Troy University sued for alleged First Amendment violation

November 1, 2005

The Foundation for Individual Rights in Education (FIRE) filed a federal lawsuit against Troy University on Monday accusing the school of First Amendment violations by maintaining a restrictive speech code and censoring student artwork two years ago.

The lawsuit was filed by attorneys Jim Parkman and William White of Parkman Law Firm in Dothan, and FIRE Legal Network attorneys Gabriel Sterling of Troutman Sanders LLP in Washington, D.C., on behalf of Troy University undergraduate Blake Dews, a senior art major attending Troy’s main campus.

In the fall semester of 2003, Dews, an art student, was assigned to create an original work of art on the theme of “birth.” Dews created a photographic display on that theme, including several photos that featured nude models. In an e-mail to The Messenger sent Monday, FIRE attorneys contend Dews’ artwork did not approach the definition of obscenity under federal or state law, nor was it the only one that included nudity. A sign was also posted in the entrance of the exhibit advising patrons that the exhibit contained some nudity, so that no visitors would be exposed unexpectedly to photographs they might find offensive.

Troy University issued the following statement Monday after learning of the suit: “The photographs in question displayed male full frontal nudity and the University did not consider the photographs to be consistent with our community’s standards. This is a matter now under litigation and under the advice of our attorney this is the only statement the University will make at this time.”

Dews, who worked with his art professor on the project, received an “A” and won an award for the artwork, according to that information sent to The Messenger. Yet in early 2004, Dews was notified by his professor that three of the photos featuring nudity would have to be removed. Dews refused to remove the photos, and upon returning to the exhibit found that the three photos had been removed without his permission, although other exhibits with nudity remained untouched.

“What is particularly ironic here is that the Supreme Court has determined that if something has a redeeming artistic value, it is by definition not obscene,” Sterling said. “The very fact that Blake received an A and an award for his art should have made the university aware that the artwork was constitutionally protected expression.”

Parkman called the removal of his art “a disgrace.”

“Blake Dews is a student that came up with an artistic design .. approved by his art teacher at Troy University,” he said. “It’s a disgrace that Blake has been depicted as a porn guy.”

Monday’s suit, filed in U.S. Federal Court of the Middle District of Alabama, charges Troy University with breach of contract, unlawful conditions placed on the receipt of state benefits, and denial of due process and of equal protection of the law.

It also challenges the University’s speech code, which it called overbroad and vague.

“The case against Troy University is yet another step in FIRE’s effort to rid the nation of scandalous and unconstitutional speech codes on college campuses,” FIRE President David French said. “Speech codes like the one in effect at Troy University are incompatible with a free society.”

The university’s handbook states, for instance, that a student can face punishment up to and including expulsion for “indecentŠbehavior or expression”; “any activity that creates a mentally abusive, oppressive, or harmful situation for another;” and for “use of the mail, telephone, computer and electronic messages, or any other means of communication to insultŠor demean another.”

“If insulting or demeaning people is grounds for expulsion at Troy State, I am surprised there are any students left on campus,” FIRE Director of Legal and Public Advocacy Greg Lukianoff said. “Comedians, politicians, activists, or any others who dare to criticize apparently have no place at Troy University.”

The school has also declared “jokes, or other verbal, graphic, or physical conduct relating to” characteristics including “age” and “religion” to be sexual harassment, and also bans “derogatory or demeaning comments about gender, whether sexual or not,” “gossip,” or “suggestive” and “insulting” comments.

“No school that is bound by the First Amendment can ban categories as broad and amorphous as ‘gossip’ or ‘suggestive comments,'” FIRE’s Lukianoff said. “Such absurdly unconstitutional policies not only harm debate and candor on campus, but also dangerously trivialize real harassment.”

“Troy University holds itself out to be an international institution and we feel like a university with such broad contacts should use those contacts to spread the values of the First Amendment of the U.S. Constitution,” said attorney William White, a partner with the Parkman Law Firm in Dothan. “They should promote the idea of freedom of speech and artistic freedom especially within the university’s art department.”

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Schools: Troy University Cases: Troy University: Speech Code Litigation