48
II. THE SETTING
The interview with Lukianoff and French took place on Monday, August 23, 2004, at FIRE’s headquarters in Philadelphia, Pennsylvania. The organization occupies a suite of offices on the third floor of a high-rise building overlooking historic Washington Square. It is a fittingly appropriate location for an organization that defends civil liberties; immediately behind the park’s life-size statue of George Washington is the "Colonial Wall," inscribed with a simple yet powerful statement: "Freedom is a light for which many men have died in darkness."
Above the park, one of the walls of the conference room where the authors sat down with French and Lukianoff boasts a framed original of a 1999 Washington Times article commemorating the founding of FIRE. Another wall is lined with books on higher education and censorship with provocative sounding titles such as Surviving the PC University, n49 The Myth of Political Correctness, n50 and The Diversity Myth. n51
One shelf is filled with more than a dozen copies of The Shadow University: The Betrayal of Liberty on America’s Campuses, a 1998 book co-authored by University of Pennsylvania Professor of History Alan Charles Kors and Boston-based civil liberties attorney Harvey A. Silverglate. n52 Kors and Silverglate founded FIRE together in 1999, and Kors currently serves as the chair of its board of directors while Silverglate is the vice chair. n53 One review of The Shadow University called it "a blistering new book," n54 and another described it as "a hybrid of report and polemic stirred by outrage that today’s American universities and colleges — like our families, corporations, newspapers and football teams — are not paradigms of freedom." n55 A third critique portrayed the tome as "a thoroughly depressing account of the state of free speech and academic inquiry on U.S. campuses" n56 and "a harsh, angry work of two men whose cherished liberal notions — right to dissent, to justice, to equal treatment under the law — have been hijacked by petty tyrants." n57 Silverglate and Kors may, indeed, have been angry at the time the book was published; they wrote in an opinion commentary published around the same time that "the notion that undergraduates should use their college years to come to terms with life and with their fellow human beings through a process of mutual enlightenment and education has been replaced by an authoritarian system that robs students of their liberty to think and speak as they wish." n58
Today, David French and Greg Lukianoff — the former is a graduate of Harvard Law School while the latter is an alumnus of Stanford Law School n59 — carry on the work that Kors and Silverglate began. While French works out of the Philadelphia office, Lukianoff works from home in his Brooklyn, New York apartment and commutes to FIRE’s headquarters once a month.
The interview lasted approximately two-and-a-half hours. It was recorded on two different audiotapes that were later transcribed by a professional secretary and then reviewed by the authors. The authors made minor changes in syntax, but did not alter the substantive content or meaning of either French’s or Lukianoff’s comments. Some of the questions and responses were reordered to reflect the themes and sections in Part III of this Article, and other portions of the interview were deleted as extraneous or redundant.
A copy of the revised transcript was then forwarded to French and Lukianoff in October 2004. One month later, Lukianoff returned the transcript with minor syntactical revisions — the authors inputted all of these changes — and a separate signed statement verifying that the transcript, with those changes, accurately reflected their remarks. Copies of those verifications are on file with this law journal.
Importantly, neither French nor Lukianoff exercised any editorial control over either the conduct of the interview or the content of this Article. They did not, in fact, review the Article itself before it was submitted to this journal. French and Lukianoff only reviewed the raw interview transcript.
For purposes of full disclosure and preservation of objectivity, it should be emphasized that neither of the authors of this Article has ever worked for or on behalf of the Foundation for Individual Rights in Education. Furthermore, the authors are neither members of FIRE nor do they contribute financially to it.
III. THE INTERVIEW
This part of the Article is divided into five sections, each of which includes a brief introduction to the section’s theme, followed by excerpts from the Lukianoff and French interview in a question-and-response format. The authors have added footnotes, where relevant, to both the questions and responses to enhance details, define concepts and provide citations to cases mentioned.
A. FIRE: About the Organization, Its Goals and Its Agenda
The Web site for FIRE proclaims that the organization’s mission is "to defend and sustain individual rights at America’s increasingly repressive and partisan colleges and universities." n60 The charge that universities stifle rights, however, is nothing new; n61 in a 1991 ground-breaking book, Illiberal Education, Dinesh D’Souza wrote that "hostility to free expression in the name of race and gender sensitivities is now the norm, not the exception on the American campus." n62 In that same year, Professor Nicholas Wolfson wrote that "lately, politically correct thinking has been enforced on many campuses — not merely hard scientific correctness — only one species of which is the attempted banning of racist and sexist epithets in or outside the classroom." n63
Today, more than a dozen years later, the problems identified by D’Souza and Wolfson still exist. FIRE has taken up the cause of eradicating them, and it has gained the praise of several First Amendment scholars. n64 In this section, David French and Greg Lukianoff discuss the current goals of FIRE when it comes to defending free speech on campus. They also address and attempt to refute the perception of some that FIRE is strictly a conservative-based organization, and they describe the organization’s funding and membership. French and Lukianoff also talk about their own involvement with FIRE.
QUESTION: What are the primary goals of FIRE in 2004 and 2005 as they relate to freedom of expression on college campuses?
FRENCH: We want to become more proactive in attacking speech codes and other unconstitutional policies that impair speech and academic freedom, including at private universities, rather than waiting for a case to arrive. There are policies out there that are unconstitutional on their face. Instead of waiting for that one student out of 100 who has the courage to take on his or her own administration, we want to be more proactive.
QUESTION: Would you say, then, that in the past you’ve been more reactive, waiting until a case came to you, rather than going on the offensive?
FRENCH: Not entirely reactive, but FIRE made its name in cases that involve a student or professor coming forward after an incident has occurred or something already has happened.
There has been, however, a lot of proactive work. For instance, we have a new guide to free speech on campus coming out that Greg and I co-authored along with Harvey Silverglate, n65 one of our co-founders. The release of that guide provides an ideal opportunity to begin a process of educating administrators, university counsel and other decision-makers in university systems as to what they can and cannot do with respect to students’ free speech rights.
QUESTION: SO you’ll be seeking litigants on campuses?
FRENCH: Yes and no. We’ll be seeking litigants, but we’ll also be looking at policies and contacting administrators directly, alerting them that a policy is unconstitutional and needs to be changed.
QUESTION: Greg, do you see it more as an educational mission or a litigational mission?
LUKIANOFF: Education certainly is part of what we do and we’ve been doing more of it. An organization that we didn’t have, to say the least, the best relationship with was the Association for Student Judicial Affairs. n66 At one time, I believe it ran a seminar on how to deal with FIRE.
Now, every year, we offer a seminar to administrators of student justice on campus. This year we plan to run one about common legal misunderstandings among administrators because we see cases where it appears that administrators or students are going after an expression or message simply because it bothers or annoys them; they’re willing to do whatever it takes to punish it. But there also is clear evidence that there are sincere misunderstandings of the law that are widely held and, in some cases, propagated out of ideology or sometimes out of fear of liability. Liability is a major concern in shaping the way universities react to situations involving free expression.
QUESTION: Tell us a little bit, please, about the organization. How many members does FIRE have? How do they break down in terms of attorneys, students and professors?
FRENCH: There are about forty or fifty active members in our attorney network. As of next Monday, I believe we’ll have nine full-time staff members, and there are anywhere from two to ten interns and part-time workers at any given time.
LUKIANOFF: One of the greatest compliments I ever received took place at an Association for Student Judicial Affairs conference. For a long time, I was the only attorney on staff at FIRE. I was at a presentation and a person who runs an organization that we often butt heads with referred, during a speech, to FIRE as "a team of ACLU attorneys." I felt very proud.
QUESTION: What organization was that?
LUKIANOFF: It’s the National Center for Higher Education Risk Management. n67 In a lot of situations, it teaches university administrators how to get away with the least amount of due process. To be fair to the organization, however, after attending other seminars, I realized that in some cases NCHERM actually advocates more rights than some administrators want to give. In some of their seminars they actually say, "Well, no, students have the right to do that." But there still is a big focus, in some cases, on the least amount of liberty administrators can get away with in order to make their jobs easier.
FRENCH: Right now, we have three full-time attorneys, including me, on the staff.
LUKIANOFF: A lot of positions that used to be filled by non-attorneys are now staffed by attorneys. The First Amendment knowledge certainly comes in handy.
QUESTION: Can you please describe the funding sources for FIRE? I think there is a perception that it is funded by right-leaning organizations.
FRENCH: We’re supported primarily by individuals; a pretty significant majority of our funding last year came from individuals. We have several thousand individual donors, so I don’t know where they break down on the political spectrum. I know there are some who are conservative, some who are libertarian and some who are on the left end of the political spectrum. A significant minority of funds comes from foundations that tend to be conservative, but certainly not all of them.
QUESTION: Would you consider FIRE to be a conservative organization, a liberal organization, or a civil liberties organization?
FRENCH: It’s definitely not a conservative organization; that is something that is very important to emphasize. Our staff has people on the left and right. It’s probably the most politically diverse office I’ve ever worked in during my career.
LUKIANOFF: Same here.
FRENCH: We absolutely strive to be consistent in that we defend civil liberties. If conservatives are having their civil liberties violated, we will leap to their defense. If it’s someone on the left side of the spectrum whose civil liberties are being violated, we will leap to their defense with equal intensity. That’s something we take a great deal of pride in. It’s critically important to us because, as our co-founder, Professor Alan Charles Kors, is fond of saying — I’m paraphrasing him — "Our civil liberties aren’t a means to a particular end but, instead, are a way of being human." The reason why I think people often listen to our point of view on this is because they know that FIRE is not trying to backdoor in a new ideology. They can’t say, "Oh, if we give in to FIRE, then we’ll be opening the door wide to the religious right or to the anti-globalization left." We are defending civil liberties for the sake of defending civil liberties.
FRENCH: We believe there is something critical about the identity of our nation, as a free country, that is at stake on these campuses. So I’m glad you asked that question because it’s very important to us. In fact, if you look at both our Web site and historically at our cases, you’ll see that, on a number of occasions, we have defended people on the left. For instance, I believe we represented a Marxist, feminist professor in Alaska. More recently, we issued a press release asking Catholic University to recognize the student chapter of the NAACP; that’s not typically something that a "conservative" organization would do.
QUESTION: What attracted you two to the organization?
LUKIANOFF: I went to law school to do First Amendment law because of the debate around the Communications Decency Act. n68 While in law school I took every constitutional law class I possibly could, and Kathleen Sullivan n69 recommended me for this position. Harvey Silverglate went looking for a legal director, and I was the person that she [Sullivan] recommended; it remains the greatest compliment I’ve ever received.
I was very impressed with the commitment and principle of Alan Charles Kors. FIRE really takes the principle of shared basic rights very seriously and it was a neat experience for me. I’m a liberal Democrat and suddenly I was working in an office where people didn’t even vote for the same candidates. Having people in the office who don’t agree with each other is tremendously fun, with the debates that we used to have in this office; it was really amazing.
One person that I often mention is Emmett Hogan. He was one of our program officers, a deeply committed Catholic who was just as passionate about free speech and liberty. If someone said the most loathsome things about Catholics or the most pro-choice sort of opinion, there was no hesitation whatsoever on his part to defend those people’s rights.
And I think it’s a wonderful thing to watch people really start to get it, really start to understand that it is part of a noble tradition to defend the free speech rights of all people. I almost feel like I’m cheating when I defend opinions I agree with!
FRENCH: AS for me, I practiced First Amendment law since the day I got out of law school at Harvard. I did it while I was in law school on a volunteer basis, doing research and writing for certain organizations. I became incredibly frustrated as time went on with the current model of political activism where you advocate freedom when you’re out of power and then, the instant you get in power, you’re all about respect for authority. You can go across the political spectrum and see that that’s the case.
Take one example — Berkeley, California, was the place where the free-speech movement started. Many of the graduates of that movement are now some of the most authoritarian administrators in the country.
FIRE thus was one of the few places where, if you wanted to be consistent in your advocacy for civil liberties, you could go. We live in a country that is divided red and blue — there’s all this talk about the red states and the blue states and how we’re increasingly polarized. n70 One of the nice things about doing consistent civil liberties work is that it’s actually a unifying exercise. If you can talk to somebody with whom you disagree on the war in Iraq or whether you’re going to vote for Bush, but you’re defending their right to be heard, that bridges a lot of gaps. You get a chance to actually talk to each other instead of at each other. And so, for me, this kind of work is not just consistent in principle but it also tends to be unifying over time. I deeply appreciate that.
LUKIANOFF: I think it’s partially the populist belief in free speech that’s been part of American history; people sometimes have to be reminded of it, but they often understand it once they are reminded. One of the things that attracted me to this field was that I’m a history buff, and I have always deeply admired the role of the civil libertarian in American history and who that person was, which has changed so much depending on which era you’re talking about.
From a historical perspective, what FIRE’s involved with and the results that come out of things like speech codes are woefully predictable. I have described in speeches why we shouldn’t have speech codes when dealing with the argument of "Well, we want these codes to deal with truly offensive speech and we have the best of intentions." I always try to remind people that there never was a censorship movement in which the people doing the censoring believed they were doing evil things. It’s always supposedly noble goals.
I had a debate with Richard Delgado, n71 and the way I explained it to the crowd was there’s always self-righteousness in censorship movements. The one thing that I think compares best to what we see now on college campuses is the Victorian movement towards "moral purity." They believed they were the right people to control ideas of propriety and decency. I explained it as putting a magic box on a desk and saying, "Here’s a magic box. If you open it, you have infinite power over your enemies. I’m going to leave the room. Nobody open it." You end up with very impassioned arguments — "Are you saying that if you have rules that defend the rights of women, minorities and sexual minorities, that these people would abuse them?" I try to get away from that idea; instead, I’m saying that people, in general, do abuse power — that if they are given the option to silence someone that said something that they truly hate, then all too often they’ll take it. It’s almost human nature.
FRENCH: Absolutely, especially if you believe that you are right. They see no social cost to shutting down that which is wrong.
FRENCH: AS Greg said, I’ve never met anyone who held an opinion that they believed was wrong. Of course administrators believe they’re right and that they’re doing the right thing by silencing dissent. One of our biggest challenges is persuading the people who hold the reigns of power that there’s a positive social good in allowing a voice that they believe to be wrong to be heard.
LUKIANOFF: A good example of that was the affirmative-action bake sales last year. The sales were protests that conservative students had all over the country — of questionable taste, to be sure — where they sold baked goods at different prices, depending on a student’s race, to make their point that affirmative action is unfair. Incidentally, they mirrored gender-equity bake sales that women’s groups have been holding for years.
