Alec Weisman, Editor-in-Chief
* Editors Note: Adam Kissel will be speaking at UCSD next Friday, March 4th. For more information visit: http://www.facebook.com/event.php?eid=142599255801925
Q: What is FIRE, and what are some of FIRE’s most notable cases in the last 5 years?
The Foundation for Individual Rights in Education is a nonpartisan, nonprofit educational foundation based in Philadelphia. It was founded in 1999 by Alan Charles Kors, a professor of history at the University of Pennsylvania, and Harvey A. Silverglate, an attorney in Boston. They created FIRE after co-authoring The Shadow University: The Betrayal of Liberty on America’s Campuses in 1998 and subsequently receiving hundreds of pleas for help from victims of illiberal policies, double standards, intolerable violations of their rights, and intrusions upon private consciences on college campuses.
FIRE’s mission is to defend and sustain individual rights at America’s increasingly repressive and partisan colleges and universities. These rights include freedom of speech, legal equality, due process, religious liberty, and sanctity of conscience. Such rights are the essential qualities of individual liberty and dignity. FIRE protects the unprotected and educates the public and communities of concerned Americans about the threats to these rights on our campuses and about the means to preserve them.
FIRE’s current list of “top cases” is available at http://thefire.org/cases/topcases. Some of our top cases over the past five years, including several court victories against speech codes, are these:
• The University of Delaware implemented a mandatory, coercive, deeply ideological program of thought reform for all 7,000 students in the residence halls. UD dismantled the program after FIRE intervened.
• Syracuse University College of Law has been threatening to expel a law student for “harassment” because of an Onion-like satirical fake-news blog about law school life. SU won’t reveal who his accusers are or say what was harassing about any of it. “Independent prosecutor” and law professor Gregory Germain complained about “people who have a sense of entitlement to free speech” and has sought a gag order on the student.
• UCLA has been trying to fire a professor whose peer-reviewed research on air pollution challenges his department’s environmentalist dogma.
• Valdosta State University expelled an environmentalist student who had used Facebook to peacefully protest a plan to construct new parking garages on campus. VSU lost the lawsuit filed by the student (it has been appealed).
• San Francisco State instituted disciplinary action against the College Republicans for holding an anti-terrorism protest against Hezbollah and Hamas by stomping on homemade replicas of those organizations’ flags. The incident led to litigation over SFSU’s speech codes and the court-ordered abandonment of SFSU’s unconstitutional “civility” policy.
• Binghamton University (formerly SUNY Binghamton) tried to suspend or expel a social work graduate student merely for putting up posters criticizing the department. The posters complained about alleged injustice by the director of the Binghamton Housing Authority, whom the department had hired. The department ordered the student to leave the program for a year with no guarantee of return, to apologize, and to publicly disavow his own views. When he appealed, department chair Laura Bronstein added entirely new allegations. Bronsteindropped all the charges under pressure from FIRE.
• Bucknell University repeatedly censored the protests of the Bucknell University Conservatives Club: a protest of the federal stimulus plan and two anti-affirmative action protests. Each of these fully documented instances of censorship violated Bucknell’s own promises of free expression. Despite national media attention from FOX News, the Wall Street Journal, and others, Bucknell still falsely says that satirical protests like “affirmative action” or “gender wage gap” bake sales on campus are discriminatory and illegal.
• Colorado College found two students guilty of sexually related “violence” for posting a parody flyer that satirized a feminist flyer called “The Monthly Rag.” Under the name “Coalition of Some Dudes,” the two male students posted items such as a quote from President Theodore Roosevelt, a description of a sexual position, and a factoid about a sniper rifle. Colorado College ultimately found them guilty for their “juxtaposition of weapony and sexuality,” and President Richard Celeste and the Board of Trustees backed the punishment.
• Tufts University found student publication The Primary Source guilty of “harassment” for a satire of affirmative action and for printing true but unflattering facts about Islamic extremism, including the fact that all of the countries that punish homosexuality with death have Islamic governments and that author Salman Rushdie had to go into hiding after publishing The Satanic Verses. While Tufts ultimately rescinded its punishment of The Primary Source under pressure from FIRE, Tufts has refused to remove the wrongful finding of harassment from the group’s record.
