free speech

If you don’t know much about First Amendment law, start with the Tinkers.

Siblings Mary Beth and John went all the way to the Supreme Court in 1969 to defend their right to wear black armbands to their public school, a silent protest against the Vietnam War. The majority opinion recognized that students – and their teachers – don’t “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

Though that precedent for the rights of students has been muddied by subsequent rulings, Tinker still carries substantial weight – which is why it’s so heartening to see the siblings return to the high court to demand speech rights in the face of the “heckler’s veto.”

They filed a friend-of-the-court brief in favor of California students who were told they couldn’t wear American flag-themed clothing on Cinco de Mayo because Hispanic students complained.

Their lawyers are the UCLA law professor and blogger Eugene Volokh and Bob Corn-Revere, a D.C. heavy-hitter who’s leading the Stand Up for Speech litigation project.

Keep your Manson T-shirts at home

The 9th U.S. Circuit Court of Appeals approved the school’s action, saying it wasn’t a First Amendment violation, sparking a severe rebuke from three judges who asked for a full-court rehearing.

Even aside from the circuit split – the 9th Circuit diverged from the 7th and 11th – it’s long past time for the Supreme Court to answer “the question of student political speech at school,” the siblings said:

The lack of guidance [about applying Tinker] has left lower courts in the dark about how Tinker should apply in elementary and secondary schools today. This case is an excellent vehicle to offer such further guidance that will provide much-needed clarity for judges, administrators, and students.

Many school speech cases involve speech that might potentially lead to a hostile, even violent, reaction. Tinker itself involved such speech. This case is thus within the core of the Tinker doctrine, and provides an opportunity to address how the First Amendment applies to such potentially provocative speech. Indeed the Ninth Circuit’s approval of a heckler’s veto in this case shows how far some courts have traveled from Tinker.

The siblings warn that students will get the idea that “threatening speakers is an effective way to suppress speech,” producing more threats and more suppression of speech beyond patriotic sentiments.

The brief amusingly lays out the convoluted interpretations of Tinker, where in some parts of the country students can wear T-shirts with anti-homosexual messages, while in others, they can’t wear Marilyn Manson T-shirts because that band “promote[d] destructive conduct and demoralizing values.”

You think Vietnam was polite disagreement?

And nothing has really changed since Tinker, the brief says – debate over Vietnam was “vehement” across the country, and the district judge who upheld the anti-armband policy warned that wearing armbands would “disturb the disciplined atmosphere required for any classroom.”

The Tinker house even got death threats:

One person telephoned the Tinkers’ home on Christmas Eve and said “the house would be blown up by morning.” … A woman called for Mary Beth, and when the young teen got on the line, said, “Is this Mary Beth? … I’m going to kill you.” … The Tinkers received other threatening telephone calls as well. They also received hate mail, and their house was vandalized with red paint.

The heckler’s veto was also attempted during the civil rights movement and in the expulsion of Jehovah’s Witness children who refused to salute the flag, the brief says:

In such an atmosphere, a school principal confronted with a wave of patriotic fervor might conclude that preventing potential disruption justifies forcing a few dissenters to profess love for flag and country. After all, if the Ninth Circuit is correct in holding that the need for order in the public schools trumps the heckler’s veto doctrine, why not dispense with the prohibition against compelled speech as well?

School officials have “some latitude” to maintain order and prevent physical confrontations, but not “absolute discretion,” the brief says:

The [9th Circuit] decision … undermines constitutional values by teaching law-abiding students that the peaceful must surrender their rights in the face of hostility from the violent. Nothing could be more antithetical to First Amendment principles, especially in view of recent events.

Hinting at the growing use of anonymous communications tools like Yik Yak, the brief says:

[Students] might be able to convey their threats indirectly or anonymously, thus facing little risk of punishment. And for this little risk, they would get a substantial reward, in the form of successfully shutting up the speech they dislike – a cheap exercise of power over others that is especially likely to appeal to some

It’s a powerful brief, so read the whole thing.

h/t Student Press Law Center

Greg Piper is an assistant editor at The College Fix. (@GregPiper)

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Free speech attorney says scholar is way off the mark

DeWayne Wickham, dean and distinguished professor of journalism at Morgan State University, published an editorial this week in USA Today that essentially argues free speech rights should not and do not give people the right to make fun of Mohammad.

He argues that Charlie Hebdo, in its latest cartoon image of Mohammed, has “gone too far.”  The “offensive depiction of Mohammed” should not constitute free speech, the journalism professor suggested.

The College Fix reached out to Wickham via email to confirm whether he was suggesting that the First Amendment does not protect insulting Mohammad. He replied that interpretation was incorrect but did not elaborate, nor respond to follow-up emails. Wickham

The image he referenced in his op-ed appeared on the cover of Charlie Hebdo only days after the attack on its office in Paris earlier this month, when radical Islamists killed 12 people. The image shows the prophet crying under a headline: “All is Forgiven.”