QUESTION: SO it wasn’t really a new idea?
LUKIANOFF: It wasn’t a new idea. It was just applied in a way that ruffled a lot more feathers. There were different attempts to shut these down all over the country. As a practical matter, they were bringing so much more attention to this situation by trying to censor it than if they had just let the protest go. What ended up happening in a lot of these cases was that FIRE entered, said that this was wrong and, if it was a public college, unconstitutional. In some cases the students would have the bake sales again. At the University of California at Irvine, it went virtually unnoticed — nobody even bothered to protest. In other cases, such as the University of Colorado, it was just met with a counter protest, as it should be.
QUESTION: YOU gentlemen clearly are passionate about what you do. What would be, perhaps, the most important or significant accomplishment that you’ve had in terms of freedom of expression here at FIRE?
LUKIANOFF: A single one?
FRENCH: From my perspective, it is that FIRE has been unique among civil liberties organizations in persuading private institutions to open themselves up to dissent and to, essentially, voluntarily agree to become free marketplaces of ideas. Again and again I have seen public interest organizations say, "That’s a private school. We’re not going to worry about that. We can’t do anything about that."
In fact, FIRE’S first big case involved a Tufts’ Christian Fellowship being thrown off the campus. Tufts is a private school. n72 I was the lawyer for the Tufts’ Christian Fellowship at that time — not because I was the first choice, but because I was, in fact, the last choice. All of the major public interest law firms the fellowship contacted said, "No thanks, we don’t touch private organizations." But what FIRE realized was that private organizations are open to persuasion in the court of public opinion.
What we’ve done is to say that these private organizations are training the country’s future leaders and they should not be immune from either scrutiny or persuasion. So while our free speech work in public universities has been, in many ways, very innovative, it is the work in private organizations that I think has been the single greatest accomplishment, if you had to pick one, in terms of our general impact on the culture of higher education.
When you think about the influence of private colleges and universities on our society, five of the nine Supreme Court justices came from just one private law school and maybe eight of the nine went to private law schools. Both candidates [George W. Bush and John F. Kerry] for president went to a private university. Congress is over-populated with private university graduates. If all of these individuals go to institutions that are immune from both public scrutiny and advocacy for civil liberties, they will carry that value with them into society and begin to change it in a fundamentally bad way. I think that is one thing that stands out if you forced me to point to one.
LUKIANOFF: I have two different answers. Personally, the cases that I tend to enjoy the most, take the most pride in and think have actually made the biggest policy impact on colleges and universities are "free-speech zone" cases. When we started taking these cases back in 2001, they weren’t in the public eye. We took a case and advocated very strongly against a policy at West Virginia University that reduced all of the free-speech activities to one tiny zone about the size of a classroom. We discovered quickly that these policies existed all over the country.
I spent a lot of time on the West Virginia University case in constant exchanges explaining why it was not only wrong but also ridiculous and certainly a betrayal of what a university is supposed to be. We always point out that universities are supposed to be free-speech zones for the larger society. But the zones developed from abuse of the time, place and manner doctrine. n73 We always emphasize that they are called reasonable time, place, and manner restrictions. There’s nothing reasonable, however, about turning 99 percent of a public university into a censorship zone.
We’ve been very successful in defeating speech zones at different schools across the country. The one I most enjoy bringing up is the free-speech gazebo at Texas Tech University. n74
FRENCH: It was the sole place on campus.
LUKIANOFF: Exactly, the sole place on campus — a 20-foot-wide gazebo with a 280-square-foot roof. One of my friends with a math degree from MIT figured out that if all 28,000 students at Texas Tech wanted to exercise their free speech rights at once, you would need to pack them in at the density of uranium 238.1 laughed at first, but he wasn’t kidding.
QUESTION: It’s like one of those Mini Cooper clown cars. How many clowns can you fit into one car?
LUKIANOFF: AS far as a really resounding policy victory for FIRE, it occurred after FIRE had been somewhat alone in the wilderness, repeatedly arguing with universities that a student being offended was not the same thing as a student being harassed under federal law. We were always trying to explain almost basic civics about where the First Amendment is and where federal regulations are and how the Office of Civil Rights of the Department of Education cannot pass regulations that violate the First Amendment. But people sometimes treated that statement very skeptically. In July of 2003, however, the Office of Civil Rights wrote a letter of clarification saying exactly what we’d been saying for years — that harassment is a much more serious pattern of severe and pervasive behavior. n75 It was what we’d always been arguing true harassment was. That letter has been a very useful tool – now it is not just FIRE arguing what harassment is, but we have the OCR letter. In the past, universities would always claim that "the OCR is making us do it." Well, now they don’t have that excuse.
QUESTION: HOW does FIRE perceive itself in relationship to other advocacy groups, specifically the American Civil Liberties Union and the Alliance Defense Fund? Do you ever work with or against these organizations or other organizations that deal with speech issues in education?
LUKIANOFF: The organization that we’ve had the best overall cooperation with consistently is the Student Press Law Center. I’m always there to plug the SPLC. It does great work.
FRENCH: We will work with an organization that agrees with our point of view on a particular issue. We don’t have a politically correct litmus test that we apply to these organizations. If they’re willing to work with us on a campus issue, we want to work with them. We have worked with the ACLU and we’ve worked with the Alliance Defense Fund, and those are two groups that are often opposed to each other.
I have enormous respect for litigators in both organizations. I want to work with anyone who wants to defend liberty on campus. If they have a point of view that FIRE might disagree with off campus, that’s fine. We are looking for allies from all across the political spectrum. We have a list of allies that gets kind of interesting. If you look at the back cover of our Guide to Religious Liberty on Campus, for example, our first endorser is Nadine Strossen. Our next one is Ed Meese. Our guide thus is approved by the president of the American Civil Liberties Union and by the attorney general under former President Ronald Reagan. This sends the message to colleges and universities that we’re not coming at them with a particular political agenda.
LUKIANOFF: Since we’re talking about alliances, there’s a case going on right now at Occidental College in Los Angeles. This is a situation where a student was a "shock jock" and had a radio show for three years. He also was in the student government and allegedly made fun of two members of student government — one male and one female — on his radio show. He was brought up on charges of sexual harassment, and he was fired from the radio show. The administration used it as an excuse to dissolve the student government. Kent State didn’t even take such drastic action at the height of the riots.
This move meant that the university absorbed control of nearly one-half of a million dollars of student fees. When we brought this to the attention of the college’s general counsel, he sent us a response that flatly misrepresented the facts of the case — a clear effort to scare off FIRE and to scare off the ACLU, which was considering joining the case. We were pretty tenacious, so we wrote a 28-page letter refuting every point in the general counsel’s letter. We put together this coalition consisting of FIRE, the ACLU of Southern California, David Horowitz’s Students for Academic Freedom and, of course, the Student Press Law Center. That case is still going on.
FRENCH: That group of organizations probably hasn’t been together on too many things.
B. Free Speech & Marketplace of Ideas v. The Culture of Campus Censorship
The First Amendment to the United States Constitution provides, in relevant part, that "Congress shall make no law . . . abridging freedom of speech, or of the press." n76 This constitutional directive applies to public colleges and universities, and in some cases, private institutions, n77 when they seek to restrict the speech of campus dwellers, such as expression that appears, at least to some people, to constitute harassment. At first blush, institutions of higher learning should be the last place where one would expect speech of any form to be abridged. After all, even the Supreme Court has observed that "the college classroom with its surrounding environs is peculiarly the ‘marketplace of ideas.’" n78
But how valid is the marketplace metaphor n79 on campuses today? In light of the numerous instances in which FIRE has had to intervene, it is arguable that at least some institutions do not view themselves as a forum where all ideas are welcome and where robust debate about those thoughts are encouraged. Indeed, clamping down on ideas that flow against the mainstream ideals of universities has become an acceptable tactic on some campuses. For instance, at the University of Rhode Island, officials halted funding for a College Republican newspaper in 2003 because they objected to the content in the September 30th edition. After the incident, the student editor of that newspaper observed, "You’re not automatically a bigot if you don’t agree with (homosexuality). What they’re essentially doing is silencing the only conservative voice here on campus." n80
In this section, French and Lukianoff address the importance of promoting First Amendment values in higher education, even if that means a legal challenge to make administrators take notice. They begin this discussion by attempting to distinguish protected and unprotected expression.
QUESTION: In terms of your own beliefs, where do you draw the line between the First Amendment right to offend n81 and harassment?
FRENCH: That’s a very good question. I think the OCR letter is very eloquent on that point. n82 The question is: Is someone being denied the ability to get an education? Is the speech so severe and pervasive that someone literally cannot receive an education? That’s the way the OCR letter puts it, and I think that’s a good way of thinking about it.
If you think about what constitutes sexual harassment in the workplace, it’s something so severe and pervasive that the harassment literally becomes the equivalent of a term or condition of employment. In other words, just like you get your paycheck every second week, you get harassed every day.
Administrators were saying, "Well, if I feel angry — if I’m really upset and my feelings are hurt — that is harassment." But there’s nothing about being angry or having your feelings hurt that prevents you from getting an education. In fact, sometimes becoming angry and getting your feelings hurt are part and parcel of your education.
QUESTION: We see a lot of students coming in today as freshmen who seem to believe that the First Amendment protects them from hearing or receiving offensive speech. Does this problem start in high school or from where do you think it develops?
FRENCH: It’s part of an education culture that says, from day one, that the worst thing that ever can happen to you is to have your feelings hurt. You’ve got a self-esteem movement that says everything about school should be lifting you up and exalting you. I just read an article, in fact, that says that red ink pens are going out of favor because red is too shocking of a color for fragile students to see on their papers.
If you go from an elementary school to a secondary school where everything is about lifting you up — you’re the most brilliant C student ever — and then you get to college and somebody says something on the opposite side of an issue that you feel passionately about, the next thing you know they’re not only saying something opposite of what you believe, but also denigrating your point of view. That’s a reaction that’s fundamentally wrong. So what we’re seeing in universities is the product of a larger culture, and what we’re trying to do at FIRE is change the larger culture at the point of these universities.
QUESTION: Are you concerned about that — the larger culture that starts in the elementary school and builds right up to the university? Will there be a time when those are the people who we are going to be drawing from to become judges and so forth? Or do you think the First Amendment will always be there to protect students?
FRENCH: I’m incredibly concerned. Our First Amendment freedoms are incredibly fragile. Universities are such a critical point in this struggle because what happens at universities not only goes up to the government into the judiciary, it also trickles down into secondary and elementary education. So if you have graduate schools of education, for example, teaching their students that you deal with offensive speech by shutting up the offender, that goes down into the high schools and elementary schools. But if, instead, you have a graduate school of education teaching you how to answer the offender, then that’s a very different kind of message.
The same holds true within law schools. One of the saddest things about my experience at Harvard Law School was that I found that the ability to openly express my point of view, which was in the distinct minority as a conservative at Harvard, was minimal. I had less of a feeling that dissent was welcome at Harvard than I did at the conservative Christian school I attended in Nashville, Tennessee. I know that students felt more free to dissent from the party line at this conservative, private Christian school than they did at Harvard Law School — a school that advertises itself as being open to a wide variety of points of view and that supposedly celebrates diversity.
What happens to our society if the judges and politicians trained at Harvard leave that school thinking the proper way to meet dissent is by silencing it? I don’t pick Harvard just at random; in fact, it came very close recently to implementing a speech code. n83 That it would even consider a speech code — what kind of a message does that send to our future leaders?
QUESTION: Well, let’s flip over to Stanford, then, to talk about Corry v. Stanford n84 involving both the so-called Leonard Law n85 that transformed Stanford into a public entity for purposes of speech protection and the speech code at Stanford. n86
FRENCH: The situation where you have law school professors at Stanford defending the ability to restrict speech?
LUKIANOFF: Yes, but it was considerably before I started at Stanford. Robert Corry, n87 however, now is a member of our legal network.
It’s strange because a lot of people who were around for the really passionate pro-speech-code movement of the late 1980s and early 1990s haven’t felt the need to apologize for advocating speech codes. I haven’t talked to Tom Grey n88 about it, but I was horrified to find out he had anything to do with this.
This is one of the reasons why I compare it so often with the Victorians. There’s this weird sense of absolute moral self-righteousness — that it does not matter in any way what the results of passing a code are. Instead, it only matters that morality is maintained and codified.
And, yes, this does worry me a great deal. It’s something that I quip about — if you make it through four years of college without being offended, which also is known as having your deepest beliefs challenged, then ask for your money back. One of the things that I really try to emphasize is changing expectations. It is amazing that there are administrators who believe, as Alan puts it, that students coming in today are too weak to live with freedom. By creating an expectation of no psychological pain and no emotional hurt, universities are creating a completely unreachable expectation, and that is extraordinarily harmful. If colleges were, instead, to say to incoming students, "You’re adults now. We believe you’re intelligent and strong enough to deal with opinions that bother you, and we will provide you with resources in the student media so that you can," then I think that a lot more students would rise to the challenge rather than acting as they’re now told to, which is to report it immediately to the commissar of speech.
FRENCH: YOU need a re-education camp once you get to college, in a perverse way.
QUESTION: The United States Supreme Court has written that universities are marketplaces of ideas. n89 Based on what you’re saying, is the marketplace of ideas a valid rationale for free speech on college campuses today?
FRENCH: A lot of people use the language of a marketplace of ideas, but not [*226] many colleges actually follow through and deliver it. Free speech has such a strong hold as a value in our culture that even censors will say they believe in free speech.
LUKIANOFF: And that, historically, has always been true.
FRENCH: We’ve seen it again and again; a university will issue a letter that says, "We are a free marketplace of ideas. We believe in free speech." But it’s only just that – a letter.
I think that the marketplace of ideas analogy has a lot of moral force behind it, as evidenced by the fact that even people who are censoring speech will use it. But the proof is in the pudding. If you implement policies that ban annoying or offensive speech, then you’re not a marketplace of ideas and there’s no amount of rhetoric that can make you one.
We now have a culture with speech informants on campuses. We have a case right now where a college professor is being put on trial in a campus judiciary proceeding for not punishing protected speech. There was a conversation between two adult students who were mothers in a campus-run preschool program at Rhode Island College. They were talking at the preschool, and one said something that deeply offended the other. She took it to the boss and said, "Offensive speech — I’m offended. You need to punish her." And the boss rightly said that it was really just between the two of them. Then she was reported!
So we have this frightening culture teaching people that if they hear offensive speech, then they must report it to somebody. And if they don’t get satisfaction from that person, then they should keep going up the chain.
