The plight of the College Republicans at San Francisco State University (SFSU) should frighten everyone who values his or her freedom. SFSU, a public university, is putting its College Republicans on trial tomorrow for symbolic expression that is unequivocally protected by the First Amendment. Both FIRE and the American Civil Liberties Union (ACLU) of Northern California have written to the university urging it to see the obvious error of its ways, but SFSU, undeterred by reality, appears to be pressing forward with its kangaroo trial.
The facts are straightforward. After the College Republicans held an anti-terrorism rally on campus, at which they stepped on pieces of butcher paper drawn to resemble the flags of Hamas and Hezbollah, an SFSU student filed a complaint with the university accusing the students of “attempts to incite violence and create a hostile environment” and “allegations of actions of incivility” for “walking on a banner with the word ‘Allah’ written in Arabic script.” (The banners in question were the Hamas and Hezbollah flags, which unbeknownst to the College Republicans contained the word “Allah”). The university should have dismissed this complaint outright, since the only conduct complained of was constitutionally protected expression. (The U.S. Supreme Court held in the widely publicized decision Texas v. Johnson (1989) that flag desecration as an act of political protest is protected by the First Amendment). Instead, the university ignored its constitutional obligations and pressed ahead with an investigation.
Late last week, the College Republicans learned that their disciplinary hearing was scheduled for tomorrow, March 9, 2007, at 12 PM Pacific time (3 PM Eastern). Upon learning that the university was pushing forward with the proceedings, FIRE wrote to SFSU President Robert Corrigan for a second time to urge him to drop the investigation before it resulted in legal liability for the university and the administrators involved. FIRE wrote:
Existing First Amendment law leaves no doubt that the College Republicans’ expressive activity enjoys complete protection under the First Amendment. No reasonable person could claim otherwise…. To be clear, if you continue to ignore your constitutional obligations, you risk personal liability for depriving your students of their rights.
That same day, the ACLU of Northern California also wrote to President Corrigan to warn him against allowing his university to punish constitutionally protected expression:
Because the College Republicans were engaging in protected First Amendment activity at their rally, official punishment of the group or its members would violate the Constitution. Therefore, we strongly urge the administration of San Francisco State University not to impose punitive sanctions in response to this incident…. If there is a cure in the marketplace of ideas for speech one disagrees with, that cure is counter-speech, not censorship.
In the face of such overwhelming and irrefutable evidence that its actions are unconstitutional, I simply cannot understand why the university does not call it a day and drop the investigation. Whatever loss of face it might incur with the complaining students is nothing compared to the risk it is taking by disregarding its most basic constitutional obligations.
Seriously, SFSU, the jig is up. Let it go.