Stand Up for Speech Project

1. Stand Up for Speech Project Robert Corn-Revere, Partner Davis Wright Tremaine Catherine Sevcenko, Litigation Coordinator Foundation for Individual Rights in Education

2. Today’s Session: Overview • Why The Stand Up for Speech project is necessary • Suits We Have Filed • Modesto • Hawaii-Hilo • Iowa State University • Ohio State University • Chicago State University • Citrus College (California)

3. The Problem

4. The Problem

5. The Problem

6. The Goal:Yale’s Woodward Report Report of the Committee on Freedom of Expression at Yale: The primary function of a university is to discover and disseminate knowledge by means of research and teaching … The history of intellectual growth and discovery clearly demonstrates the need for unfettered freedom, the right to think the unthinkable, discuss the unmentionable, and challenge the unchallengeable. To curtail free expression strikes twice at intellectual freedom, for whoever deprives another of the right to state unpopular views necessarily also deprives others of the right to listen to those views. – Committee on Freedom of Expression at Yale, 1975

7. Speech at Public Colleges College and University administrators have forgotten (or don’t want to admit) that “the precedents of [the Supreme] Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large. Quite to the contrary, ‘the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.’” Healy v. James, 408 U.S. 169 (1972). United States Supreme Court

8. Speech Codes: What are They? FIRE defines speech codes as any campus regulation that punishes, forbids, heavily regulates, or restricts a substantial amount of protected speech, or what would be protected speech in society at large. Wide variety of restrictions Free speech zones, civility policies, posting policies, IT policies… Most common type? Harassment policies.

9. Florida State University

11. “Threats” • University of Wisconsin Stout's police chief removed this poster with a picture of Firefly actor Nathan Fillion and a quotation from the show from outside the office door of Professor James Miller • The university's threat assessment team was activated, and Miller's academic dean called him in to discuss the threat assessment team's "concerns”

12. Miller’s Rejoinder … also removed It took national media and the outrage of Firefly fans to get the University of Wisconsin Stout to back down. Threats: "those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals."  Virginia v. Black, 538 U.S. 343, 359-60 (2003).

13. What Is the Supreme Court’s Definition of Harassment in an Educational Setting? Harassment: targeted conduct that is "so severe, pervasive, and objectively offensive that it effectively bars the victim's access to an educational opportunity or benefit." Davis v. Monroe County Board of Education, 526 U.S. 629, 633 (1999).

14. McCauley v. University of the Virgin Islands618 F.3d 232 (3d Cir. 2010) Policy prohibiting speech that causes “emotional distress” Policy forbidding “offensive” or “unauthorized” signs policy prohibited “any act which causes … mental harm or which … frightens, demeans, degrades or disgraces any person” Third Circuit: “desire to protect the listener cannot be convincingly trumpeted as a basis for censoring speech for university students”

15. Van Tuinen v. Yosemite Community College District, (E.D. Cal.) Limited free speech to a 600 square foot area that could only accommodate two students at a time; Required 5 days notice, a written application, and submission of a copy of the applicants student ID; Failure to comply would result in “possible punitive action, including, but not limited to, termination of the program in process; denial of further use of Free Speech Areas; Discipline; Probation; Suspension; Expulsion and/or Removal from campus.” Each student could only use the Free Speech Zone for 8 hours per semester.

16. How bad was this Free Speech Zone? • If all 17,000 Modesto students wanted to exercise their free speech rights in the same semester, each would be allocated 2.57 minutes. • That’s the equivalent of: • One rotation of a ferris wheel (56m diameter); • The time recommended to answer 2 reading comprehension questions on the SAT (and move to the third);

17. How bad was this Free Speech Zone?

18. Legal Challenge to MJC Free Speech Zone • Robert Van Tuinen was told he could not distribute copies of the Constitution on the Modesto Campus on Constitution Day (September 17). • FIRE secured the services of Davis Wright Tremaine, a national law firm, to represent Van Tuinen in a lawsuit. • DWT filed a complaint in federal court in California challenging the constitutionality of YCCD’s policies and seeking damages for Van Tuinen. • As part of the settlement, YCCD had to revise its speech policies completely and pay $50,000 in damages and attorney’s fees.