LUKIANOFF: In this case, it was the professor’s decision not to censure speech that constituted a form of discrimination. One of the main things, then, that we’re going to be talking about at the Association for Student Judicial Affairs conference this year is the abuse and misunderstanding of discrimination law.
QUESTION: TWO parts to this question. First, what in your minds is the primary purpose or reason for protecting freedom of expression in the United States? And second, more specifically, what is the primary purpose or reason for protecting freedom of expression on college campuses?
LUKIANOFF: It’s hard to pick one.
FRENCH: I would go back to something I said before. If you took a purely instrumentalist sort of approach that you’re trying to implement policies that have the greatest positive effect for the greatest number of people in all characteristics of life that are measurable, from prosperity to health to happiness, the United States, with all of its problems, does better in almost all of these areas of measurable human progress. To say that that’s not connected to free speech, free inquiry and free debate is, I think, irrational.
But you can go beyond that and say that with free speech you create a society that, in every way, is more morally livable — a society where you are able to become who you are supposed to be or who you aspire to be — than a society that suppresses speech. There’s an intangible value to that.
As our founders said, speech is a way of being human. You can’t put a price on that. It’s a way of life worth dying for and people, in fact, have died for it in distressingly large numbers. Our offices are near thousands of George Washington soldiers; that carries an enormous symbolic value to me, and I feel very privileged that we can defend their sacrifices for liberty through peaceful means of rhetoric and persuasion rather than what they had to use.
There is no substitute for free inquiry. In the societies where it hasn’t existed, I think human beings in those societies have suffered as a result.
LUKIANOFF: There’s a nasty tendency in human nature to excuse ideas that we disagree with as unbearable untruths and dangerous falsehoods. It happens time and time again — minorities and minority opinions are silenced because of their ability to disrupt the social order, particularly in a society as heterogeneous as the United States.
We need a rule that says we cannot have an official opinion and that we cannot officially sanction people on the basis of their opinions. Why? Because there’s no way to tell from where a good argument is going to come. To prevent the process of argumentation is to stifle the intellectual and personal development of your own citizens.
FRENCH: Why protect speech in the university? Because, quite simply, universities are the intellectual centers of our culture. They set the cultural and political tone for the rest of the nation in many very meaningful ways. Coming from a law firm and the corporate world, I can tell you that policy after policy regulating the interactions of human beings in the corporate world didn’t originate in corporate America. They originated, instead, in our universities. There’s policy after policy that originated not from the government but from the intellectual atmosphere of the university. So if you had to pick one institution that was most vital, aside from the family, for the long-term health of our society, I would say that it is our universities. They are our intellectual centers where people are thinking the thoughts that will guide the nation into the next century.
LUKIANOFF: Free speech has a tendency to keep people intellectually honest. If you have a situation in which people are able to advance any idea, particularly in a question-and-answer approach, that intellectual inquiry is more rigorous and held to a higher standard. Everything from scientific innovation to political revolution has either originated or been developed in our colleges and universities. To stack the deck in a way that says you can make all the arguments in the world except for some particular arguments can have a potentially disastrous outcome down the line.
FRENCH: Think about just one example: climate change. If you accept the argument of those who believe everything about climate change, it is one of the most significant issues facing mankind. If you accept the argument of people who have a different view, however, it is noise, not something terribly significant.
We’re talking about the direction of the economic and political direction of not just our nation but of the world. Notions of inhibiting free speech are even affecting that debate to the point where people who have dissenting points of view are subjected to smear campaigns. They are being told to shut up, that they shouldn’t even be published. The very notion that a scientific community could be affected with this after all of the experiences involving Galileo and others is mind-boggling.
The fact that the scientific community could say there are some things that are beyond inquiry or beyond questioning is difficult to comprehend. Think of the consequences for our society when we’re trying to answer questions that could bear on our fate as a human race. To say the university is going to sanction a policy or culture that says the dissenting points of view must be suppressed or silenced is dangerous.
QUESTION: If you could teach undergraduate students in the United States one or two key principles or lessons about the First Amendment’s protection of freedom of expression, what would it be and why?
FRENCH: The state of their feelings is irrelevant to the protection of the speech would be one of the first things I would teach just because it is so common for them to be taught the opposite point of view. In fact, feelings of hurt and being upset have been the genesis of so many complaints calling for restricting free speech. One of the first things I would say to them is that if you can understand one thing about the First Amendment, it is intended to protect speech that is offensive. Speech that pleases doesn’t need protecting.
LUKIANOFF: I would try to convey the point that the ideal and the ideas behind free speech are beautiful, powerful and compelling. If you live a life in which you argue honestly, listen carefully, show respect toward other people’s rights and defend their rights to listen and argue, that is healthy for society. I honestly believe that I lead a better life being part of these debates and understanding how important they are, rather than living in a world that stifles intellectual growth and doesn’t allow for the possibility that one’s own ideas can be wrong. Living in liberty can be a very liberating experience.
QUESTION: DO college students today care enough about what is happening on their campuses in terms of First Amendment freedom of expression rights or is it really just a select few who demand their rights?
FRENCH: I think if you ask any political activist organization, "Do college students on their campuses care enough about X?"
LUKIANOFF: They would say no.
FRENCH: They’ll always say no. Frankly, I don’t know what it means to care enough. I think there are enough students who care, which makes our work incredibly meaningful to an awful lot of people. There are people who don’t care now but will care at some point in the future and be glad for what we did. I don’t want to disparage college students, but I also don’t want to convey the impression that there’s some sort of enormous grassroots movement of free speech advocates on campus. There are enough people that care, at least to the point that the culture can change.
LUKIANOFF: I want to point out that the different student groups that FIRE has worked with are often much more dedicated than professors to defending free speech. We’ve worked very well with Christian groups. We’ve worked very well with Students for Economic Justice at West Virginia University. We’ve worked with anti-Iraq war protesters. We’ve worked well with a libertarian organization called the Sons of Liberty. These students all have different interests and are from all across the political spectrum, but so many of them are capable of having that feeling about what it means to be engaged and taking advantage of the fact that they do have freedoms.
FRENCH: Another thing is that when you communicate a consistent civil liberties message you can get people excited in that they’re not only doing what they’re doing just for themselves, but they’re fighting a much larger and more important battle.
LUKIANOFF: Here’s a good example. At West Virginia University, which is coming up a lot today, the group West Virginia Students for Economic Justice held a mock funeral for free speech with various people dressing up like, and playing the role of, Abraham Lincoln and others. One of the things that they would do is cheer for the people who criticized them. It made me very proud.
QUESTION: That actually ties into the next question. Many have said that the best remedy for speech with which we disagree or find offensive is not censorship of that speech but more speech. Are you believers in the counter-speech doctrine? n90 Are there any instances in which counterspeech did not provide the adequate remedy, specifically on college campuses?
FRENCH: We’re definitely believers in the counterspeech doctrine. The circumstances in which more speech is not effective are covered already in First Amendment doctrine. For example, more speech often is not effective to stop the incitement of a riot. When bullets are being fired, words sometimes tend to fail to calm the situation.
QUESTION: SO a Brandenburg n91 or a fighting words n92 situation would sweep up the areas where you believe counterspeech might not be the proper approach?
FRENCH: Yes. I would even go beyond the counterspeech doctrine. I believe we should protect speech even when counterspeech is not readily available. We need to take a larger view of it. It’s not that in each individual instance there needs to be a chance to respond, which is one thing I’ve heard people say to justify speech restrictions.
You don’t necessarily always have to have an immediate opportunity to respond, especially if you’re talking about creating a culture that says, within the context of this campus environment, there are going to be opportunities to engage in a full range of expression. I have seen the counterspeech doctrine perversely used to limit speech because someone didn’t have an immediate response ready.
Sometimes the nature of the gathering doesn’t permit the opposing point of view. For example, we have had cases where people wanted to create a pro-life organization. Clearly, such an organization doesn’t espouse a pro-choice point of view. The remedy is to start a pro-choice organization.
It sounds funny but we’ve had case after case where people have said there shouldn’t be Christian groups made up solely of Christian members. Why not? People will ask about getting dissenting points of view into the group? We have to explain that a fundamental free association value is that a group should be able to define its message. Those who don’t like that message don’t necessarily have an avenue for dissenting in that particular group, but they can form another one.
QUESTION: Can you tell us a little bit about the Academic Bill of Rights movement? What is it? What is FIRE’s position on it?
LUKIANOFF: We don’t have a position on it.
FRENCH: We have not taken any position. The fact is we believe the First Amendment is a pretty strong academic bill of rights. If public universities obey the First Amendment, students would have all the rights that they need.
LUKIANOFF: I did say, in my Senate testimony, that one concern of the Academic Bill of Rights movement is "indoctrination." In fact, different groups all over the political spectrum have been worried about preventing indoctrination. Certainly, as a moral matter, you can object to a professor trying not to teach the students but to indoctrinate them. As a legal matter, however, if we tried to ban indoctrination, that would be disastrous because everybody is going to believe that everybody else is trying to indoctrinate them.
FRENCH: Again, if you have a public university that is systematically excluding certain points of view, that’s a First Amendment issue. In other words, putting the force of the state behind propagating one point of view and excluding another is a problem. That’s fundamental constitutional doctrine.
Of course, the word indoctrination is a loaded term. Many people who want to prohibit indoctrination would be appalled at the notion that anyone could go into a Christian school and say, "Stop indoctrinating." The Christian school is designed to teach a particular point of view and that’s its constitutional freedom to do so.
What we’ve always said about private universities is that they can have an explicit point of view — unlike the public university — just be honest about it. If you’re going to be a conservative Christian institution, be upfront about that so that no one is laying down $ 25,000 in tuition expecting to receive a broad-based, intellectual education and then be surprised to learn that every last one of their professors is a Christian. If you run a school that purports to be dedicated to "progressive ideology," don’t say, "We welcome students from every last viewpoint on the face of the earth and you’re going to hear of [sic] free exchange of ideas." We’ll just hand them a policy from their promotional brochure that sets out what they are and ask them to compare what they say with what they’re doing.
LUKIANOFF: Harvard Business School had a very interesting situation. It was in the middle of the business school’s career week and all the computers went on the fritz. A student published a cartoon that had a bunch of pop-up windows with one hidden in the corner that said "incompetent morons." The editor was called into the Harvard Business School dean’s office and chastised or told that he would be held personally responsible for future things that are insulting.
I enjoyed contributing to the letter that we sent to the school because if school officials are saying that criticizing people in power is outside of the scope of protected speech, then nothing is inside of it. If that’s the case, speech at the very core of the First Amendment is removed. We have to make this argument very often. A large number of FIRE’s cases involve people in our hyperpolarized society people who want to suppress speech on some part of the spectrum. Honestly, an awful lot of our cases are about simply abuses of power. For example, there will be a dean who is mad about being insulted or other administrators who can’t believe that somebody said a negative comment about them or one of their policies, and they want to put a stop to it.
Sometimes I think they start there and then work backwards and say they’re restricting speech in the name of civility or sensitivity — hoping to dupe a bunch of students into supporting them blindly anytime they mention civility or sensitivity.
QUESTION: TO wrap up this area, is it fair to say that, unless it’s a particularly egregious situation on a campus, FIRE pretty much avoids getting into curricular issues?
LUKIANOFF: Absolutely. We avoid curricular issues.
FRENCH: Yes. We avoid curricular issues because formulating a curriculum is also an exercise in academic freedom. It would be wrong for us to say that we support academic freedom and then to start micro-analyzing curriculum decisions.
LUKIANOFF: We’re perfectly willing to call them on the fact that they often explain law and rights incorrectly, but we do that in the form of criticism.
C. The Proclivity to Censor: Why Universities Limit Free Expression
Rodney Smolla, Dean of the University of Richmond’s T.C. Williams School of Law, wrote in 1992 that "censorship is a social instinct." n93 Similarly, University of Colorado Professor Robert Trager and a colleague observe:
Attempts to control what others write and say is a universal phenomenon. Across history as well as across cultures, there exist those individuals or institutions that believe there is an inherent danger in too much expression because it tends to undermine legal or religious authority, morality, civility, or even personal preference. n94
Today, the impulse to censor seems extremely prevalent at universities and colleges throughout the United States. The term "political correctness" often is bandied about by conservatives to attack such efforts by left-leaning administrators. In this section, French and Lukianoff discuss the impulse to censor, as well as the tortured concept of political correctness and its multiple meanings.
QUESTION: IS censorship of conservative guest speakers on college campuses a problem today? We read a lot about it in the press. n95 Do you find it to be a problem?
LUKIANOFF: We’ve had some cases to that extent.
FRENCH: What we see less frequently today than we used to are instances of someone being shouted down and being prohibited from speaking by some type of counter-protest that drowns out the microphone or bars entry to the auditorium. I think that’s less common. It still happens on the occasion, but it’s much less common.
The really interesting emerging problem is what is happening to mandatory student fees. Mandatory student fees are imposed on all students and then are usually allocated by a student governing association that decides whether a group that wants to bring in a particular speaker will get funding to do so. Will it pay their honorarium or not? We just got an inquiry recently where one school wanted to use one-third of its entire student-fees budget to bring in Fahrenheit 9/11 director Michael Moore. n96
The question posed was simply, "Is it viewpoint discrimination to spend one-third of the entire student fee budget to bring in Michael Moore?" My suggestion is to put the student government to the test and to sponsor a $ 40,000 conservative speaker next year. In other words, they should ask themselves, "Will we fund that person to the extent that we would fund Michael Moore?" If the answer is, "Oh, that’s far too much money to spend on the conservative," then it’s a viewpoint discrimination issue.
The issue of the student fees allocation is one area where much analysis needs to be done. We get many anecdotal reports from student groups saying, "I can’t do this or I can’t do that." A rigorous analysis is needed in this area.
LUKIANOFF: That’s also a little tricky because it raises the issue of institutional expression. The student government sometimes has its own budget and is free to bring in its own speaker as long as it works within its own budget. Using one-third of the fees that are supposed to go to all student groups, that’s a little more problematic considering these campuses typically have hundreds of student groups.
At the same time, we don’t want to give the impression that individual groups, the student government itself or even the administration does not have free speech rights of their own. Student governments often pass resolutions condemning various things going on all over the world — something I find a little quaint. If the Macomb Community College Student Government hereby condemns the war in Iraq, it isn’t going to make a difference on global politics.
QUESTION: If a public university has a mandatory student activity fee, what is the ideal method or procedure, in your minds, for handling and distributing funds? Are there particular criteria that should be used in order to implement the system in a viewpoint-neutral fashion as it was defined?
