Under pressure from FIRE and the ACLU of San Diego & Imperial Counties (ACLU-SD), California State University–San Marcos (CSUSM) has suspended its investigation of several students who might be affiliated with anonymous humor magazine The Koala. Today, in the face of a Title IX complaint about The Koala that the federal Department of Education's Office for Civil Rights (OCR) refuses to release, FIRE and the ACLU-SD have also urged OCR that it must not coerce CSUSM to investigate, censor, or punish protected expression such as the material in The Koala.
On September 27, 2011, Volume 2, Issue 1 of The Koala was published and distributed on CSUSM's campus. On the cover page of the issue, the magazine describes itself as "Crushing Your Hopes And Dreams With Comedy." The magazine uses humor to address a wide variety of topics including animal rights, sex, and the scandals of public figures, such as former Governor Arnold Schwarzenegger's divorce from Maria Shriver.
On or about October 20, 2011, several students who may be affiliated with The Koala were sent disciplinary letters from Associate Dean of Students Gregory Toya. The letters notified them that they were charged with two student conduct code violations because of unspecified conduct on September 27: "Disorderly, lewd, indecent, or obscene behavior at a University related activity, or directed toward a member of the University community," and "Conduct that threatens or endangers the health or safety of any person ... including physical abuse, threats, intimidation, harassment, or sexual misconduct." The students were required to schedule disciplinary appointments on pain of further discipline, including a hold on their student records that would limit their access to registration and could effectively end their academic careers at CSUSM.
FIRE wrote CSUSM President President Karen S. Haynes on October 28, explaining that any disciplinary investigation related to the content and peaceful distribution of The Koala would be legally and morally unacceptable. The speech involved was not harassment or sexual misconduct, nor was the peaceful distribution of protected expression punishable as "conduct." FIRE's letter added that the principle of freedom of speech does not exist to protect only non-controversial speech; indeed, it exists precisely to protect speech that some members of a community may find controversial or offensive, and the Supreme Court has explicitly held that speech cannot be restricted simply because it offends people.
CSUSM pursued its investigation, however, generating a second letter from FIRE and a letter from the ACLU-SD. In our letter, FIRE warned that administrators could lose their qualified immunity and become personally liable for violating students' clearly established constitutional rights. Finally, CSUSM announced to the students on November 21 that it had "suspended" the investigations.
CSUSM now must drop its investigation entirely, expunge the students' records, and stand firm in the face of a Title IX complaint that apparently was filed with OCR by offended students and faculty members.
OCR refused to share any portion of the complaint with FIRE after FIRE filed a freedom of information request to receive it. Today, FIRE urged OCR not to threaten freedom of speech by pursuing an investigation. We wrote:
Your office has previously recognized the fact that a university's legal obligation to prevent discriminatory harassment under the federal anti-discrimination statutes enforced by OCR in no way necessitates the punishment of speech protected by the First Amendment. In a 2003 "Dear Colleague" letter authored by former Assistant Secretary Gerald A. Reynolds, OCR explicitly noted that "OCR's regulations and policies do not require or prescribe speech, conduct or harassment codes that impair the exercise of rights protected under the First Amendment" and that the agency is "committed to the full, fair and effective enforcement of these statutes consistent with the requirements of the First Amendment." (Emphasis added.) This clear and necessary commitment must guide your assessment of the current situation.
FIRE also reminds OCR of the United States Court of Appeals for the Ninth Circuit's recent holding in Rodriguez v. Maricopa County Community College District, 605 F.3d 703 (9th Cir. 2010). In Rodriguez, the Ninth Circuit found that Maricopa County Community College District and Glendale Community College were correct not to punish a professor for offensive but protected speech in emails sent to a university listserv. Despite the fact that the Equal Employment Opportunity Commission had found that a complaint filed by coworkers about the emails and the university's failure to discipline the professor established sufficient grounds to bring suit under Title VII, in an opinion authored by Chief Judge Alex Kozinski for a unanimous panel that included retired Supreme Court Justice Sandra Day O'Connor (who delivered the majority opinion in Davis), the Ninth Circuit held that the professor's emails constituted protected speech and thus could not be punished.
In Rodriguez, Chief Judge Kozinski wrote:
Plaintiffs no doubt feel demeaned by [Professor Walter] Kehowski's speech, as his very thesis can be understood to be that they are less than equal. But that highlights the problem with plaintiffs' suit. Their objection to Kehowski's speech is based entirely on his point of view, and it is axiomatic that the government may not silence speech because the ideas it promotes are thought to be offensive. "There is no categorical 'harassment exception' to the First Amendment's free speech clause." Saxe, 240 F.3d at 204; see also United States v. Stevens, No. 08-769, slip op. at 7 (U.S. April 20, 2010) ("The First Amendment's guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits.").
Indeed, precisely because Kehowski's ideas fall outside the mainstream, his words sparked intense debate [...]. The Constitution embraces such a heated exchange of views, even (perhaps especially) when they concern sensitive topics [...] where the risk of conflict and insult is high. Without the right to stand against society's most strongly-held convictions, the marketplace of ideas would decline into a boutique of the banal, as the urge to censor is greatest where debate is most disquieting and orthodoxy most entrenched. The right to provoke, offend and shock lies at the core of the First Amendment.
Yes, indeed. And as FIRE often notes, the remedy for "bad" speech is "better" or "more" speech, not censorship, investigation, or punishment.