19. Speech Codes in Court Courts have consistently struck down campus speech codes in cases dating back more than two decades Codes are usually invalidated for two reasons: Vagueness: The code insufficiently specifies what kind of speech is prohibited Overbreadth: The code prohibits constitutionally protected speech

20. Speech Code Defeats McCauley v. University of the Virgin Islands, 618 F.3d 232 (3d Cir. 2010) (invalidating university speech policies, including harassment policy); DeJohn v. Temple University, 537 F.3d 301 (3d Cir. 2008) (striking down sexual harassment policy); Dambrotv. Central Michigan University, 55 F.3d 1177 (6th Cir. 1995) (declaring university discriminatory harassment policy facially unconstitutional); University of Cincinnati Chapter of Young Americans for Liberty v. Williams, No. 1:12-cv-155 (S.D. Ohio Jun. 12, 2012) (invalidating “free speech zone” policy); Smith v. Tarrant County College District, 694 F. Supp. 2d 610 (N.D. Tex. 2010) (finding university “cosponsorship” policy to be overbroad); College Republicans at San Francisco State University v. Reed, 523 F. Supp. 2d 1005 (N.D. Cal. 2007) (enjoining enforcement of university civility policy); Roberts v. Haragan, 346 F. Supp. 2d 853 (N.D. Tex. 2004) (finding university sexual harassment policy unconstitutionally overbroad); Bair v. Shippensburg University, 280 F. Supp. 2d 357 (M.D. Pa. 2003) (enjoining enforcement of university harassment policy due to overbreadth); Booherv. Board of Regents, Northern Kentucky University, 1998 U.S. Dist. LEXIS 11404 (E.D. Ky. Jul. 21, 1998) (finding university sexual harassment policy void for vagueness and overbreadth); The UWM Post, Inc. v. Board of Regents of the University of Wisconsin System, 774 F. Supp. 1163 (E.D. Wis. 1991) (declaring university racial and discriminatory harassment policy facially unconstitutional); Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989) (enjoining enforcement of university discriminatory harassment policy).

21. Solution?Stand Up for Speech Project • Eventually file (and keep filing) in every circuit; • Force schools to abandon unconstitutional policies through settlement or litigation; • Change risk management assessment to attach a cost to ignoring the First Amendment; • Empower students.

22. Burch v. University of Hawaii-Hilo Burch and another student were stopped from distributing Constitutions in the center of a student organization fair; Burch was told to protest NSA spying in the Free Speech Zone “because it’s not the 60s anymore.” “These principles acquire a special significance in the university setting, where the free and unfettered interplay of competing views is essential to the institution's educational mission.” Doe v. Michigan, 721 F. Supp. 852 (E.D. Mich. 1989).

23. Burch v. University of Hawaii-Hilo “I thought that with the extremely overbroad policies in place, trying to make a difference was impossible, but I was wrong. When we go to college, we go there to grow as a person both intellectually and individually, but we can't do these things when our freedoms are not protected.” ― Merritt Burch, Plaintiff.

24. Burch v. University of Hawaii-Hilo “Since the filing of the lawsuit, the university and the students, through their respective attorneys, have engaged in productive discussions to resolve the lawsuit, including exploring possible permanent changes to university policy and practices regarding speech and assembly on campus. The university hopes to resolve the lawsuit with the students. UH Hilo affirms the rights of its students to engage in free speech and other expressive activity guaranteed by the First Amendment.” – A University of Hawai’I news release.

25. Smith v. McDavis (Ohio University) OU administrators told Smith and other students not to wear an t-shirt with the phrase “We get you off for free” because it “objectified women” and “promoted prostitution.” OU’s Student Code of Conduct forbids any “act that degrades, demeans, or disgraces” another “Nor could the University proscribe speech simply because it was found to be offensive, even gravely so, by large numbers of people.” Doe v. Michigan, 721 F. Supp. 852 (E.D. Mich. 1989) (citing four Supreme Court cases).

26. Smith v. McDavis (Ohio University) “I started paying attention to what the university does and what its administrators say, and I realized that we live in a climate that’s very unfriendly for expressing a contrary opinion. Most people don’t know about the specific section of the Code of Conduct that punishes unpopular speech, but they don’t have to: unpopular speech is discouraged at every turn.” ― Isaac Smith, Plaintiff.