FRENCH: Aside from abolishing the mandatory student fee?
QUESTION: Would that be your first suggestion?
FRENCH: That would be my first suggestion — abolish the mandatory student fee. Barring that, I think it is critically important that a student government implement viewpoint-neutral criteria for the determination of student fee allocations. For example, is one group larger than another group? Well, then it’s a reasonable and viewpoint-neutral determination that they might need more operating funds than a smaller group. Does the group have ten or twenty times the meetings or activities that another group has? What they have to do is eliminate as much as possible to subjective element — "Do I like what they’re doing?"
We’re actually involved in some studies of student fee allocations and we’re beginning to see that the actual allocation when the criteria are less objective tends to skew heavily in one direction and away from the other. In these situations, the difference in treatment can’t be justified by criteria such as the level of participation, activity level or other things like that. So the mandatory student fee structure is incredibly problematic in that it has at its heart forced speech.
QUESTION: Are there any examples of mandatory student activity fee distribution policies that you’ve seen that, in your opinion, are okay?
FRENCH: I have never seen one that I liked because they are all so very subjective. In fact, they often don’t spell out criteria at all. They simply say this committee is charged with distributing the mandatory student fee, and they sometimes say it should be done in a viewpoint-neutral fashion. Sometimes they don’t even do that much.
It’s troubling that universities give a bunch of people — often a bunch of students — the control levers on hundreds of thousands of dollars to be dispensed to groups with viewpoints. Here is a point that the Supreme Court made very clear: This is not allocating state money. This is allocating student money. A lot of people get that point mixed up. They look at it as, "Oh, you’re getting the government’s money."
The mandatory student fee is not viewed like that legally. It’s not like a tax. Many people say, "I’m against the war in Iraq, but my tax dollars are going to fund the military." The mandatory student fee is not a tax. It is not something that’s going into the public till for dispensation through the legislative process. The mandatory fee is viewed by the Supreme Court as student money, and if people are going to be caretakers of the students’ money and must dispense it in a viewpoint-neutral fashion as condition for a constitutional process, you’ve got to have some pretty precise criteria in place.
LUKIANOFF: An interesting case that deals with viewpoint discrimination among the distributors of student fees actually took place at Washington University School of Law, a private school, but one that proclaims to honor free speech and free association and distribute funds on a viewpoint-neutral basis.
The student bar association, which was the name of the law school’s equivalent of student government, refused to recognize a pro-life group on campus. They sent back the group’s proposed charter saying, "You want to be pro-life, but you can’t consistently be pro-life if you don’t also oppose the death penalty." The pro-life group was opposed to euthanasia. It was opposed to abortion. It was opposed to the right to die. It was troubling that the student bar association didn’t understand that it didn’t have the right to rewrite the beliefs of another organization.
It was a very successful media campaign primarily because it was against a private university. If we had gone to court, it would have been an uphill battle. Instead, we brought this out publicly. We managed to talk the ACLU of eastern Missouri into signing a letter with us. We succeeded in explaining, however slowly, to the student bar association that it was inappropriate for them not to recognize this group on the basis that they didn’t like the charter of the organization.
QUESTION: Sometimes when the students don’t like a message that’s in print, they steal the newspaper. There seems to be a rash of thefts of free, student-produced publications at colleges and universities. What is FIRE doing to help address that problem?
LUKIANOFF: I talk all the time about newspaper theft. n97 It’s what students are learning from administrators and from policies that ban free speech. They’re learning that speech is more of a nuisance, barely to be tolerated, and that it is noble to suppress and destroy speech they find offensive or disgusting. What’s the result? If you look at the Student Press Law Center’s website, you’ll find more than 60 documented cases of newspaper thefts in the past few years. In some situations, the newspapers were burned. History reminds us about the fate of a society that started burning books. I find few things more chilling than that particular form of grassroots censorship. We’ve even found administrators in some newspaper theft cases that responded to it by saying things as absurd as, "Well, I don’t see how you could steal a free newspaper?"
FRENCH: The thing that’s even more chilling than the grassroots censorship is the administrative wink and nod towards it. It is the exception rather than the rule that such theft is punished as theft. Too often, it’s "wink-wink, nod-nod, we all know that this is a bad paper anyway." We’ve even had reports on occasion of administrative cooperation with newspaper theft.
QUESTION: Can student publications get around the argument that free papers cannot be stolen by including some language on the front page that says, "First copy free"?
FRENCH: There is nothing a publication can put on its paper that will help if an administration isn’t willing to enforce its own regulations against theft or just state law for that matter. We’re talking about something that would be theft or vandalism under state law.
QUESTION: In July 2004, Colorado became just the second state to adopt a statute penalizing the theft of free newspapers. n98 Maryland is the other state. n99 Berkeley, California also responded with an ordinance after then-mayoral candidate Tom Bates stole copies of the Daily Californian that had an editorial supporting his opponent, the incumbent mayor. n100
FRENCH: After he wins the election and gets into office, Bates then says, "Oh well, maybe I was wrong." It just seems like it takes so much before anybody does anything about it. One thing I would like to see at colleges and universities is that when an entire print run is stolen, the administration should pay for a new print run of that edition and distribute it.
LUKIANOFF: That would help.
FRENCH: That’s one very practical measure that would sensitize administrators to make sure that the right thing happens in the first instance.
LUKIANOFF: I have more hope for laws banning newspaper theft for one simple reason: People outside the university community often have a deeper respect for liberty and free speech rights of students than the students themselves and some administrators do. In explaining that the entire print run of a newspaper was burned to repress an idea, a police officer might understand that in a way that some administrators might not. I am pleased that, at least in my few years at FIRE, I have seen a decrease in the number of administrators who are willing to say it’s fine to take the newspapers.
Of course, there still are problems. I remember reading about an administrator who actually said that stealing the newspapers was a form of expression. In other words, the thieves were exercising their freedom of expression by stealing.
FRENCH: It is universally condemned in the wider culture. It sometimes helps just being able to bring it to light — to show that it happened and the administration has sanctioned it. It brings so much condemnation. It is a problem that is going to diminish over time, but probably never go away entirely.
QUESTION: Kermit Hall, the president of Utah State University, remarked in early 2004 that "I think the political correctness revolution is pretty much dead. What’s interesting is we’re seeing the rise of a mostly conservative reaction to something I’m not even sure exists anymore." n101 Is he correct? Does political correctness — whatever that term might mean — exist anymore?
FRENCH: Political correctness in the sense of the ridiculous renaming of things, like saying a "fisherperson’s platter" and similar superficial aspects of political correctness, are passing on. But I think the heart of this totalitarian notion of saying "here are the values that should be adopted with regard to a whole range of issues" is still very much alive and well — and is personified often in a number of these speech codes. The mindset that gave birth to the political correctness movement still occupies positions of power in the modern academy.
LUKIANOFF: It’s interesting that David put it that way because one of the things I’ve noticed is the difference between people on the left and on the right. If you asked me about political correctness in the 1990s, what I meant was referring to someone as Asian-American with a hyphenated "American" and saying "flight attendant" instead of "stewardess."
When conservatives talk about political correctness, they mean something much more serious. They mean censorship on the basis of "unacceptable ideas." That’s one of the reasons why I try to stay away from the term "political correctness" because I feel it’s so loaded. People have such a specific and often contradictory impression of what it means, so it’s not that useful of a phrase anymore.
I always knew that there was a distressing lack of tolerance for free speech on college campuses, but I had no idea just how bad it was before I started this job. FIRE has had an impact over the past five years, but just when I’m starting to think there is light at the end of the tunnel, we get a case like Occidental or UNC.
FRENCH: I agree that the use of the term "political correctness" is often not helpful because you’ll have somebody who believes that they’re not politically correct because they use the term "Black" instead of African-American while, at the same time, enacting a speech code. So the political correctness that most people think of was a symptom of something that was really deeper. Some of the most politically correct people that I’ve met in my life would proudly say that they’re not because they use certain language that might not be particularly fashionable at the moment.
QUESTION: In a 2004 column in U. S. News and World Report, conservative columnist John Leo contends there is a "no-debate" norm on many college campuses. n102 He went on to write that "when sensitivity and nonjudgmental-ism are the dominant virtues, raising arguments can be perilous — you never know which unauthorized campus opinion will turn out to be a sensitivity violation." n103 Is that an accurate description and, if so, what gave rise to that situation?
FRENCH: I think it’s accurate. The reason why you don’t know if something is going to be a violation is that often people condition their speech on the listener’s reaction. I could say one thing to nine people and it wouldn’t phase them. Then, I say the same thing to the tenth person, and that person is uniquely sensitive or upset about that issue. I can find myself in trouble even though it’s the same thing I’ve been saying for some time. So I think he’s right about that.
What’s given rise to this situation is what we discussed earlier: an overwhelming cultural reinforcement of the notion that life has to be so relentlessly affirming, particularly in the educational world. Paradoxically, the best status to have is that of a victim. These sensitivity codes are the perfect combination of the two because everything has to be affirming, and if it’s not, you can immediately attain victim status. It’s the best of both worlds. You’re either affirmed, which is great, or you’re a victim, which is great. That’s what is operating in a lot of these cases.
LUKIANOFF: What is so pernicious at the deepest level is this attitude of "don’t rock the boat, don’t ruffle feathers, don’t offend anybody." The most uncomfortable things to talk about are the things that society most desperately needs to discuss. It’s always the things that nobody wants to bring up, that nobody wants to take head on, that are the most important social issues in the world.
At UC Santa Cruz there’s a provision in the speech code that prohibits demeaning somebody on the basis of political beliefs. The very idea, particularly in California, that anybody would make it through a month without demeaning somebody else’s political beliefs is ridiculous. Think of that very sorry world where no one truly is allowed to utter a discouraging word.
FRENCH: The people who promulgated that policy should attend a FIRE staff luncheon.
D. Taking on Universities: Strategies, Tactics and Arguments
FIRE imposes on itself, as part of its core mission, the obligation "to protect the unprotected and to educate the public and communities of concerned Americans about the threats to these rights on our campuses and about the means to preserve them." n104 Education forms the centerpiece of the organization’s strategic initiatives, which are marshaled by myriad incidents of speech suppression on the nation’s college campuses. While some might view the group as an instigator poised to stir up trouble — indeed, at least one college developed a strategy for dealing with FIRE n105 — the organization views its role as attempting to educate academic administrators, other college constituencies, and the public on the basic freedom of expression.
Much of FIRE’s work is conducted quietly and directly with the administrators at colleges and universities dealing with a speech-related issue or controversy. French and Lukianoff report that quite often a situation can be resolved with a letter from the organization to the appropriate school officials explaining why the campus policy or practice inhibits free speech rights protected by the Constitution. Many times, the group will hear back from the campus leaders saying the problem has been fixed; that response ends the matter. Of course, that’s not always the case.
If the private letter fails, the next step is to educate the public about what’s occurring on campus and, at the same time, apply some public pressure on administrators to come up with a remedy that protects the First Amendment right of their constituents. The preferred tool for achieving this objective is a press release to regional and national news organizations. FIRE is keenly aware that colleges and universities are mindful of how they appear to the public. Negative publicity that portrays the institution in the role of censor clearly is not in the college’s best interest. Moreover, the press release and resultant media attention further serves FIRE’s mission of keeping the public apprised of threats to the First Amendment in higher education. If this tactic does not make campus officials take notice, FIRE may resort to the tactic that will compel the college to act — litigation.
Given the strategies outlined above, it would be incorrect to think of FIRE solely as an organization that sues colleges and universities and then revels in the publicity associated with the lawsuit. In fact, litigation — though an option that has been exercised by the organization — is a last resort. Obviously, it always is in the best interests of all parties to resolve the dispute before engaging in the burdensome approach of litigation, and the group’s strategy is based upon that principle.
In this section, French and Lukianoff discuss FIRE’s three-step approach to resolving speech infringements on campus. They highlight some of the successes and drawbacks associated with the organization’s methods.
QUESTION: Can you give us a couple of examples of current cases involving specific institutions, and also how much of that involvement is litigation as opposed to persuasion?
FRENCH: The University of North Carolina — Chapel Hill has "de-recognized" a Christian fraternity because the organization wanted to be comprised entirely of Christian members where every member is supposed to be evangelistic in the sense of actually trying to convert people to Christ. The University says that it’s discrimination to have a religious organization that uses religious criteria in the selection of members.
This sounds kind of silly, but it is a massive problem in public universities. They are telling religious organizations again and again, as a pre-condition for getting access to facilities or receiving student funding, that they must agree not to discriminate on the basis of religion. How are religious institutions supposed to maintain a distinctly religions voice if they can’t discriminate, which in this instance is another word for making choices on the basis of religion? That’s one case and it is headed for litigation. North Carolina is digging in its heels apparently and is headed for litigation.
Another case we have involves the Catholic University of America implementing a policy that promised its students the right of free speech and dissent, but has refused to recognize the NAACP at the campus, saying that there already is another African-American organization in place.
Greg already mentioned the Occidental case with this unbelievable example of someone being accused of sexual harassment for a radio show. The consequences of extending sexual harassment law that far are obvious. Yet, they fired the student and dissolved the student government all based on the content of this guy’s radio show.
There’s another case that is in litigation right now. It involves a Catholic professor at a community college in Ohio who had stated on his syllabus that he was a Catholic philosopher. He was teaching philosophy there. He informed the students in his courses that his beliefs color the way he teaches. He invited anyone who ever had any questions about that to talk with him.
He received complaints and was demoted. Through discovery, it was determined that his demotion came as a result of the disclaimer on his syllabus. Now, let’s imagine that someone in the African-American studies department says, "I’m an African-American and that has colored my perception of the world and my thoughts in class." What would happen if the university said to him, "Perhaps you would be more comfortable at an historically black college"? Yet, the administration told the philosophy professor that perhaps he would be more comfortable at a sectarian school.
LUKIANOFF: We pointed out in our letter in that case that economics professors who mentioned that they’re Marxists and that’s their take on economics don’t get in trouble. In FIRE’s history, we’ve certainly seen professors get in trouble for not having something that explains their point of view. So it seemed like he took a responsible action to say I’m a philosophy professor, and my views are informed by Catholic theology. In the letter we listed names of numerous philosophers that would have to be excluded if no one who had a religious viewpoint could teach.
FRENCH: The great line in The Wall Street Journal was that St. Thomas Aquinas would not be qualified to teach philosophy at Lakeland Community College.
