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Lawsuit Challenges Speech Code and “Free Speech Gazebo” at Texas Tech

FIRE Continues Assault against Speech Codes on Public Campuses

LUBBOCK, TX—Today, June 12, 2003, FIRE launched the third legal challenge in its campaign against speech codes that prohibit constitutionally protected speech at public colleges and universities. Jason W. Roberts, a student at Texas Tech University, sued that public institution because of policies that violate his First Amendment rights. The suit was filed by the Alliance Defense Fund (ADF), a Phoenix-based nonprofit organization devoted to protecting religious liberty. Jordan Lorence, an attorney with ADF, and Kelly Shackelford, an attorney with the Texas–based Liberty Legal Institute, are assisting in the litigation. Both Lorence and Shackelford are members of FIRE’s Legal Network.

“Texas Tech’s policies show contempt for the Bill of Rights and, in particular, for the First Amendment,” said Harvey A. Silverglate, FIRE’s co-director and a Boston attorney.

The civil rights lawsuit challenges the code both for being invalid on its face and for its actual application to students. The lawsuit targets policies that are “overbroad, vague, involve content-based and viewpoint discrimination, and unconstitutionally restrict student speech.”

Roberts, a law student at the university, risks punishment up to expulsion for his speech. Texas Tech bans “communications [that] humiliate any person.” The university offers, as examples of such punishable expression, “sexual innuendoes,” “referring to an adult as ‘girl,’ ‘boy,’ or ‘honey,’” or “sexual stories.”

Texas Tech, a university of 28,000 students, quarantines what it is willing to recognize as free speech to only one “free speech area,” a gazebo approximately twenty feet in diameter—leaving the rest of the campus a censorship area. Students must have official approval to engage in protests, demonstrations, pamphleteering, or even the distribution of newspapers outside of the gazebo. Students must ask for official approval for these activities at least six days in advance, meaning that they cannot respond in a timely and spontaneous manner to local, national, or global events.

“Students deserve more than 280 square feet of freedom: one square foot per 100 individuals,” said Silverglate. “No one disagrees with reasonable ‘time, place and manner’ restrictions on expression, but there is nothing the least bit reasonable about barring free and spontaneous speech from all but a few square feet of campus. Texas Tech's policies are about as reasonable as allowing free speech for only ten minutes a day.”

Silverglate continued, “Depriving Americans of their fundamental constitutional rights at a public institution is unlawful. The ‘free speech gazebo’ policy is a caricature of the law. An institution committed to free inquiry, robust debate, and a vibrant intellectual life should view such restrictions as antithetical to its very mission.”

FIRE first learned of Texas Tech’s speech code from Trevor Smith of Students for Social Justice, a Texas Tech student organization. Several months ago, the university tried to enforce its censorship area policy against that group, which had planned a protest against the Bush administration’s policies towards Iraq. Texas Tech informed Smith that the protest would be allowed only in the gazebo. On February 6, 2003, one day before the protest, FIRE wrote to Texas Tech President Donald R. Haragan, urging him to respect his students’ rights. The next day, Students for Social Justice held their planned protest outside of the gazebo without any interference from the administration.

“We are very excited to see that the speech code at Texas Tech is being challenged,” said Smith. “Thanks to FIRE and its allies, Texas Tech will be held accountable for its policies. Texas Tech must learn that it may not disregard the rights of its students.”

“Although administrators at Texas Tech recognized—begrudgingly—the First Amendment rights of Students for Social Justice, the continued existence of these policies means that other students are still being denied their rights,” Silverglate said. “With our allies at the Alliance Defense Fund and the Liberty Legal Institute, we will ensure that Texas Tech administrators recognize the constitutional rights of all their students. We will tear down the barriers to free speech.”

Silverglate concluded, “This challenge will make clear to universities across the country that they infringe on students’ rights at their own peril. Texas Tech University itself must be a ‘free speech area’ in a manner consistent with the Constitution and, indeed, with the most essential principles of liberal education. America’s universities must remember that higher education is also a higher calling.”

FIRE is a nonprofit educational foundation that unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals from across the political and ideological spectrum on behalf of individual rights, due process, freedom of expression, academic freedom, and rights of conscience on our campuses of higher education.

FIRE has already facilitated legal challenges to speech codes at Shippensburg University in Pennsylvania and Citrus College in California. More information on FIRE’s campaign against speech codes can be seen on FIRE’s website,

Greg Lukianoff, Director of Legal and Public Advocacy, FIRE: 215-717-3473;
Harvey A. Silverglate, Co-Director, FIRE:
Kevin Theriot, Alliance Defense Fund: 770-995-9144;

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