27. Smith v. McDavis (Ohio University) “We want to be clear that Ohio University administrators never directed the students or the student organization to not wear the T-shirts mentioned in the lawsuit, and no student misconduct action was ever threatened or taken,” ― Katie Quaranta, Spokeswoman, Ohio University.

28. Gerlich v. Leach (Iowa State University) ISU not only rescinded approval for the ISU NORML official t-shirt, but it adopted and enforced new regulations specifically designed to restrict NORML ISU’s political advocacy. In both 2013 and 2014, ISU rejected other t-shirt designs because they allegedly associated the ISU name with promoting “dangerous, illegal or unhealthy products, actions or behaviors.” “[T]he University never articulated any principled way to distinguish sanctionable from protected speech. Students of common understanding were necessarily forced to guess at whether a comment about a controversial issue would later be found to be sanctionable under the Policy.” Doe v. Michigan, 721 F. Supp. 852 (E.D. Mich. 1989).

29. Gerlich v. Leach (Iowa State University) “College campuses have and always should be a catalyst to new and progressive ideas. But recently at ISU, we've been made to feel like voicing our opinions and beliefs is wrong when it’s absolutely not. It's definitely been a long road and we look forward to reaching an understanding with those involved.” ― Paul Gerlich and Erin Furleigh, Plaintiffs.

30. Gerlich v. Leach (Iowa State University) “In sum, while there is a First Amendment right to comment about the University, there is not a First Amendment right to use the goodwill inherent in trademarks to misrepresent the University’s position. That is what the clarification of Iowa State University’s Guidelines for University Trademark Use by Student and Campus Organizations was intended to assure.” ― Keith N Bystrom, Associate Counsel, Iowa State University.

31. Sinapi-Riddle v. Citrus College • Challenges three unconstitutional policies: • Free Speech Area that the school agreed to abolish after settling a similar lawsuit in 2003 and reinstituted to comprising 1.2% of campus in 2013; • An administrator threatened Sinapi-Riddle with removal from campus for seeking a student’s signature on a petition outside the FSA. • Requirement that student organizations to undergo a two-week approval process for any expressive activity; and • Harassment policy is so broad that a student was investigated under it for giving another student a Valentine’s Day gift. These cases stand generally for the proposition that the state may not prohibit broad classes of speech, some of which may indeed be legitimately regulable, if in so doing a substantial amount of constitutionally protected conduct is also prohibited. 

32. Sinapi-Riddle v. Citrus College “When Citrus College threatened me for exercising [my First Amendment rights], I was appalled that a college would think that it has such powers. The college intimidated me and tried to make me sound as if I had done something wrong. The exercise of free speech should never require a bureaucratic process or someone else’s approval.” ― VinnySinapi-Riddle, Plaintiff.

33. Sinapi-Riddle v. Citrus College Citrus College has not had any public reaction since the suit was filed.

34. Beverly v. Chicago State University CSU administration determined to to silence faculty members Phillip Beverly and Robert Bionaz for their blog, the CSU Faculty Voice, which provides critical commentary on mismanagement at the university. After demand to shut down blog for trademark violation failed, the school adopted a broad and poorly defined “Cyberbullying Policy” as a tool of censorship. Bionaz has been charged under this policy for telling the university spokesman to “shut his yap” in a face-to-face conversation.

35. Beverly v. Chicago State University “It appears that only a court will be able to protect the rights of my campus community to express themselves without fear of retaliation. It is a tragedy that the valuable time of the federal courts would be consumed answering questions that have long since been answered. My commitment to the First Amendment is too strong to have let the behavior of the Chicago State University administration pass.” ― Professor Phillip Beverly, Chicago State University.

36. Beverly v. Chicago State University "The very fact that the two faculty members in question are so concerned about how our efforts to put an end to bullying on our campus will affect them is in and of itself very telling.” ― Wayne Watson, President, Chicago State University.

37. How You Can Help! 1. Join FIRE’s Legal Network 2. Consider acting as local counsel 3. Let us know if you hear of students or faculty being penalized for their expression

38. Thanks for attending! “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.” West Virginia State Board of Education v. Barnette319 U.S. 624, 642(1943)