QUESTION: When you first write to university administrators about a speech code or free speech zone, what are some of the typical points or comments that you make to them? Is it the educational process we’ve been discussing? And what is their typical response?
FRENCH: It’s a combination of a legal education and a moral education. Because we don’t want to rest our argument on legalisms — you must do this because you have to — we want to make the argument that you should do this because it’s the right thing to do. We don’t write letters that are legal treatises. What we try to do is persuade on a legal and moral basis that it is the correct approach to recognize the civil liberties of your students or professors, and the response varies wildly.
LUKIANOFF: Yes. It’s amazing.
FRENCH: We’ve gotten back one-sentence responses that are the polite legal equivalent of saying "go away." We get lengthy responses that outline an articulated position, which are the ones we really like because then we can engage in a dialogue. Then, unfortunately, we get the responses that are just completely misleading and are designed to draw the public away from the real issue or mislead the public. A perfect example of the latter is the most recent UNC response to our letter complaining about its "de-recognition" of the Christian fraternity. They responded with a statement of the law that was completely inaccurate, and any lawyer who has practiced for any length of time in the First Amendment arena would know that it was inaccurate. They misstated their own policy. In other words, they said that there were aspects of the policy that weren’t in there, and their account of the facts was completely at odds with the account remembered by the Christian fraternity.
It’s sort of the perfect storm of inaccurate responses. Yet, we had people not knowing the law or the facts say, "Oh, what a reasonable response." Those responses are the most challenging because we want to rebut them without engaging in name-calling. We try very carefully to rebut them. And, of course, there’s also the no response where the college or university will simply ignore us.
LUKIANOFF: Let’s not forget about the surprised response. We’ll get a letter saying, "I didn’t realize this was happening. I very much respect the First Amendment. We will take care of this." And they try to resolve the case as quickly as possible.
QUESTION: SO there are some positive responses?
FRENCH: The record of eventual outcomes is outstanding. Most of those are resolved without resorting to press releases or litigation.
QUESTION: What percentage of the cases, would you say, is decided without resorting to litigation?
LUKIANOFF: The cases that go to litigation are definitely well in the minority. Probably the biggest mistake that administrators make when they receive our letters is overlooking a sentence, which we mean very sincerely, that if there is any misunderstanding, if our understanding of the facts is in anyway wrong, please correct us. That’s a major part of the letter. We explain that these are the facts as we understand them. If we are wrong, please write us. That’s the administrator’s opportunity, especially before it’s a public debate, to deal with the issue. We’re very careful in gathering our evidence, but we have had cases in which university officials have written back with facts that the student in question had not reported to us, and we engage in a dialogue with the people there. Sometimes the case is resolved at that point.
QUESTION: IS a private letter to the administration the first step?
QUESTION: Before the press release?
QUESTION: DO you proceed to the press release only if the private letter doesn’t work?
FRENCH: It’s a pretty simple process. We write a letter hoping to engage in a substantial and substantive private dialogue that at least looks like it’s headed for a resolution. Now, if we get a sense that the private dialogue is just a measure to postpone a press release — someone is not talking to us in good faith — then we’ll go to step two, which would be a press release. We want to engage in the dialogue. If that does not work, then we will move to a press release because we have found that, particularly in some of these egregious cases, universities can’t justify in public the actions they take in private.
QUESTION: IS this the court of public opinion at work?
FRENCH: Exactly right, and that is a much better way to effect change. Finally, only if the court of public opinion and private efforts fail will we then refer someone to our legal network, if there’s a legal claim. There’s not always a legal claim especially at a private university. If there is a legal claim, and the university is not budging, not listening to reason, then we have to go with court action. After all, there’s no law that says university officials have to answer our letter but they do have to answer a legal complaint.
QUESTION: Have you been generally satisfied with the media’s response to your press releases or your other efforts to get the word out?
FRENCH: AS a general matter, I would say yes. There are frustrations in individual cases. The best example, in just my first seven weeks here, is this Occidental case, which is an unbelievably extreme example of a totalitarian administration. Unfortunately, there has been very little independent media attention paid to the case. Then we’ll have other cases where I’m surprised at how overwhelming the media response is. We recognize that reporters have their own minds and they cover what they want to cover.
LUKIANOFF: It is really funny sometimes because the case I’m absolutely the most rabid about will get very minimal attention while a case that I thought was important, but not outrageous, will be all over the world in a minute.
QUESTION: When you decide to get involved with a case, is it both of your decisions to do it? Do you have to go to a larger board?
FRENCH: We don’t take individual case decisions to the board. The board has set the mission of the organization and it is up to the staff to implement that mission. It’s a very collaborative process. Ninety-nine percent of the cases are easy to decide whether or not we’re going to take them.
On the one percent margin, one of the great virtues of FIRE is that because we cross the political spectrum, we don’t have a lot of groupthink going on here, so we will vent cases in the office. What do we think about this? What are some reasonable objections to it? It’s a very collaborative process on the minority of cases where there’s a real question. The mission is clear. We defend civil liberties on campus for college students and professors.
E. Free Expression Problems on Campus: From Speech Codes to Bake Sales
The researchers at FIRE estimate that 90 percent of colleges and universities in this country have some form of a speech code. n106 That’s a rather staggering figure given the federal courts’ proclivity to strike down such policies just over a decade ago. n107 At the core, these speech codes may well be motivated as "an effort at eradicating discrimination, but they end up destroying the marketplace of ideas in higher education." n108 The goal of campus speech codes purportedly is to promote tolerance of people of diverse backgrounds, but according to FIRE’s Thor Halvorssen, they inevitably "seek to privilege one predominantly leftist point of view" n109 and thus breed intolerance to opposing viewpoints.
Despite their speech-restrictive and legally problematic nature, speech codes appear to remain in favored status among college and university administrators and governing boards. While these leaders may view the policies as a way to stabilize their campus environs, they now face a battle by organizations like FIRE that have chosen to respond to what USA Today called — in a March 2004 editorial — "that bit of political correctness run amok." n110
As noted above, n111 FIRE took on the administration at Shippensburg University in Pennsylvania after school officials allegedly ordered students to remove posters that depicted Osama bin Laden in the crosshairs of a rifle after the September 11 attacks. The administrators were concerned that "the signs might offend other dorm residents." n112
U.S. District Judge John E. Jones III sympathized with the challenges colleges and universities face. n113 He further recognized that the speech code "was enacted with the noble purpose of making that institution a better place to live and learn." n114 In the end, however, Judge Jones concluded that the speech code "could certainly be used to truncate debate and free expression by students." n115 Moreover, the Shippensburg code suffered from the same defect that its antecedents did, namely unconstitutional overbreadth. n116
Students on the nation’s college and university campuses today may need the protection of the courts when they speak their minds — especially if their speech tends to reflect a conservative viewpoint. Former UCLA student, Ben Shapiro, has written about his experiences on that campus in a book n117 that claims conservative students "were generally shrugged off as not too bright." n118 Meanwhile, faculty members "routinely spouted liberal propaganda and rarely had their biases challenged." n119 The book bounded up Amazon.com’s bestseller’s list, suggesting, for some, "that the stir he is creating is indeed a sign that something is amiss in U.S. academe." n120
FIRE’s Lukianoff finds Shapiro’s lament that conservative views are regularly censored increasingly to be the case on campuses. He believes that part of the reason is that colleges are grounded in "liberal values and are uncomfortable with students who don’t reflect those." n121 Some administrators, on the other hand, insist that the political correctness movement that permeated higher education in the late eighties and early nineties is over. Kermit Hall, president of Utah State University, says campuses are "seeing a rise of a mostly conservative reaction to something [he’s] not even sure exists anymore." n122
Others are quite confident that the remnants of the PC movement continue to thrive, and it’s not all sugar and spice on college campuses. In response to what some perceived as a liberal leaning, students at several campuses decided to hold "bake sales with discount prices for minority students as satirical protests of affirmative-action policies." n123 The "affirmative action bake sale" held at Columbia University had organizers selling "doughnuts and cookies at higher prices to white and Jewish students and at lower prices to black, Hispanic and female students" and drew the ire of administrators and black student leaders. n124
In similar fashion, the student leader of the College Republicans at the University of Colorado attempted to run a bake sale in which his "plan was to price the cookies and cupcakes at different prices depending on the buyer’s race." n125 The purpose of differential pricing was to "demonstrate how affirmative-action programs in hiring, admissions and contracting draw harmful correlations between a person’s race and his or her ability to achieve." n126 The sale caused a showdown with university administrators who threatened to stop the event, contending it violated federal and state laws as well as university policy, but compromised after the College Republicans pledged to sue. n127 The result was baked goods with "a single price for all students along with a parody price list of ‘suggested donations.’" n128
FIRE has intervened in a number of instances where school officials have sought to thwart such bake sales. n129 The group successfully challenged the administrators at the University of Colorado, the University of California at Irvine, and the College of William and Mary. n130 FIRE’s tactics include "letter writing and public embarrassment" n131 — often enough to scare off administrators who are acutely aware of the image associated with the suppression of speech. Lukianoff suggests that students are trained from the start that "they have a right not to be offended and if they are offended they should run and seek an administrator." n132
School officials fail to recognize that there is no right to be free from offensive speech. In fact, the long established legal guideline in this area was cogently summarized by the late Justice William J. Brennan, Jr. when he wrote: "If 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." n133 FIRE stands ready to remind school officials of their obligations under the First Amendment.
In this section, French and Lukianoff discuss the state of free speech on America’s campuses and provide details about where some of the trouble spots are, along with how FIRE responds to such infringements on speech.
QUESTION: Let’s talk about so-called speech codes for a while.
LUKIANOFF: That’s another area in which FIRE has been extraordinarily successful — we call speech codes what they actually are. We’ve had people argue, "No, that’s not a speech code. It’s a harassment code." Then we offer our definition of a speech code — any rule or regulation that substantially interferes with or punishes a large amount of what would be protected speech in society at large.
FRENCH: Talking about this use of language, we had a case against Shippensburg University involving a speech code. n134 The university called it a racism and cultural diversity policy statement. In that policy, it said that racism was prohibited.
Now how you can prohibit racism is beyond me, but they denned racism as, basically, actions that denigrate, intimidate or subordinate on the basis of race, color, ethnicity or creed. But a creed is a system of beliefs, so under this policy what was prohibited was intimidating someone out of his or her system of beliefs. That was racism, so you have to read these policies carefully.
For the poor students who are accused of violating something like this, they’re immediately pariahs. They’re accused of violating a racism and cultural diversity policy statement; what a stigma that is. And most students don’t actually read the policies, so they don’t have the legal knowledge to understand what is going on.
QUESTION: SO it sounds as if nobody calls them speech codes anymore; they seem to hide under the cover of different names. What are some of the types of names that you would see speech codes hiding under today?
FRENCH: Discriminatory harassment policy, diversity policy, email policy.
LUKIANOFF: Acceptable use of email policy.
FRENCH: Facilities use policy, student recognition policy, student organization recognition policy — those are just some off the top of my head. As soon as you see something like a diversity policy . . .
LUKIANOFF: Read it . . .
FRENCH: With an eye of skepticism.
QUESTION: Why, in a nutshell, are speech codes a negative aspect of higher education?
LUKIANOFF: (laughing) How big of a nutshell?
FRENCH: If you think of education as a process of discovering truth through a free exchange of ideas, then I think you can see that speech codes have a profoundly negative influence on the free exchange of ideas. If, on the other hand, you believe that education is the process of imparting higher knowledge to those with lesser knowledge, more of a religious education than a traditional, secular liberal arts education, then for those people speech codes probably are a good thing. But in our country we have long held, with substantial justification, that the free exchange of ideas is the best way to discover truths — not just scientific truths, but also advances in civil rights and in numerous other ways. If you look at the spectrum of societies in the world, from most free to least free, I think you’ll find that the more free a society is, the more scientific advances you see, the more minority rights are respected and the more economic advancement you see. So by almost every measurable scale of human progress, free societies are further advanced down the line, while the least free societies are the most regressive. Why, then, a university administrator would rationally believe that the way to make our society better is to make it less free is beyond me.
QUESTION: Are there any positive reasons to have a speech code on a university campus?
LUKIANOFF: If a school’s dominant goal is peace and quiet on a college campus, then certainly that is a positive aspect for administrators. This is how you end up with these restrictive speech codes and speech zones where peace and quiet are values that are emphasized over debate and candor. If that’s what you want — if you don’t want college to be a uniquely intellectual experience — then great. But I think that’s really cheating students of that opportunity.
John Stuart Mill made the argument in the nineteenth century, very effectively, that even if what you’re saying is true, your ideas become more refined in combat with error. n135 And if your ideas are never challenged, then they’re not living things and you don’t understand why you hold these beliefs. You just believe they are right but you’re not really sure why.
In my experience, when I engage college students in debate on why they believe some of their beliefs, even when they agree with my own, they can’t answer very effectively because they haven’t been challenged. That’s not healthy for either intellectual development or policy development. It can, in fact, be damaging to people’s ability to evaluate things critically if they haven’t had that experience in a free marketplace of ideas. If this isn’t improved, particularly on college campuses, the polarization that we see in our society today is only going to become worse.
FRENCH: Just to give you one anecdote from personal experience, when I was a student at Harvard, I would speak up in class and advance what were some pretty conventional, non-ground-breaking conservative points of view. On more than one occasion I had a student come up to me who graduated from Princeton, Berkeley or some elite institution of higher education and say, "You know, I’ve never heard that point of view before." That used to floor me. At first, I couldn’t really believe it, but the more time I spent at law school, the more I could believe it. When you have an atmosphere that does not welcome dissent and debate, people will choose to be quiet, even when they’re not being formally censored. That’s why we’re trying to do so much more than just roll back policies; we want to change a culture.
FRENCH: YOU can have a policy that says, "let speech be free," but if the culture of the university is "shut up if you disagree with our point of view," then speech won’t be free.
QUESTION: After several court opinions striking down speech codes more than a decade ago, are you surprised that these policies have yet to disappear?
FRENCH: NO. The mindset that created the policies did not change when the policies were struck down, so the administrators still wanted to accomplish the same goals and they sought other avenues for accomplishing them. What we must do now is change the mindset.
FRENCH: That’s why anything that is oriented towards a purely legal solution to the problem ultimately will fail. Take, for example, campaign finance reform. With much fanfare, we passed a law that dramatically limited soft money, but I think it’s pretty self-evident that interest-group issue advertising is every bit as prevalent in this election cycle as it was in 2000.