Wickham suggested in his op-ed that the Charlie Hebdo cartoon is to blame for several violent riots that have occurred in the Arab world following its release. He then proceeded to call for broad limits on free speech, basing his argument in his understandings of U.S. Supreme Court rulings, writing that:

… given the possible ripple effects of Charlie Hebdo‘s mistreatment of Islam’s most sacred religious figure, at least people in this country should understand the limits America’s highest court has placed on free speech.

In 1919, the Supreme Court ruled speech that presents a “clear and present danger” is not protected by the First Amendment. Crying “fire” in a quiet, uninhabited place is one thing, the court said. But “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.”

Twenty-two years later, the Supreme Court ruled that forms of expression that “inflict injury or tend to incite an immediate breach of the peace” are fighting words that are not protected by the First Amendment. …

Ari Cohn, a free speech lawyer at The Foundation for Individual Rights in Education, told The College Fix in an email that Wickham’s analysis of free speech “misses the mark in several ways.”

“The ‘clear and present danger’ test he cites comes from an early 20th century wartime case holding that voicing opposition to conscription could be prosecuted as an attempt to obstruct the draft,” Cohn said.

Notably, Wickham also fails to mention Brandenburg v. Ohio in which the court clarified “clear and present danger” by establishing an imminent lawless action test. It set a precedent that the state cannot ban speech unless the speaker intends to incite a violation of the law that is both imminent and likely.

Cohn said the satirical cartoonists at Charlie Hebdo “did not advocate, and could not reasonably be interpreted as advocating, for anyone to break the law. They were nothing more than social commentary.”

Wickham also references Chaplinsky v. New Hampshire, in which the Supreme Court defined “fighting words,” which is a type of unprotected speech.

But characterizing the satirical cartoon of Mohammed as “fighting words” is also inaccurate, according to Cohn. He said “fighting words” are “an extremely narrow category of speech limited to abusive epithets spoken face-to-face to a particular individual, which would tend to provoke an immediate violent response.”

Wickham concluded his editorial by arguing that because the satirical cartoons incite violence in the Arab world, they push “Charlie Hebdo’s free speech claim beyond the limits of the endurable.”

Using similar logic, Cohn noted, one could conclude “that the civil rights advocacy of the 1950s and 1960s was not protected by the First Amendment…This advocacy could, would, and did lead directly to violent and heinous acts of reprisal and intimidation by groups like the Ku Klux Klan and other segregationists. The irony of Wickham’s article being published on Martin Luther King, Jr. Day is breathtaking and inescapable.”

Cohn was particularly troubled by Wickham’s understanding of free speech and the role of the press, given his standing in academics.

“If student journalists are being taught that their First Amendment rights are or should be limited by how others might react to their work, the profession is in significant trouble,” he said.

Prior to coming to Morgan State University, Wickham was scholar-in-residence and distinguished professor of journalism at Delaware State University, distinguished visiting professor at the University of Pennsylvania, and distinguished professor of journalism and chair of the Department of Journalism and Mass Communication at North Carolina A&T State University.

College Fix contributor Alexandra Zimmern is recent graduate of the University of Wisconsin-Madison.

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A three-month-old policy at the University of Wisconsin-Madison that insulates professors from harassment has been heralded as a welcome protection against bullying – but concerns remain that the new regulation might be used as a general civility policy, which would run afoul of its original intent.

The policy was initially broached last fall to help stop “unwelcome behavior” at the public university. Examples of such behavior described by a scholar at the university included one woman who “had to deal with a colleague who would only speak to her by barking—literally,” and another who “was banned to the university’s version of Siberia, having his office transferred to the isolated basement of the building that housed his department.”

Faculty members spent much of last semester debating the policy, which many saw as controversial because it could limit the free speech rights of faculty members. Though many agreed anti-bullying measures were needed, concerns were raised that it could use vague, subjective, or overly broad language, effectively criminalizing protected speech.

The initial draft, if passed, would have done exactly that. The section included a problematic definition of “hostile and/or intimidating behavior” that failed to conform to federal standards of harassment. With that, several critics objected, prompting scholars to reform the proposal so it would not resemble a civility code or in any way infringe on the First Amendment.

The final version of the legislation was approved with an “overwhelming” support by a voice vote, Steven Smith, the faculty secretary, told The College Fix. It even included a bolded paragraph ensuring the university’s commitment to the free speech rights of its faculty:

“In no case shall a sanction be imposed in response to a complaint solely about the contents of a faculty members beliefs, views, or opinions taken in the abstract. The policy is not intended to constitute a general civility code addressing ordinary stresses of the workplace, such as occasionally insensitive language or behavior. Nor is it intended to constrain commonly accepted workplace management practices. Nor is it intended to constrain the freedom of faculty to speak out about troubling matters, criticize the administration or university policies, take part in political protest, or to promote and participate in labor unions.”