• A federal court declared Temple University’s harassment policy unconstitutional. Temple appealed but lost in federal appeals court, establishing a new precedent for Pennsylvania, Delaware, and New Jersey.
• A federal court ruled that Tarrant County College violated the constitutional rights of student protesters who intended to participate in the national “Students for Concealed Carry on Campus” protest by wearing empty holsters. Two years in a row, TCC students were told that they could not wear the holsters anywhere on campus and had to confine all protests to tiny “free speech zones,” such as the approximately twelve-foot circle of concrete comprising the “free speech zone” on TCC’s South Campus. With the help of FIRE and the American Civil Liberties Union of Texas, the students won a temporary restraining order. TCC amended its policies but created a new unconstitutional ban on “cosponsorship” of campus activities, which the court also ruled unconstitutional. The court upheld the students’ right to wear empty holsters as part of their protest—even in classrooms.
• Johns Hopkins University punished student Justin Park for posting on Facebook a satirical Halloween party invitation that Hopkins deemed “offensive.” Park was originally suspended for a full year, given 300 hours of community service, ordered to read 12 books and write reflection papers on each, and attend a mandatory workshop on race relations. After FIRE intervened and had his punishment reduced, Hopkins enacted a repressive “civility” policy that absurdly prohibits all “rude” and “disrespectful” behavior.
Q: Where did you go to college, and were there any incidents while you were a student that got you interested in working to promote free speech in an academic setting?
At Harvard in the early 1990s, “political correctness” was becoming an infamous term for the various ways that people wanted others to change their language, apparently via the idea that changing language would change society in the direction that the language police wanted it to go. In those ancient times, a man could talk about what he thought, and few people had trouble understanding that the generic words “man” and “he” fully included all human beings. Some of the thoughtful language critics made good points, but a lot of people were just language thugs and thought police, branding ideas and words they disliked as automatically “racist” or “sexist” and therefore beyond the bounds of rational debate. (This is still a big problem at Harvard; just look at what happened to former president Lawrence H. Summers in 2005 following his remarks on the proportion of women at the highest levels of science.)
In 1991, a student hung a Confederate flag outside her window, launching a long debate about free speech on campus. After Harvard judged that the flag was protected expression, one student hung a swastika outside her window in protest. President Derek Bok and then President Neil Rudenstine released statements distinguishing free speech from unprotected expression such as harassment (most notably after someone vandalized a student’s dorm room door and included an anti-gay slur). Some of the debate during this time was quite thoughtful, but it seemed that many people simply wanted to silence those whose views they disliked.
Q: What is the difference between spoken speech and printed speech, and can government organizations such as University Administrators and Student Government Associations show special privileges to one over the other?
The First Amendment does not recognize a distinction. Both kinds of speech are by default protected, expressing the widest diversity of content and viewpoints. Plato is thought to have argued that printed speech is not good for people because it makes them lazy—they look things up rather than knowing those things in their own minds. But rather than try to differentiate kinds of speech on such a broad level, it might be better to make distinctions in terms of the context of speech. For instance, what you might be able to print in a newspaper, you might not be allowed to print in chalk on the ground right where you are standing to distribute that newspaper. Any special privileges or restrictions on certain speech must be justified in the overall context—most often referred to as the time, place, and manner of expression. The government (including public university administrators and the student government) cannot generally privilege one kind of speech over another outside of defined contexts.
However, it is OK to set caps for funding various kinds of activities. It probably is not OK to put all “media” groups into a category and limit funding for their expressive activities, while not limiting similar activities by other kinds of organizations. A cap on, for example, copying posters, or printing and distributing printed matter, should be the same across all student organizations regardless of category.
Q: Administrators are fond of quoting “the best way to combat hateful speech is with more speech” and yet doing the exact opposite when something controversial happens on campus. What is the best way to hold their feet to the fire and make them uphold their alleged promises?
Supreme Court Justice Louis Brandeis wrote that sunlight is one of the best disinfectants. Usually, administrators won’t persist in violating someone’s rights in public after failing to get away with violating someone’s rights secretly. If they don’t respond to public criticism and their superiors won’t step in, litigation can be a good option. It can be extremely embarrassing and expensive for a university to lose such a lawsuit.