There are legal thinkers out there who believe free speech is oppressive, which compares to George Orwell’s book 1984, in which one of the slogans was "freedom is slavery." n136 We literally had a coherent body of legal arguments that said free speech was oppressive, and if you genuinely believe that, then you’re going to try to find a way to implement a policy that accomplishes your goals even if a court strikes down the first version of your policy. So we have to get people to think differently about this.
QUESTION: What are the typical flaws, from a legal perspective, with speech codes?
FRENCH: Vagueness and overbreadth are the two most common. Sometimes you’ll also see viewpoint discrimination. Sometimes it’s tragic and sometimes it’s hysterical.
QUESTION: What are some of the vague words that are used?
FRENCH: There are so many — annoy, demean, oppress, stereotype.
FRENCH: Another phrase I’ve run across is "preventing acts of intolerance."
LUKIANOFF: Psychological harm of person or pets is one I like to focus on. Now I’m not advocating psychological harm of pets, but it’s hard to tell whether your pet has been psychologically harmed.
QUESTION: Can a speech code ever be crafted that would pass constitutional muster?
FRENCH: A speech code that passes constitutional muster would be the First Amendment.
LUKIANOFF: Something that really bothers me are people I went to law school with who hold this really negative opinion of the First Amendment because it doesn’t allow for hate speech codes. As if that’s the only thing the First Amendment has ever done for society.
Universities sometimes will take very strong and self-righteous stands that they protect students in a greater way than is provided for by the law, but the First Amendment makes some very intelligent distinctions regarding things like viewpoint discrimination, content neutrality and other well thought-out principles. There had been a habit among college administrators and, in some places, general counsel, of treating the First Amendment as if it was some sort of a foolish default rule that could never possibly apply in an environment like a college. Time after time, when I talk to a general counsel or to an administrator, they will say, "Well, what about someone chasing someone down the street and yelling obscenities at them?" I’ll respond that that always has been punishable as threats of intimidation. But they keep on giving me examples of things like incitement that already are unprotected categories of speech. I started to realize, after many debates on campuses, that in a lot of cases administrators have come to believe in speech codes on the basis of examples that don’t really have anything to do with the speech codes they’ve passed. FIRE’s been good at slowly demonstrating that the examples they use are not what’s happening in the real world.
When I debated Richard Delgado, I didn’t stay in the realm of abstraction; I was able to list example after example and I put it straight to the crowd: Do you think that a mildly critical online cartoon in the Harvard Business School should have been punished? Do you think that a poster that had the name of the book Why the Left Hates America n137 printed on it was actually hate speech because it used the word "hate"? Do you think that it was appropriate behavior for a professor at Citrus College to give an assignment that required her students to write anti-war letters, which she then posted?
That’s one of the things that FIRE does well — we research and document our cases and then we present them. We of course advocate for what we consider to be the right course of behavior, but it is impossible now to deny that a lot of cases are horrible. Simply ridiculous things are going on on college campuses that people in the mainstream political spectrum, whether they’re liberal or conservative, all find absurd. The only places that don’t find them absurd seem to be college campuses.
FRENCH: Reporters often ask about hate speech. One of my first questions to them is, "What is hate speech?" At that point, the whole conversation breaks down because nobody knows what hate speech is but everybody knows it’s got to be prohibited.
So one of the problems with using a phrase like hate speech is that when you move from the theoretical to the real world, and you look at the examples people throw at you most commonly, they’re in categories of unprotected speech, such as obscenity or incitement. Another thing that I’ll ask is, "What kind of code would you like to have governing a student organization? What’s wrong with pre-existing criminal and civil laws? What’s wrong with saying that students must abide by state laws? Why do you have to add these extra layers?"
It goes back to this sort of neo-Victorianism that Greg was talking about. The school is not just an institution of higher education; it’s also daddy and mommy, creating citizens who are going to have the correct views about a whole host of issues. Just like mom and dad put more rules on you than, say, the state of Virginia does, so will the university, except its rules deal with intellectual morality and controlling the life of the mind. That is unbelievably dangerous.
LUKIANOFF: That brings up another issue on which I challenge administrations all of the time. If you actually have decided what the correct views are to hold on any topic are, well congratulations — you know everything. In the course of a speech that I gave at Bucknell, students were saying to their administrators, "Don’t you think it’s possible that you could learn something from us about your ideas? Don’t you think it’s ever possible that administrators or faculty members could learn from students?"
I was pleased and relieved to hear that because people often think that First Amendment advocates are very pushy and uncompromising bullies. But they forget that at the core of free speech is humility — the idea that we don’t know where truth is going to come from and that we don’t know from where a new idea might evolve. Lenny Bruce n138 is an example. Who knew that a comedian swearing his head off could be so brilliant and could open up people’s minds about so many things, even if they didn’t like his humor? Bruce could teach the entire country a lesson or two about free speech and tolerance.
FRENCH: One thing that I often say, coming from a conservative Christian background, is, "What if Jesus faced a Roman speech code?" He ultimately did, in a way, but the point is that it is nearly impossible to name one groundbreaking idea in any culture that didn’t face intense opposition from the entrenched interests of the day. Although Greg and I are on the left and right, we are on the same wavelength on these issues.
An interesting thing that people on campus who turn up their noses at individuals who are orthodox or fundamentalist in their religion say is, "Look at those people. They think they know everything, and they’re so judgmental." In the mean time, of course, the students who are saying that are promulgating speech codes.
QUESTION: Would you characterize your work with speech codes as being successful? Do you have more to accomplish?
LUKIANOFF: We have a great deal more to accomplish. Everybody at FIRE is a true believer. You know we take free speech very seriously and feel like we’re doing something important. Partially from that mentality comes a tendency to take on too much at once. The very idea that an effort as Herculean as speechcodes.org n139 would be a side project that we would try to get done during the summer was amazing.
David’s absolutely right — we are going to be more proactive in the future. But at the same time, if we can keep on doing what we’re doing but do it better, I think that would be excellent, such as drawing attention to things like speechcodes.org and completing the free speech guide. We hope to publicize more of our resources so that students know what’s out there and they can see what kind of codes their university has.
We have started to get a trickle of universities writing to us, asking why they are designated as a red light school and telling us that they don’t want to be a red light. We then explain the reasons. We hope that happens more often.
QUESTION: We did briefly mention free-speech zones before and talked about some of the more ridiculous or extreme examples. Generally, on the topic of free-speech zones, which appear to have hit the radar screen relatively recently in the media, are free-speech zones a new phenomenon compared to speech codes or are they something that have been around for a while?
LUKIANOFF: We’ve looked into that and, frankly, it’s hard to tell. FIRE’s only been around since 1999. Very early in our existence we started fighting against speech codes on campus and free speech zones on campus. How long did they exist before that? It’s hard to tell. At West Virginia University, apparently the code had been there for decades. It just hadn’t been used and then they started enforcing it against the group Students for Economic Justice who were protesting Disney being on campus.
Free-speech zones seem to be increasing; that certainly would be in keeping with the general observations that speech codes in general are increasing. And it’s certainly in line with my experience with administrators that there is this increasingly bureaucratic approach to just regulate speech to death. Whether they’re on the rise or whether we’re only discovering things that have been there for a long time, that’s really hard to tell.
FRENCH: My own idea of this is that, in addition to the usual hostility to free speech that often exists, free-speech zones follow the increasing bureaucratization of higher education in the same way that night follows day. Campuses now have to have a facilities-use policy. They have to have a grounds-use policy. A lot of this is driven by a desire to manage risk. They think, "If we’re going to allow students to use our facilities, it’s only under these certain circumstances. It’s only with this kind of advance notice. It’s only with this and this." So when they begin to get into that mode of hyper-regulation, new ways to suppress speech just appear.
The process of recognizing student organizations is replete with examples. If students want to use some empty classrooms to hold a meeting for whatever purpose, they have to begin to jump through these increasingly elaborate bureaucratic hoops that now include viewpoint components like no discrimination on certain grounds. This is all part of the bureaucratization of higher education. When we bring this to the attention of administrators, letting them know that their anti-discrimination code in connection with the facilities-use policy can actually inhibit free speech, sometimes they’re dumbfounded.
QUESTION: What are the common problems with free speech zones? If they’re content neutral in scope and enforcement, can’t they be permissible in some cases?
LUKJANOFF: I’m very concerned about time, place and manner regulations. Every era has its unique tools of censorship, but there are some tools that repeat time and time again. National security, for instance, has been used in a lot of cases as a rationale for censorship, but also calls for propriety and civility comprise a theme throughout American history.
The time, place and manner rationale is more recent, and the Supreme Court has left the door to time, place and manner regulations a little too wide open. They are now being used for ridiculous results, such as requiring people protesting against President Bush to be a mile away. The same thing occurred at the Democratic National Convention. All of this demonstrates something that any student of the history of civil liberties could have already told you — if you create an exception, people are going to jump on it. We really love free speech, but when people in power have the chance to limit it or get it out of their face, they’ll take it.
To answer the question specifically, there are free speech zones that we don’t object to. For instance, the University of Texas at Austin changed its free speech zone policy to one that only applied to the use of amplification equipment. That was reasonable enough that we wouldn’t object to it. Nonetheless, we think that there’s something strange and unfortunate about having free speech zone policies at all of these universities, even if they make those free speech zones huge. Now, will we object to them if they have acres and acres of free speech zone? Probably not. There is something worrisome, though, when free speech is lumped into a number of other activities that used to be considered free wheeling and now are treated as something that should be hidden, feared or tightly regulated.
FRENCH: It’s viewed as a risk that should be managed as opposed to an activity that should be encouraged. To me, that’s the fundamental problem with the free speech zone. It’s an attitude that free speech on campus is a risk-management issue, and that demeans free speech. It is incredibly pernicious because it’s not necessarily an ideological protest or an ideological objection to speech. It’s something even worse. It’s a bureaucratic objection to speech. It’s a convenience objection to speech and those can be incredibly hard to overcome.
I know that the OCR letter doesn’t specifically address free speech zones, but I like the phrase in there that says "ability to receive an education." If a campus is being used in a protest to such an extent that it interferes with the ability to receive an education, that’s one thing. But to say, "Well, we want to make sure that we can keep tabs on what’s going on," that’s another thing entirely. Maybe it goes back a little to the intent behind the amplification regulations. If the only goal of the university is to stop amplification outside of classes and to stop disruption, that’s okay. If, however, they’re looking to silence debate or limit speech to some area of the campus, it’s a different story.
LUKIANOFF: That point is actually covered in the case law. I have had to just hammer the point, in the free speech zone cases that I’ve fought, that the rationale for the censorship — the limitation on free speech — has to be at least related to the restriction on free speech. We encounter situations where, in order to prevent disruptions, there’s a campus-wide policy that says protests can occur only in a small area. One of the funniest I found was at Western Illinois University where using the disruption-of-class rationale, the policy stated that people could only use this small area of campus between the hours of 9 a.m. to 4 p.m. So they’ve created this wonderful situation where, in order to prevent disruption of the administration and classes, students can only use the free speech zone during times when classes are going on.
IV. ANALYSIS & CONCLUSION
David French, Greg Lukianoff and FIRE are fighting far more than just legal battles challenging specific policies affecting the speech rights of students at both public and private universities. As their comments make clear, they are combating a much larger cultural problem. In particular, they are challenging an education culture, as French aptly put it, "that says, from day one, that the worst thing that ever can happen to you is to have your feelings hurt." n140 It is, he added, "a culture with speech informants on campuses." n141 For French this development represents a "frightening culture." n142
Changing such a culture will not be an easy task, given that students, at an early age, often learn that civility trumps civil liberties — at least in a school setting. Even more insidious, the notion that it is somehow righteous to restrict First Amendment rights, if it spares a particular individual or group from hurtful discourse, is ratified by administrators when those same students reach adulthood at colleges and universities.
FIRE’s French and Lukianoff decry the willingness of college and university officials to close off speech when it threatens to disenfranchise another person, opting instead for the more systematic approach outlined by the Office of Civil Rights of the U.S. Department of Education. As French noted, "The question is: Is someone being denied the ability to get an education? Is the speech so severe and pervasive that someone literally cannot receive an education?" n143 That is the standard outlined by the federal government, but it is too often ignored by administrators who believe that their mission is to create a conflict-free environment for all students.
While a university’s motives in such an endeavor arguably might be noble, they also are unrealistic, especially in light of the broad diversity of viewpoints that circulate on a college campus. Robust debate about issues is bound to spark heated moments, arousing anger in some camps, but as French observed, "there’s nothing about being angry or having your feelings hurt that prevents you from getting an education." n144 He further suggests that such challenges, indeed, are part of the educational process.
From FIRE’s perspective, universities are critical players in the inculcation of speech values because schools of education provide the training ground for elementary and high school teachers. They are in the position to have a powerful trickle-down effect if students come away with the idea that they "deal with offensive speech by shutting up the offender." n145 Perhaps a product of political correctness — a movement that French and Lukianoff agree still exists — the result of this effect is a "frightening culture teaching people that if they hear offensive speech, then they must report it to somebody." n146
Equally disconcerting to FIRE is the desire on the part of colleges and universities to codify their unique brand of tolerance — that is, harnessing the marketplace of ideas to the point that unpopular viewpoints and vituperative language are no longer welcome. Speech codes remain a way of campus life. FIRE’s own estimate is that 90 percent of the nation’s colleges and universities maintain some form of speech policy, n147 but as Lukianoff points out, the organization has been "extraordinarily successful" in waging a battle against these codes. n148
The common flaw in speech codes is that they typically are vague and overbroad and sometimes discriminate on the basis of viewpoint. n149 As French suggested, the only "speech code that passes constitutional muster would be the First Amendment." n150
One of the first hurdles for FIRE is making the college or university understand that their policies, indeed, are forms of speech codes, although they may masquerade as "harassment" codes or "civility" proclamations. FIRE has defined a speech code as "any rule or regulation that substantially interferes with or punishes a large amount of what would be protected speech in society at large." n151 Once officials get past the nomenclature, they may comprehend that the policy strikes at the core of constitutionally protected expression. That doesn’t always occur, and sometimes a stronger tactic — most notably litigation — is necessary.
One recent speech code success story for FIRE involved a lawsuit against Shippensburg University in Pennsylvania. French was lead counsel in the case, which involved a convoluted code designed to root out racism on the campus. A federal judge struck down the policy, forcing the university to abandon the practice of punishing students whose speech could be deemed an affront based upon race, color, ethnicity or creed. n152
While cases like the one in Shippensburg might contribute to FIRE’s reputation as a group that files lawsuits, in reality, litigation is a last resort for the organization. FIRE has a finely tuned, systematic approach to dealing with institutions of higher education that begins with a simple letter. The opening letter from FIRE accomplishes two objectives: It informs the institution that a violation of free speech has occurred — what French describes as a "combination of a legal education and a moral education" n153 — and it offers the opportunity for the school’s officials to correct the record if FIRE has misinterpreted the situation.