The First Amendment advocacy group, Foundation for Individuals Rights in Education, as well as senate faculty involved in revising the initial draft, praised the inclusion of this strong statement in support of free speech.

Still, the impact of this policy has yet to be seen.

When asked if the policy will in fact protect the free speech rights of UW faculty as it is intended to, Professor Donald Downs said in an email to The College Fix that while the “substance of the policy is well-written…application is always another matter.”

Writing in Minding the Campus, Downs expanded on this thought, suggesting: “Did we do the right thing? This is the $64,000 question.”

Downs wrote that a controversial article published by Inside Higher Ed after the policy was approved that likened it to a civility code was met with anger among many scholars. The Inside Higher Ed article had interviewed UW-Madison’s Dean of the School of Human Ecology, Soyeon Shim, the original inspiration for the policy.

“In that article, Shim portrayed the policy as either a general civility policy, or as an enforcement threat that could be used to compel people to act more civilly—even though the policy expressly disavows this intent,” Downs stated. “If Dean Shim’s comments reflect the intentions or orientations of individuals who will be bringing claims or who will be involved in the enforcement process, the policy will prove to be a mistake.”

It is unclear whether the senate will propose new enforcement mechanisms to guarantee that the policy is applied properly and fairly.

“The legislation as passed already includes significant safeguards that would prevent its being used to silence opinion or otherwise curtail academic freedom,” Smith said in an email to The College Fix.

College Fix contributor Alexandra Zimmern is recent graduate of the University of Wisconsin-Madison.

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“Big” controversy at the University of Calgary: Some intramural sports teams have come up with catchy handles for their squads … but they’ve irritated some students who think the team names contribute to campus “rape culture.”

As a result, a student committee was “given the job of policing the hundreds of teams.” It seems teams will no longer will permitted to come up with their own monikers.

Some of the “offensive” squads were called “Cunning Stunts,” “Frigid Whore,” “Let Me See Your TDs,” “Just The Tip” and “Muffin Stuffers.”

The National Post reports:

Now, the university says it will highlight the potentially offensive names and send them to the elected student advisory board, which can nix anything offside.

“There’s never been any process like that in place in the university,” said Don McSwiney, a spokesman for the kinesiology faculty.

“We don’t actually believe we’re [students’] parents and it is a bit of a slippery slope. These are adults that go to this institution and for the most part the feeling has always been that these people can govern themselves by the rule of society.”

When students first complained in October, he said, the administration was moved by the argument the sexist team names could discourage some from participating in intramural sports.

“Changing the name should not diminish your ability to enjoy competition. But it will make it easier for others to enjoy it in the spirit of inclusiveness,” he said.

In addition, students themselves will decide what’s acceptable.

Lexi Narowski, the arts representative on the student union, said she went to the university administration after several students approached her with their concerns.

“Some of the names had perpetrated rape culture, I guess you could say,” she said.

“In an academic environment where students are supposed to be progressing and learning about this — women’s’ studies are taught here — this is so inappropriate.”

A Facebook group asking the university to allow all team names has been set up and has (at the time of the article) the support of 300 people.

“Censorship of thought and speech is unacceptable in a free society such as ours. We believe you can say what you want. And it is your right to offend or be offended,” the group says.

It added that team names “were being dismissed seemingly arbitrarily,” based on “the ever subjective emotional state of the reader.”

An intramural basketball team on which I played my college sophomore year was called “Linguine and Red Clam” (after my roommate’s favorite dish). Hopefully that didn’t offend any Italians.

Read the full article.

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When I was a technology law reporter, I covered quite a bit of litigation involving the clash of intellectual property law and the First Amendment. It involved stuff like file-sharing websites (how quaint!) and Google search ads.

That’s why I’m amused to see how a judge handles claims that a pro-marijuana T-shirt can be considered “government speech.”

Iowa State University marijuana activists passed their first legal hurdle this week in forcing the school to let them wear pro-pot T-shirts that include a school logo.

It’s the first case in the Foundation for Individual Rights in Education’s Stand Up for Speech project in which a judge has ruled, FIRE said – three other targeted schools have already settled.

Iowa State lost every argument in its bid to get the case thrown out, and the judge even ruled that President Steven Leath can be sued in his personal capacity.

Cy the cardinal wants you to smoke bud

The school changed its trademark rules in the middle of the game, after the local media ran a story featuring the ISU-approved shirts.

The school chapter of the National Organization for the Reform of Marijuana Laws (NORML) had initially gotten permission to sell shirts with its logo, school mascot Cy the cardinal and a small marijuana leaf.