Last year, UCSD and ASUCSD president Utsav Gupta narrowly avoided a lawsuit after Gupta unilaterally cut off funding to dozens of student media organizations on campus, claiming to be advised by UCSD that this act was constitutional. It wasn’t.
Q: Why was the media funding freeze on media organizations enacted by 2009-2010 AS President Utsav Gupta with the support of the UCSD administration unconstitutional?
Utsav Gupta enacted the freeze in order to shut down what he considered offensive expression on campus. In his public statement (see http://thefire.org/article/11596.html), he stated that he wanted to “prevent further fracturing of the student body on an issue,” despite the fact that diversity of ideas is central to college life. His concern was that the free expression of ideas was “generating significant protest from students” as though this was a problem on campus, rather than a hallmark of vigorous debate on campus.
As the agent of a public university, ASUCSD has an obligation to distribute student funds to student organizations in a viewpoint-neutral manner and may not make funding or de-funding decisions on the basis of viewpoint. ASUCSD must distribute funds to student organizations based on objective criteria, regardless of the viewpoints espoused, whether or not ASUCSD members find those points of view objectionable, and regardless of concerns about controversial content. Disregarding this principle in funding decisions is not only morally wrong, but unconstitutional. Students paid a mandatory fee that was entrusted to ASUCSD and designated in part for media organizations, yet Gupta violated that trust and withheld the funds. He acted in a discriminatory way by shutting down funding for the media organizations but not for expressive activity by any other organization.
Q: What is the best way to fight against speech codes and “free speech zones” at UCSD, a public university whereby the entire university should be a free speech zone.
UCSD has a blatantly unconstitutional speech code, declaring that a lot of protected expression—including what many college students do regularly—counts as examples of sexual harassment. These examples include “sexual innuendos,” “remarks of a sexual nature about a person’s clothing or body,” as well as “unwelcome and inappropriate letters, telephone calls, electronic mail, or other communications.” UCSD maintains several other speech codes that are likely unconstitutional; see http://thefire.org/spotlight/codes/225.html.
UCSD also wants students to inform on each other if they show “bias”—such as if they tell a “sexist” joke in public.
Let administrators know that UCSD is clearly violating your First Amendment rights and that you intend to fully exercise your rights. Simply having unconstitutional policies on the books does not just open up UCSD to litigation, but also puts administrators in danger of losing their qualified immunity. This means that they could be personally sued for violating your rights and would not have the usual protection that public officials have in their personal capacities against lawsuits.
Rather than threaten a lawsuit, however, first of all you should try to persuade administrators that they should want to honor and respect your rights as a matter of good education. If you marginalize people whose views you hate, to the point of excluding their voices from campus, you’ll lose the opportunity for dialogue, debate, and learning from one another’s perspectives.
Students are not fragile, weak, and disempowered, needing the coddling hand of alma mater; they are mature, empowered adults who can be trusted to fight “bad” speech with “better” speech.
Besides, in a university perhaps more than anywhere else, scholars should show humility about what we think we know about moral norms; our level of tolerance for the widest possible range of expression and ideas should perhaps be higher in universities than anywhere else.
Hopefully, arguments like these, made privately to administrators and publicly in student publications, will persuade people on campus to make UCSD truly a marketplace of ideas.
Q: With the rise of the Internet in the past 15 years, how is the political reality adapting to virtually unfettered free speech?
Speech is no less protected because it can be found on the Internet. The same protections and exceptions apply. Administrators are now able to see in print a lot more of what students really say to one another, and many of them feel an urge to censor it, even when it is completely protected, off-campus expression. Overall, I think administrators will need to acknowledge that they can’t keep their students in an idealistic bubble, nor should they want to.
Q: How can students show their support for free speech?
Exercising your rights is one of the best ways to demonstrate your support for them. Some of the noblest expressions of support, however, come from people who publicly support others’ right to express their views even while utterly despising those views. But a lot of people do not quite understand that acknowledging someone else’s right to speak does not end the debate—it begins the debate.