In most cases, a letter from FIRE is enough to resolve the issue. If the letter does not end the conflict, then the next step is to take the issue into the court of public opinion, with a news release designed to attract media attention to the problem. The press release is a useful tool to force a dialogue with the offending campus because, "particularly in some of these egregious cases, universities can’t justify in public the actions they take in private." n154
Only if the initial one-two punch — the letter and news release — fails does FIRE refer the case to someone in its legal network, and then only if there is a viable legal claim. Consequently, only a small amount of the organization’s work actually involves litigation.
FIRE views its mission, in part, as an educational function. Informing colleges and universities, as well as the general public, about constitutional infractions occurring on the nation’s campuses is central to its purpose. The work of the group’s leaders David French and Greg Lukianoff is guided by that principle. But there is more to it. With its resources, FIRE also is able to carry out the other part of its mission: "to protect the unprotected." n155 College students whose free speech rights are trampled by the hierarchy of higher education have an advocate in this Philadelphia-based group that was formed to do battle with "America’s increasingly repressive and partisan colleges and universities." n156
But for free speech advocates like French and Lukianoff, the battleground of college and university campuses is a critical venue for carrying out their work because these locations "are the intellectual centers of our culture." n157 French described the sphere of influence of universities this way: "They set the cultural and political tone for the rest of the nation in many very meaningful ways." n158 In short, the stakes are high, which helps to explain why FIRE stands ready to take on the cause of free speech en the nation’s campuses. As this Article makes clear, there is no shortage of work for the organization.
n1 The marketplace of ideas theory "represents one of the most powerful images of free speech, both for legal thinkers and for laypersons." MATTHEW D. BUNKER, CRITIQUING FREE SPEECH: FIRST AMENDMENT THEORY AND THE CHALLENGE OF INTERDISCIPLINARITY 2 (Lea 2001). As Professor Martin Redish writes, "over the years, it has not been uncommon for scholars or jurists to analogize the right of free expression to a marketplace in which contrasting ideas compete for acceptance among a consuming public." Martin H. Redish & Kirk J. Kaludis, The Right of Expressive Access in First Amendment Theory: Redistributive Values and the Democratic Dilemma, 93 Nw. U. L. REV. 1083, 1083 (1999).
n2 The First Amendment to the United States Constitution provides in relevant part that "Congress shall make no law . . . abridging the freedom of speech, or of the press." U.S. CONST. amend. I. The Free Speech and Free Press Clauses have been incorporated through the Fourteenth Amendment Due Process Clause to apply to state and local government entities and officials. See Gitlow v. New York, 268 U.S. 652, 666 (1925).
n3 See Healy v. James, 408 U.S. 169, 180 (1972)("the college classroom with its surrounding environs is peculiarly the ‘marketplace of ideas’").
n4 Charles R. Calleros, Paternalism, Counterspeech, and Campus Hate-Speech Codes: A Reply to Delgado and Yun, 27 ARIZ. ST. L.J. 1249, 1250 (1995)(citations omitted).
n5 Widmar v. Vincent, 454 U.S. 263, 268 n.5 (1981).
n6 See, e.g., ACLU Student Chapter v. Mote, 321 F. Supp. 2d 670, 682 (D. Md. 2004)(holding that the University of Maryland "can constitutionally exclude outsider speech so long as the exclusion is viewpoint neutral and reasonable."); Bourgault v. Yudof, 316 F. Supp. 2d 411, 419 (N.D. Tex. 2004)(upholding regulations on outsiders speaking on public university property and noting "the fact that no court has found a university’s campus to be a traditional public forum.").
n7 See generally Mary Beth Marklein, On campus: Free speech for you but not for me?, USA TODAY, Nov. 3, 2003, at 1A (describing the tension, often involving conservative student organizations, on college campuses over free speech issues). The battles are so intense that, in November 2004, one newspaper editorial opined that "in America today, the worst violators of free speech rights are universities." Silencing Students: UNH Tilts a Lance at the First Amendment, UNION LEADER (Manchester, N.H.), Nov. 3, 2004, at A12.
n8 Speech codes are "regulations, promulgated in the name of tolerance" that "typically punish expression that insults or stigmatizes an individual or group based on sex, race, ethnic origin, or sexual orientation." ROBERT D. RICHARDS, FREEDOM’S VOICE: THE PERILOUS PRESENT AND UNCERTAIN FUTURE OF THE FIRST AMENDMENT 30 (Brassey’s UK 1998). See, e.g., Bair v. Shippensburg Univ., 280 F. Supp. 2d 357, 373 (M.D. Pa. 2003)(issuing a preliminary injunction enjoining Shippensburg University in Pennsylvania from enforcing "the likely unconstitutional provisions" of its speech code).
n9 Free-speech zones "confine speech activities to a specific area of campus." Gary Young, On the Web: Universities Come Under Fire for Efforts to Promote Tolerance and Openness that are Seen as Rights Violations, BROWARD DAILY BUS. REV. (Fla.), Jan. 14, 2004, at 8. See generally Tracie Dungan, Campuses Put Limits on Speech; Balance of Order, Freedom Sought, ARK. DEMOCRAT-GAZETTE, July 13, 2003, at 19 (providing examples of free-speech zones imposed by administrators at several universities and the battles over their constitutionality); Ron Nissimov, Exhibit Led Free Speech Controversy: UH, UT Changed in Opposite Ways, HOUSTON CHRON., NOV. 11, 2002, at A21 (describing controversies over free-speech zones at the University of Texas and the University of Houston).
n10 See generally Robyn E. Blumner, On Campus, Free Speech Causes Indigestion, ST. PETERSBURG TIMES (Fla.), Feb. 8, 2004, at 7P (describing controversies over affirmative-action bake sales, which are a form of "guerrilla theater" at which "cookies are sold at varying prices depending on the buyer’s race and gender. White males may pay $ 1 for a cookie while white females are charged 75 cents, Hispanic students 50 cents and African-Americans 25 cents" in order to make "the political statement that certain groups don’t have to meet the same academic standards to gain college admission.").
n11 John Leo, Campus Censors in Retreat, U.S. NEWS & WORLD REP., Feb. 16, 2004, at 64.
n12 Terry Webster, Citrus College Officials Settle Free-Speech Lawsuit, PASADENA STAR-NEWS (Cal.), Aug. 12, 2003, at News.
n13 Citrus College Dodges Court Date by Dropping Speech Code, CHRON. OF HIGHER EDUC, June 27, 2003, at 30.
n15 Tamar Lewin, Suit Challenges a University’s Speech Code, N.Y. TIMES, April 24, 2003, at A25.
n17 280 F. Supp. 2d 357, 373-74 (M.D. Pa. 2003). See also Shannon P. Duffy, Federal Judge Halts Use of University Speech Code, LEGAL INTELLIGENCER, Sept. 5, 2003, at 1 (describing and summarizing the opinion of U.S. District Court Judge John E. Jones III).
n18 Joyce Howard Price, Judge finds college rule infringes speech rights, WASH. TIMES, Sept. 6, 2003, at A02 (quoting Thor Halvorssen).
n19 Jean-Paul Renaud, Cal Poly Settles Suit by Student, L.A. TIMES, May 6, 2004, at B8.
n21 Michael Carney, California student struggles against ‘disruption’ finding, WASH. TIMES, July 2, 2003, at A03.
n23 Renaud, supra note 19, at B8.
n24 Greg Lukianoff, Tape tells of Gore-y tyranny, WASH. TIMES, Aug. 4, 2002, at B05.
n25 Blumner, supra note 10, at 7P.
n26 Jon Ward, Watchdog group ponders college suits Schools closed protest bake sales, WASH. TIMES, Dec. 12, 2003, at A08.
n27 Beth Kormanik, UNF’s Free-Speech Zone Debated, FLA. TIMES-UNION (Jacksonville, Fla.), Sept. 16, 2003, at A-1.
n28 See Gustavo Arellano, Bake-Off!, OC WKLY (Orange County, CA), Oct.17, 2003, at 14 (describing FIRE as "a Philadelphia-based nonprofit that defends free speech on campuses.").
n29 346 F. Supp. 2d 853 (N.D. Tex. 2004).
n30 Press Release, Foundation for Individual Rights in Education, Victory for Free Speech at Texas Tech, available at http://www.thefire.org/issue.php?doc=texas_tech_victory_pr_100504.htm (last visited Mar. 5, 2005).
n31 Roberts, 346 F. Supp. 2d at 856.
n32 Id. at 858-59.
n33 The speech zone at issue was originally limited to a single area on campus, but was later revised and significantly expanded. As Judge Cummings wrote:
According to the handbook that reflected the prior policy, the University permitted unrestricted student expression only in the Gazebo, a free-standing structure of approximately 400 square feet adjacent to the Student Union building. Under the interim policies subsequently promulgated by the University, that one free-speech zone was expanded to include additional, greatly enlarged areas of the campus. In addition to the Gazebo, what are now identified as "forum areas" for free expression include: a) the northernmost one-third of the Engineering Key; b) the northeast side of the Student Union building; c) the southernmost one-third of the plaza between the Student Union building and the Library; d) the western one-half of the courtyard between the Jerry S. Rawls College of Business Administration building and the Architecture building; and e) Amphitheatre of Urbanovsky Park.
Id. at 866.
n34 The speech code at Texas Tech University subjected students to discipline for:
activities that include, but are not limited to, physical, verbal, written or electronically transmitted threats, insults, epithets, ridicule or personal attacks or the categories of sexually harassing speech set forth in the Code of Student Conduct that . . . are personally directed at one or more specific individuals based on the individual’s appearance, personal characteristics or group membership, including, but not limited to, race, color, religion, national origin, gender, age, disability, citizenship, veteran status, sexual orientation, ideology, political view or political affiliation; and . . . are sufficiently severe or pervasive to create an objectively hostile environment for that individual by interfering with or diminishing his or her ability to participate in, or benefit from, services, activities or privileges provided by the university.
Id. at 866-67.
n35 Id. at 856.
n36 Roberts, 346 F. Supp. 2d at 866.
n38 This policy provides that:
Students and registered student organizations do not need prior approval concerning the content or distribution of such materials as leaflets and handbill. However, students may be required to provide student identification upon request. The director of the Center for Campus Life may impose restriction on the time, place and manner for distribution of printed materials, except for those distributed in the forum areas. The materials, however, may not conflict with the provisions of the Code of Student Conduct and must comply with all applicable local, state, and federal laws.
Id. at 867.
n39 Id. at 873 n.22.
n40 Id. at 870.
n41 Roberts, 346 F. Supp. 2d at 873.
n42 See supra note 33 (describing the areas in question).
n43 Roberts, 346 F. Supp. 2d at 861.
n44 Id. at 863.
N45 Is Intellectual Diversity an Endangered Species on America’s College Campuses?: Full Committee Hearing Before the U.S. Senate Committee on Health, Education, Labor & Pensions (Oct. 29, 2003)(statement of Greg Lukianoff, Director of Legal and Public Advocacy, Foundation for Individual Rights in Education), available at http://health.senate.gov/testimony/100_tes.html (last visited Feb. 10, 2005) [hereinafter Hearing].
n46 Infra notes 50-59 and accompanying text.
n47 Infra notes 60-139 and accompanying text. Copies of the signed verification forms from both David French and Greg Lukianoff affirming the accuracy of their comments are on file with this law journal.
N48 Infra notes 140-158 and accompanying text.
n49 PETER COLLIER & DAVID HOROWITZ, SURVIVING THE PC UNIVERSITY: THE BEST OF HETRODOXY (Center for the Study of Popular Culture 1996).
n50 JOHN K. WILSON, THE MYTH OF POLITICAL CORRECTNESS: THE CONSERVATIVE ATTACK ON HIGHER EDUCATION (Duke Univ. Press 1995).
n51 DAVID O. SACKS & PETER A. THIEL, THE DIVERSITY MYTH: ‘MULTICULTURALISM’ AND THE POLITICS OF INTOLERANCE AT STANFORD (Indep. Inst. 1995).
n52 ALAN KORS & HARVEY SILVERGLATE, THE SHADOW UNIVERSITY: THE BETRAYAL OF LIBERTY ON AMERICA’S CAMPUSES (Free Press 1998); see also http://www.shadowuniv.com (last visited Mar. 17, 2005).
n53 FIRE’s Board of Directors, available at http://www.theflre.org/index.php/board (last visited Mar. 17, 2005).
n54 Jeff Jacoby, From Free Speech to Speech Codes on American Campuses, BOSTON GLOBE, Oct. 19, 1998, at A23.
n55 Carlin Romano, The Freedom to Rant; Study of Political Correctness on Campus Fails to Prove Point, HOUSTON CHRON., NOV. 8, 1998, at Zest 23.
n56 James Lileks, Professors Visit ‘The Shadow University'; Free Speech on Campus? It’s in a Depressing State, STAR TRIB. (Minneapolis), Oct. 11, 1998, at 19F.
n58 Harvey A. Silverglate & Alan Charles Kors, At Area Colleges, A Disturbing Trend On Hate Speech, BOSTON GLOBE, Oct. 12, 1998, at A-17.
n59 Brief biographies of both French and Lukianoff can be found online at the FIRE Web site at http://www.thefire.org/index.php/staff (last visited Mar. 17, 2005).
n60 About FIRE: Mission Statement, available at http://www.thefire.org/index.php/article/4851.html (last visited Mar. 17, 2005).
n61 See Sarah Stern, Rights and Wrongs on Campus: Recent Cases at Wesleyan and Harvard Highlight Campuses’ Struggle to Preserve Students’ Right to Speak Freely While Also Reining in Harassing Messages, CHRISTIAN SCI. MONITOR, NOV. 26, 2002, at 13 (writing that "in the past decade, conservatives often charged that a wave of political correctness left them speechless").
n62 DINESH D’SOUZA, ILLIBERAL EDUCATION: THE POLITICS OF RACE AND SEX ON CAMPUS 144 (Free Press 1991).
n63 Nicholas Wolfson, Free Speech Theory and Hateful Words, 60 U. CIN. L. REV. 1, 13 (1991).