NORML-ISU.screenshotISU panicked after the media coverage because it said the shirts implied the school itself supported legalized marijuana. Its revised trademark rules banned designs with university marks that include “drugs and drug paraphernalia that are illegal or unhealthful.”

NORML ISU’s interactions with the school trademark office got fairly ludicrous over the next year and a half.

When it submitted a new design without Cy the cardinal, the school rejected it again, saying it represented “a call to action” that could be misconstrued as the university’s own position. When NORML ISU spelled its name “in ink that was varied to create an outline of a marijuana leaf” in another proposed design, the office said that promotes an illegal drug.

This whole time, the school also denied the club its choice of adviser, with the head of student affairs filling the role and allegedly “impeding” the club’s “dissemination of its message.”

This isn’t high school, folks

Federal judge James Gritzner said there’s no infringement issue at hand, perhaps the school’s best chance to beat back the suit.

Several judicial precedents “hold that college administrators cannot control the speech of campus groups … by denying the group a university benefit provided to other groups,” just because they disagree with the groups’ messages, Gritzner said – even if that message is currently illegal.

On the government-speech claim, Gritzner said it was “undetermined whether a college organization’s t-shirt is speech controlled by the state university or private speech controlled by the organization,” so he let the students’ lawsuit continue in that respect. Gritzner did note that “other cases suggest that speech by collegiate student organizations is not government speech.”

In one of the most notable rulings, Gritzner said ISU can’t treat its students like they were in high school: The Hazelwood and Morse precedents, often used by principals to censor high school newspapers, don’t apply to a public university, “which presents characteristics of a public forum.”

Don’t direct your subordinates to harass a club

ISU officials aren’t off the hook either, Gritzner said. Ruling on their claim of “qualified immunity,” the judge said the students “sufficiently” allege facts “indicating that a reasonable college administrator would know that restricting students’ speech based on viewpoint is a constitutional violation.”

President Leath can be sued because he allegedly directed his subordinates to harass the club, and the students’ claims for monetary damages aren’t barred by “sovereign immunity,” the judge added.

In a final stinging rebuke, Gritzner said the students aren’t under any obligation to “exhaust all administrative remedies” – basically, get the continual runaround from the trademark office – before suing, as the school claims.

FIRE said discovery in the case – the exchange of documents and depositions – will keep going until June, with trial scheduled for December. I’m not holding my breath that ISU will last that long before pursuing a settlement.

It’s a bit hard to believe that Iowa, which voted twice for Barack Obama and has had gay marriage for nearly six years, is so uncomfortable with marijuana that ISU’s fundraising is the least bit endangered by Cy the cardinal standing next to a marijuana leaf on a T-shirt.

School officials’ behavior with these activists is simply an exercise in raw power, couched in the boring technical language of intellectual property law.

Greg Piper is an assistant editor at The College Fix. (@GregPiper)

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IMAGES: NORML ISU, Internet screenshot

Tired of “civility” being cited to shut down campus debates? Irritated at the constant infringements on what you can say without getting hauled in front of a disciplinary board?

The University of Chicago may be the place for you.

A committee established by the administration in July, “in light of recent events nationwide that have tested institutional commitments to free and open discourse,” just released a report affirming the school’s zero-tolerance policy on restricting speech.

Whether inviting a communist speaker in the 1930s, celebrating free inquiry during the Vietnam War or just recently affirming that “education should not be intended to make people comfortable,” the school’s leadership has consistently placed free expression at the top of its values, said the report:

Of course, the ideas of different members of the University community will often and quite naturally conflict. But it is not the proper role of the University to attempt to shield individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive. Although the University greatly values civility, and although all members of the University community share in the responsibility for maintaining a climate of mutual respect, concerns about civility and mutual respect can never be used as a justification for closing off discussion of ideas, however offensive or disagreeable those ideas may be to some members of our community.

That doesn’t mean there aren’t certain restraints on limited speech – defamation, “genuine threat or harassment,” or the Supreme Court-backed “time, place and manner” rules unrelated to content:

But these are narrow exceptions to the general principle of freedom of expression, and it is vitally important that these exceptions never be used in a manner that is inconsistent with the University’s commitment to a completely free and open discussion of ideas.

The committee also addresses the so-called heckler’s veto:

Although members of the University community are free to criticize and contest the views expressed on campus, and to criticize and contest speakers who are invited to express their views on campus, they may not obstruct or otherwise interfere with the freedom of others to express views they reject or even loathe.

The committee is chaired by law professor Geoffrey Stone, who has written two books on free speech.

Foundation for Individual Rights in Education President Greg Lukianoff said in a press release the free-speech statement should be counted among other famous declarations of academic freedom: “We hope other universities will adopt similar policy statements in order to protect freedom of speech and academic freedom on their own campuses.”

Read the full statement.

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