Where there is smoke, there is FIRE

July 25, 2007

By Joe Murray at The Evening Bulletin

For the First Amendment fighters employed by the Philadelphia-based Foundation for Individual Rights in Education (FIRE) patrolling America’s college campuses in search of speech codes, censorship, harassment and intimidation, the summer of 2007 has been a good year.

Earlier this year when the University of Rhode Island tried to punish College Republicans for holding a mock whites-only scholarship, FIRE stepped in and the First Amendment prevailed.

In June, FIRE was instrumental in making sure Walter Kehowski was able to return to the classroom. The Arizona professor was suspended from teaching his class at Glendale Community College when he used the college’s e-mail system to post George Washington’s Thanksgiving Day proclamation a day before Thanksgiving. The posting was deemed offensive.

And now, coming of the heels of a solid first half of the year, FIRE has tackled yet another speech code in Colorado.  In a solid victory for free speech rights, student activists, with help from FIRE, convinced Colorado State University (CSU) to revise three speech codes that the First Amendment experts argued were unconstitutional.

“This is an exciting day for free speech at Colorado State,” stated Greg Lukianoff, president of FIRE. “By making these changes, the administration has proven it is serious about protecting its students’ First Amendment rights, and we commend the university.”The controversy began in April when CSU students complained that there were three unconstitutional policies on campus: the peaceful assembly policy, the advertising policy and the hate incidents policy. All three of these policies had the effect of being a speech code—a rule or regulation that impedes the free exchange of ideas and runs afoul of the First Amendment.

Prior to FIRE’s intervention, CSU, a public university, permitted activities such as rallies to take place only at the Lory Student Center Plaza and required students to reserve the space 14 days prior to the event.

FIRE’s director of legal and public advocacy, Samantha Harris, explained, “The only possible defense of Colorado State’s assembly policy would be that it is a ‘reasonable time, place and manner’ restriction. … There is nothing ‘reasonable,’ however, about transforming the vast majority of the university’s property—indeed, public property—into a ‘censorship area,’ and in maintaining a system of onerous requirements by which students must abide in order to exercise their fundamental rights.”

In that same letter, FIRE targeted both the advertising policy and the hate incidents policy. Under the prior advertising policy, CSU barred any “offensive language” and “references to alcoholic beverages or other drugs.” Last year, the policy was used to prohibit CSU libertarians from making a political statement on the legalization of marijuana because a flyer had a picture of a marijuana leaf.

Harris explained that the advertising policy was doomed because a government body cannot censor speech merely because it deems it offensive, and more importantly, “the prohibition on ‘any reference to alcoholic beverages or drugs’ in advertising is also overbroad. This policy, taken literally, prohibits the advertisement of Alcoholics Anonymous or Narcotics Anonymous meetings, as well as the advertisement of debates on pertinent topics such as marijuana policy reform or the sentencing disparity between offenders in possession of crack cocaine versus powdered cocaine.”The hate incidents policy—a policy with a sole purpose of prohibiting “expressions of hostility”—was also problematic.  “A public university such as CSU cannot lawfully ban ‘expressions of hostility.’ Under even the most rudimentary definition of freedom, people are allowed to be hostile. Only when those expressions cross the line into constitutionally unprotected harassment … may a public university like Colorado State prohibit them,” explained Harris.

After receiving Harris’ letter, CSU rethought its positions and amended the policies so that they would be in conformance with prevailing First Amendment jurisprudence. In response to its once narrow peaceful assembly policy, CSU revised the policy to make it clear that free speech activities are welcomed throughout the campus.

The advertising policy was changed to ban “obscene language” and to prohibit advertising from promoting illegal activity. And finally the once overbroad hate incidents policy that punished hostility has now been significantly narrowed to punish carefully defined harassment.

“The events at Colorado State should inspire students everywhere to stand up for their free speech rights,” Lukianoff said.

“CSU did the right thing: it listened to students, took note of the First Amendment and revised its policies accordingly,” stated Seth Anthony, a CSU graduate student and leader of the student activists. “It just goes to show how students really can have an impact on campus policy, especially with the support of an organization like FIRE.”

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Schools: Colorado State University Cases: Colorado State University: Students Fight for Rights to Free Speech and Assembly