n64 See, e.g., Robert O’Neil, . . . But Litigation is the Wrong Response, CHRON. OF HIGHER EDUC, Aug. 1, 2003, at 9 (writing, from his position as founding director of the Thomas Jefferson Center for the Protection of Free Expression and professor of law at the University of Virginia, that "the goal of FIRE’s recent litigation campaign is laudable" and that "by declaring war on such measures, FIRE merits commendation for refocusing attention on the frailties of speech codes as a catalyst for campus civility.").
n65 Silverglate "has assisted students in trouble since 1969, when he represented student antiwar protesters on trial. He has taught at Cambridge Rindge & Latin School (a public secondary school), University of Massachusetts College III (in Boston), and Harvard Law School." FIRE’s Board of Directors, at http://www.thefire.org/index.phD/board (last visited Mar. 17, 2005).
n66 More information about this organization can be found on its Web site at http://asja.tamu.edu (last visited Mar. 17,2005).
n67 More information about this organization can be found on its Web site at http://ncherm.org/index.html (last visited Mar. 17, 2005).
n68 See generally RICHARDS, supra note 8, at 81 (discussing the Communications Decency Act).
n69 Kathleen Sullivan is the Stanley Morrison Professor of Law and former Dean of Stanford Law School. See Stanford Law School Web site, at http://www.law.stanford.edu/faculty/sullivan (last visited Mar. 17, 2005)(providing biographical information on Sullivan).
n70 See generally Nancy Gibbs, Red Truth, Blue Truth, TIME, Sept. 27, 2004, at 24 (describing the divisions among "Red Truth" and "Blue Truth" in politics in the United States).
n71 Delgado is a critical race theorist and an author or co-author of several books, including Words that Wound. See MARI J. MATSUDA ET AL., WORDS THAT WOUND (Westview Press 1993)(presenting a collection of essays on hate speech, including one by Delgado).
n72 More information about Tufts University, which is located in Massachusetts, can be found on its Web site at http://www.tufts.edu/home/about (last visited Mar. 17, 2005).
n73 See generally JOHN D. ZELEZNY, COMMUNICATIONS LAW: LIBERTIES, RESTRAINTS, AND THE MODERN MEDIA 56-58 (4th ed. 2004)(discussing time, place and manner restrictions).
n74 See supra notes 29-44 and accompanying text (discussing the case of Roberts v. Haragan involving Texas Tech University).
n75 See Letter from Gerald A. Reynolds, Assistant Secretary, Office for Civil Rights, Department of Education, to "Colleague" (July 28, 2003)(on file with authors)(providing, in relevant part, that harassment "must include something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive. Under the OCR’s standard, the conduct must also be considered sufficiently serious to deny or limit a student’s ability to participate in or benefit from the educational program.").
n76 U.S. CONST, amend. I. The Free Speech and Free Press Clauses have been incorporated through the Fourteenth Amendment Due Process Clause to apply to state and local government entities and officials. See Gitlow v. New York, 268 U.S. 652, 666 (1925).
n77 See, e.g., CAL. EDUC. CODE § 94367(a). The so-called "Leonard Law" restricts private postsecondary educational institutions from making or enforcing "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 facility of a private postsecondary institution, is protected from government restriction by the First Amendment." Id.
n78 Healy v. James, 408 U.S. 169, 180 (1972).
n79 See supra note 1 and accompanying text.
n80 See Marklein, supra note 7, at 1 A.
n81 The Supreme Court has protected the use of offensive language in several cases. See, e.g., Hess v. Indiana, 414 U.S. 105 (1973)(protecting, as freedom of expression, defendant’s statement "We’ll take the fucking street later (or again)" made during an anti-war demonstration on a university campus); Cohen v. California, 403 U.S. 15 (1971)(protecting, as freedom of expression, the right to wear a jacket emblazoned with the words "Fuck the Draft" in a Los Angeles courthouse corridor).
n82 Supra note 75 and accompanying text.
n83 See Scott Lehigh, Is Harvard Ditching Free Speech?, BOSTON GLOBE, NOV. 27, 2002, at A19 (describing how "Harvard Law School’s Committee on Healthy Diversity is exploring a speech code on racial matters.").
n84 Corry v. Leland Stanford Jr. Univ., No. 740309 (Cal. Sup. Ct., Santa Clara County, Feb. 27, 1995)(order granting preliminary injunction).
n85 CAL. EDUC. CODE ? 94367 (2004). See generally Julian N. Eule & Jonathan D. Varat, Transporting First Amendment Norms to the Private Sector: With Every Wish There Comes a Curse, 45 UCLA L. REV. 1537 (1998)(critiquing the Leonard Law).
n86 The Stanford speech code was enjoined by a state court judge in 1995, prompting the lead plaintiff, Robert Corry, to call the decision "a decisive victory not only for Stanford students, but students at universities across the nation" and "a big part of the battle over political correctness in the country." Bill Workman, Hate Speech Ban Struck Down, S.F. CHRON., Mar. 1, 1995, at A15.
n87 Corry now practices law in Colorado. See Corry & Fellows, LLP Web site, at http://www.corryandfellows.com (last visited Sept. 29, 2004)(providing background information about Corry and his current legal practice).
n88 Grey currently is the Nelson Bowman Sweitzer and Marie B. Sweitzer Professor of Law at Stanford Law School. See Stanford Law School: Faculty, at http://www.law.stanford.edu/faculty/grey (last visited Mar. 18, 2005)(providing background information about Grey).
n89 Supra note 3.
n90 See generally Robert D. Richards &. Clay Calvert, Counterspeech 2000: A New Look at the Old Remedy for "Bad" Speech, 2000 BYU L. REV. 553 (2000)(discussing the counterspeech doctrine and providing some examples of its use).
n91 See Brandenburg v. Ohio, 395 U.S. 444, 447 (1969)(providing that "the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.").
n92 See Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942)(articulating the fighting-words exception to the First Amendment protection of free speech as words "which by their very utterance inflict injury or tend to incite an immediate breach of the peace.").
n93 RODNEY A. SMOLLA, FREE SPEECH IN AN OPEN SOCIETY 4 (Knopf 1992).
n94 ROBERT TRAGER & DONNA L. DICKERSON, FREEDOM OF EXPRESSION IN THE 21ST CENTURY 33 (Pine Forge Press 1999).
n95 Subsequent to the interview, one actually was more likely to read about liberal speakers being disinvited from on-campus speaking engagements during the presidential election season of 2004. For instance, "George Mason University canceled a scheduled speaking engagement by liberal filmmaker Michael Moore . . . after two conservative state legislators and others complained that public money should not support an overtly political event." Amy Argetsinger & Lisa Rein, GMU Disinvites Moore; Speech, $ 35,000 Fee Drew Criticism, WASH. POST, Oct. 1, 2004, at A01.
n96 Moore proved to be a controversial speaker in the fall of 2004. For instance, Karen Haynes, president of California State University at San Marcos, revoked an invitation to Moore to speak on that campus in September 2004, reportedly "out of concerns that it amounted to a misuse of state funds because the school could not land a conservative speaker of similar magnitude before the November election." Joe Vargo, Speaking Tonight: Moore Uproar Rouses Campus, PRESS ENTERPRISE (Riverside, Calif.), Oct. 12, 2004, at A01. In response to Haynes’ action, the "student government raised $ 45,000 on its own to sponsor his appearance off campus" and Moore drew a crowd of 10,000 people to the nearby Del Mar Fairgrounds — ten times the audience he would have had if he had not been banned from Cal State San Marcos." Lisa Petrillo & Michael Burge, ‘Slacker’ Tour Plays Fairgrounds, SAN DIEGO UNION-TRIB., Oct. 13, 2004, at B-1.
The Washington Post reported a slew of controversies involving planned appearances by Moore on college campuses in fall 2004 as part of his so-called Slacker Uprising Tour:
At numerous campuses, including the University of Arizona and the University of Michigan, plans to book Moore have generated an uproar and demands for another speaker as a balance. Officials at the University of Minnesota announced that they would consider having Moore speak, but only if no public funds were used. The outcry at Utah Valley State College — where Moore will speak this month — led officials to line up conservative broadcaster Sean Hannity as well.
Argetsinger & Rein, supra note 95, at A01.
n97 For instance, Lukianoff talked about newspaper theft during his testimony to a U.S. Senate committee. See Hearing, supra note 45 (containing, in relevant part, Lukianoff’s statement to the committee that "one chilling example of how poorly free speech is understood and how little it is respected in higher education today is the phenomenon of newspaper thefts. For over a decade in at least five dozen documented instances, students have stolen and destroyed tens of thousands of copies of student-run newspapers on colleges and universities across the country in an effort to silence viewpoints with which they disagree.").
n98 See COLO. REV. STAT. § 18-4-419 (2004)(providing in relevant part that the misdemeanor crime of newspaper theft occurs when a "person obtains or exerts unauthorized control over more than five copies of an edition of a newspaper from a newspaper distribution container owned or leased by the newspaper publisher with the intent to prevent other individuals from reading that edition of the newspaper").
n99 See MD. CODE ANN., CRIM. ? 7-106 (2003)(providing in relevant part that "[a] person may not knowingly or willfully obtain or exert control that is unauthorized over newspapers with the intent to prevent another from reading the newspapers").
n100 See generally Charles Burress, Berkeley to Ban Free-Paper Theft, S.F. CHRON., Oct. 16, 2003, at A24 (writing that "the Berkeley City Council has given preliminary approval to a city ordinance banning the theft of free newspapers, a key atonement Mayor Tom Bates promised 10 months ago after he admitted stealing copies of the UC Berkeley student-run newspaper.").
n101 Young, supra note 9.
n102 John Leo, The Beauty of Argument, U.S. NEWS & WORLD REP., June 21, 2004, at 6.
n104 About FIRE:Mission Statement, available at http://www.thefire.org/index.php/article/4851.html (last visited Mar. 17, 2005).
n105 See supra Part III-A.
n106 Hans Zeiger, Code of Silence: Let’s Return Free Speech to College Campuses, SEATTLE TIMES, Sept. 21, 2003, at C4 (discussing speech policies at Shippensburg University, University of New Hampshire, University of Maryland, Washington State University, and Florida Institute of Technology).
n107 See Doe v. Univ. of Mich., 721 F. Supp. 852, 868 (E.D. Mich. 1989)(striking down Michigan’s speech code and writing that "while the Court is sympathetic to the University’s obligation to ensure equal educational opportunities for all of its students, such efforts must not be at the expense of free speech"); UWM Post, Inc. v. Bd. of Regents of the Univ. of Wis. Sys., 774 F. Supp. 1163, 1181 (E.D. Wis. 1991)(finding the University of Wisconsin speech code unconstitutional because it "simply cannot survive the screening which our Constitution demands.").
n108 Zeiger, supra note 106, at C4.
n109 Marklein, supra note 7, at 1A (noting that with support from "conservative, religious and civil liberties groups," students are fighting back).
n110 Campus Rules Overreach, USA TODAY, Mar. 3, 2004, at A12 (describing how speech codes — like the one that was challenged at Shippensburg University — illustrate "how colleges’ efforts to promote campus harmony can violate constitutional rights to free expression by squelching all but the most bland and conformist comments.").
n113 Bair v. Shippensburg University, 280 F. Supp. 2d 357, 360 (M.D. Pa. 2003).
n114 Id. at 361.
n115 Id. at 373.
n116 Id. at 372.
n117 BEN SHAPIRO, BRAINWASHED: HOW UNIVERSITIES INDOCTRINATE AMERICA’S YOUTH (Nelson Current 2004).
n118 Marjorie Kehe, Brainwashing on Campus?, CHRISTIAN SCI. MONITOR, May 24, 2004, at 12.
n122 Gary Young, Free Speech Dilemmas, NAT’L L.J., Jan. 12, 2004, available at http://www.thefire.org/index.php/article/5183.html (noting that Lukianoff reports that "disciplinary actions against students for ‘politically incorrect’ speech are growing in number").
n123 Campus Rules Overreach, supra note 110, at A12.
n124 Karen W. Arenson, Columbia President Denounces Racially Offensive Incidents, N.Y. TIMES, Feb. 25, 2004, at B9 (describing the reaction of Columbia University president, Lee C. Bollinger, to "a series of race-related incidents on campus."). Bollinger is a noted First Amendment scholar and author. See, e.g., LEE C. BOLLINGER, THE TOLERANT SOCIETY (Oxford Univ. Press 1986)(articulating a tolerance theory for freedom of expression); LEE C. BOLLINGER, IMAGES OF A FREE PRESS (Univ. of Chicago Press 1991).
n125 Brittany Anas, Passionate About Being Right, Leader of CU’s College Republicans Loves to Challenge Liberals, DENV. POST, Feb. 15, 2004, at A29 (discussing how 20-year-old Brad Jones taunts the liberals on campus with such things as T-shirts that read: "Join us now or work for us later").
n129 Blumner, supra note 10, at 7P (suggesting that with the repressive nature of college campuses today, "affirmative action bake sales would have stood little chance had it not been for a civil liberties group devoted to championing students’ rights").
n130 Campus Rules Overreach, supra note 110, at A12.
n131 Blumner, supra note 10, at 7P.
n133 Texas v. Johnson, 491 U.S. 397, 414 (1989)(invalidating a Texas flag-desecration statute for failure to meet the strict scrutiny standard of review).
n134 Bair v. Shippensburg Univ., 280 F. Supp. 2d 357 (M.D. Pa. 2003).
n135 See JOHN STUART MILL, ON LIBERTY 19-27 (Currin V. Shields ed., 1956)(1859).
n136 GEORGE ORWELL, NINETEEN EIGHTY-FOUR (Harcourt Brace 1949).
n137 DAN FLYNN, WHY THE LEFT HATES AMERICA: EXPOSING THE LIES THAT HAVE OBSCURED OUR NATION’S GREATNESS (Prima Lifestyles 2002).
n138 See generally RONALD K.L. COLLINS & DAVID M. SKOVER, THE TRIALS OF LENNY BRUCE: THE FALL AND RISE OF AN AMERICAN ICON (Sourcebooks Mediafusion 2002)(providing comprehensive background material on Bruce, his comedy and his legal battles).
n139 This project can be found online at http://www.speechcodes.org (last visited Feb. 12, 2005).
n140 Supra Part III-B.
n145 Supra Part III-B.
n147 Supra note 106 and accompanying text.
n148 Supra Part III-E.
n152 Supra note 134 and accompanying text.
n153 Supra Part III-D.
n155 Supra note 104 and accompanying text.
n156 Supra note 60 and accompanying text.
n157 Supra Part III-B.