1. Campus Advocacy & The First Amendment
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Why First Amendment at legalization conference?
Campus Advocacy & The First Amendment
Catherine Sevcenko, Associate Director of Litigation
Foundation for Individual Rights in Education

2. Today’s Session: Overview
Your right to advocate for secular viewpoints (or almost anything else)
Limits to the First Amendment: what they are vs what universities want you to think they are
Ways to fight back when you encounter censorship
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Without power to advocate change won't come. The First Amendment exists to protect unpopular messages.

3. The First Amendment Congress shall make no law
respecting an establishment of religion, or prohibiting the free exercise thereof;
or abridging the freedom of speech,
or of the press;
or the right of the people peaceably to assemble,
and to petition the Government for a redress of grievances.
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Why does this matter?

4. Congress Shall Make No Law: What this Means
This is government
And this is government

5. And so are (almost all of) these

6. Speech at Public Colleges
The First Amendment applies in full on public college campuses.
United States Supreme Court

7. The Supreme Court Says So
“[T]he precedents of this 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).
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Specifically, this is protected.

8. Speech at Private Colleges
Private universities have a First Amendment freedom of assembly right to determine their own rules
Most private universities promise their students extensive speech rights in school materials such as student handbooks, recruiting brochures, and codes of conduct.
Contract theory of student rights.

9. … and Not All Colleges Promise Free Speech

10. This can be tricky
Marywood University denied recognition to SSA student group in 2012
Our Mission & Values
We have examined the unique character of a Catholic University and have delineated in particular those qualities which animate Marywood University:  its respect and support for the Christian Roman Catholic faith tradition, its belief in the power of community and its commitment to service.

11. This can be tricky
But…
Marywood University affirms its commitment to academic freedom.  In so doing, it reaffirms its commitment to the tradition of higher learning that is the heritage of both the Roman Catholic Church and the nation.  It is a tradition grounded on respect for truth, social responsibility and individual rights. It is a tradition that posits freedom of inquiry, open discussion and unrestricted exchange of ideas as essential to the pursuit of knowledge.

12. Moral of the Story…. Always Call FIRE Censors gotta censor
Fagal v. Marywood University

13. 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.

14. Free Speech Zones

15. Harassment What’s the legal definition?
Discriminatory, 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).

16. SSA Conference Harassment Policy
We consider harassment to be continued unwanted behavior directed toward another person. We hope it is obvious that you should not disparage your fellow conference goers on the basis of race, color, national origin, age, creed, worldview, disability, veteran status, sex, sexual orientation, gender identity or gender expression. We further hope it is obvious that you should not make uninvited sexual comments toward anyone. If someone asks you to leave them alone or to otherwise stop a behavior that is directed toward them, comply with that person's wishes immediately. 

17. OSU Sexual Harassment Poster
Sexual harassment is illegal. Inappropriate behavior includes: * Sexual jokes, innuendoes, gestures * Unwanted flirtation, advances, or propositions * Pressure for sex * Leering * Display of sexually suggestive objects/visuals * Display/transmission of sexually suggestive electronic content * Any unnecessary, unwanted physical contact * Sexual assault

18. Civility Policies
“As a Carolinian, I will respect the dignity of all persons … I will discourage bigotry … I will demonstrate concern for others …
Allegiance to these ideals requires each Carolinian to refrain from and discourage behaviors which threaten the freedom and respect every individual deserves.”
BUT a university cannot require its students to categorically agree with value statements or use a creed as a basis for punishment, without violating basic rights to private conscience and academic freedom.

19. Funny or Disrespectful? And who decides?

20. Civility Policies
Nor may universities require students to swear allegiance to an official set of university values.
“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.”
West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943).

21. College Republicans at San Francisco State University v. Reed, 523 F
College Republicans at San Francisco State University v. Reed, 523 F. Supp. 2d 1005 (N.D. Cal. 2007)
Students stomped on the Hamas and Hezbollah flags that contained the word Allah in Arabic.
Students charged with “attempts to incite violence and create a hostile environment” and “actions of incivility”
requirement that students “be civil to one another” and act in accordance with SFSU’s “goals, principles, and policies”
struck down on First Amendment grounds

22. Civility Policies
“The First Amendment difficulty with this kind of mandate should be obvious: the requirement ‘to be civil to one another’ and the directive to eschew behaviors that are not consistent with ‘good citizenship’ reasonably can be understood as prohibiting the kind of communication that it is necessary to use to convey the full emotional power with which a speaker embraces her ideas or the intensity and richness of the feelings that attach her to her cause.
Similarly, mandating civility could deprive speakers of the tools they most need to connect emotionally with their audience, to move their audience to share their passion.”

23. What Is To Be Done?

24. #1: Work with the School Pros: Collaborative Low-key
Advocacy opportunity
Cons:
School can ignore
Slow
School can backslide

25. #2: FIRE Letter alone or with Media
Pros
Somewhat harder for School to ignore
School presented with legal arguments
May lead to positive change
Cons
School can stonewall until the controversy dies down
School can respond with its own legal arguments
School can make minimal changes
“I hit it first” 5 conduct code violations for four words. Within day of FIRE letter (and media coverage), school backed down but did not change policies.

26. #3 Stand Up for Speech Litigation 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.
General overview of goals of SUFS

27. The Goal: Change the Game
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
Quotations to show what the norm should be on college campuses; attitudes that the SUFS project is trying to restore.

28. Ohio University Code of Conduct
OU’s Student Code of Conduct forbade any “act that degrades, demeans, or disgraces” another.
OU Facts
“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).

29. 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 Facts
“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).

30. Smith v. McDavis (Ohio University)
Lawsuit filed July 1, challenging speech code as vague and overbroad
Suit settled in February with revision of speech code and $32,000 in damages and attorney fees.

31. Tinker v. Des Moines Indpt. Sch. Dist., 393 U.S. 503 (1969)
“It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

32. Universities Don’t Get to Redefine Legal Standards!
Isaac just settled.
Please report about this. We’ll work with you if you want to devote a special section to free speech press. Ads.
Mary Beth Tinker (Tinker v. Des Moines Independent School District) & Isaac Smith (Smith v. Davis)

33. Why Sue Your School?
Want to know more? Visit Isaac at the FIRE table and find out what it’s like to be part of a lawsuit to protect free inquiry on college campuses.

34. 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.”
I thought it would be a good illustration to put a banned and OK t-shirt side by side. I’ve got photos of them all, if we want to ask the audience to guess which ones were OK and which not.
“[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).

35. Judge’s order denying ISU’s Motion to Dismiss
“As an initial matter, the Court must address Defendants’ creative argument that this case really alleges trademark protection issues rather than constitutional violations. While that may be the issue in quite different factual circumstances, the Court must conclude it is not the issue at bar.”

36. First Year Accomplishments

37. How You Can Help! Join FIRE’s FSN Network;
Let us know if you or students or faculty you know are being penalized for their expression;
Work with FIRE to come up with a plan of action for making sure your campus promotes free expression.
Any other suggestions for getting members involved?

38. Thank you for listening! Questions?
Ending with Barnette b/c it is my favorite quotation.