If you're a student at the University of Oklahoma and you enjoy The Huffington Post, beware: Your school has forbidden you from forwarding any of the fabulous political content you may find on this site.
Sounds crazy, but sadly it's true. Students at the University of Oklahoma have been warned not to use their university e-mail accounts for "the forwarding of political humor/commentary" during this election season.
Meanwhile, anyone who has an actual opinion on the election should think twice about expressing it on a bumper sticker at the University of Illinois, or in their dorm window at University of Texas at Austin. In fact, students who hung an Obama sign in their window at UT Austin were threatened with expulsion.
The good news is that after being confronted by the press, angry students and faculty, or outside organizations, each of the above universities has now backtracked from their original censorship of huge swaths of political speech like bumper stickers, window signs, and e-mails.
But the bad news is manifold. First, each of the above universities has retreated to positions that still leave students and faculty uncertain if they are allowed to express their support of Obama or McCain in many settings. Second, reports of bans on partisan political speech keep pouring in from colleges all over the country. Third, and most importantly, is the fact that this kind of blanket censorship is happening on our college campuses at all, especially during a national election season. Doesn't everyone understand that college and universities exist to foster debate and discussion and that, perhaps, nothing is more interesting and relevant than the upcoming election?
Well, thanks to some genuine legal ambiguity left by a murky Supreme Court case, a wild excess of caution, and some crazy interpretations of existing law, too many colleges seem to have lost sight of free speech, academic freedom and the whole "marketplace of ideas" thing.
True, both public and private universities do have legal duties related to their status as government instrumentalities (public schools) or 501(c)(3) non-profits (private schools) which prevents them from institutionally endorsing candidates (or even appearing to do so), lobbying for legislation or raising money for candidates. Therefore, university bans on administrators using university letterhead to endorse or shill for candidates, for example, are reasonable and required by law. But universities go off the deep end when they translate this common-sense duty into somehow meaning that no one is allowed to engage in partisan political speech on campus.
In an attempt to address the confusion around the law, my organization, the Foundation for Individual Rights in Education (FIRE), has issued an extensive Policy Statement on Political Activity on Campus. We've also written directly to UT Austin, University of Illinois, and University of Oklahoma. Meanwhile, new abuses have popped up at Fresno Pacific University, Louisiana State University, and Cuyamaca College. Last week, we even received a report of a public college in Iowa that, in a move reminiscent of the Tudor and Stuart dynasties, has banned political handbills. And today, I've received reports of a total ban on student campaigning at Duquesne University.
Colleges worried about losing their tax exempt status should follow these simple instructions:
1. Take a deep breath.
2. Ask yourself: "Can the partisan speech or expressive act in question reasonably be construed as the official stance of the university, as opposed to the individual opinion of a student, student group, faculty member, or staff member speaking as private citizens?"
3. If the answer is "no"―and it will usually be―you probably should not be worried.
4. On the other hand, if you have a provost saying that "State University hereby endorses Barack Obama," or a Dean of Students refusing to recognize any student group except those who support Nader/Gonzales―well, then you should probably be concerned.
Scholar and New York Times blogger Stanley Fish has recently pointed out that a university may pass some reasonable rules for professors that limit partisan politics from the classroom, for the sake of professionalism or pedagogy. For example, he argues that, without violating the First Amendment, a school may prohibit professors from wearing partisan buttons in class. I agree. But what Fish is arguing is a pedagogical, ethical and professional concern, not a legal mandate. While a school may pass a rule banning professors from wearing any political pin while in class, a school is almost certainly not required to pass such a ban.
But beyond the legal minutiae and the humble limits on employee partisan speech, it is most important that students understand that they enjoy the broadest possible right to be as partisan as they want on campus. This election has sparked a huge national debate―one that will decide the future of our nation -- so by all means, college students, dive in!
And if someone is telling you "no political speech on this campus," give me a holler.
We're joined by First Amendment attorney Marc Randazza and British journalist Brendan O'Neill to discuss the state of free speech in the United States and Europe. Randazza is a First Amendment attorney and the managing partner at Randazza...