For seven years I have written for The Huffington Post about the problem of campus speech codes -- absurd, often unconstitutional restrictions on the free speech of college students and professors. Today, my organization, the Foundation for Individual Rights in Education (FIRE) has a big announcement about a major step in the decades-long war against campus speech codes. Here is my statement from our press conference at the National Press Club in Washington, D.C.:
Twenty-five years ago we had reason to think that the "temporary insanity" of campus speech codes had come to an end.
In 1989, the first of the modern generation of speech codes was defeated in federal court in a case called Doe v. Michigan. And from that decision until today, campus speech codes have consistently lost in court as clear violations of the First Amendment that are incompatible with higher education.
The codes, which famously banned everything from "inconsiderate jokes" to "inappropriately directed laughter" and limited "free speech activities" to tiny, out-of-the-way "free speech zones," fared no better in the court of public opinion--often being skewered by those on both the political right and left.
But amazingly, all these years later, campus speech codes are still alive and thriving.
These restrictions on free expression somehow remain the rule rather than the exception even though speech codes have been successfully challenged in more than two dozen lawsuits over the years. Yet, according to our estimates, 58%--nearly three-fifths!--of public universities still maintain speech codes that are unambiguously unconstitutional.
Our organization, the Foundation for Individual Rights in Education (FIRE), was founded in 1999 to defend basic rights on America's college campuses, chief among them freedom of speech and academic freedom.
For 15 years, FIRE's main approach has been to persuade universities through letters and press releases to uphold the free speech rights of their students and faculty. We have challenged universities to defend in public what they do to their students and faculty in private. We have had a positive impact on the free speech rights of, literally, millions of students.
But over time, it has become clear that this is just not enough. Many universities maintain their speech codes not just because they may actually believe in a mythical "right not to be offended" on campus, but because they believe that there is no "downside." They say to themselves, "Well, maybe I can point to our speech codes if we get sued for harassment, discrimination, or personal injury...And it's not very likely that we'll have to go to court for violating student free speech rights, so let's keep our speech codes."
Universities have also relied on the fact that their financial and legal advantages are overwhelming when compared to an 18-year-old student coming onto campus (and taking on six-figure debt to do it).
In this amoral calculus, free speech loses.
FIRE has therefore decided that we need to change the incentive structure to one that favors freedom of speech on college campuses rather than the suppression of dissent.
Today, we are here to announce that we have begun a massive litigation effort with the law firm of Davis Wright Tremaine, and attorneys Bob Corn-Revere, Ronald London, and Lisa Zycherman. Our goal is nothing less than ending the generation-long scandal of campus speech codes, once and for all.
We quietly began this project in the fall of 2013, with a lawsuit at Modesto Junior College in California; a college that told a student he could not hand out copies of the U.S. Constitution on Constitution Day. Following that astonishing example, we actually found another case, at the University of Hawaii at Hilo, in which two students were again told that they could not approach students to hand out Constitutions. The Modesto Junior College lawsuit settled for $50,000. The Hilo case is ongoing.
And that was just the beginning. This very morning, we have filed suit against four more public universities that maintain flatly unconstitutional speech codes.
I'm proud to be joined today by Bob Corn-Revere, who will be providing more detail about these lawsuits, and you will shortly hear from some of the student plaintiffs themselves. It's worth noting that one college we filed against today, Citrus College in California, had already agreed to abolish its absurd speech zone after a 2003 lawsuit and settlement. Universities' stubborn refusal to relinquish their speech codes must not be tolerated.
The half-dozen lawsuits we have already filed are just the beginning. More suits are already in the pipeline, and we're confident that after this announcement more students and faculty members will come forward to challenge speech codes in court.
We also hope that the ever-increasing army of college and university attorneys and risk managers will see this as an opportunity to do the right thing and convince their clients to dump their speech codes once and for all. But if not--well, we may see those colleges in court.
Freedom of speech, like all liberties, only survives when people like these brave students are willing to stand up for their rights--to stand up for speech.
The truth is, when students and faculty members are brave enough to stand up against campus speech codes, they win time and time again. First, take a look at this triumphant list of students and faculty who defeated their campuses' attempt to limit free speech to tiny, Orwellian "free speech zones."
Then check out this video of how one California student challenged his speech code and won at Modesto Junior College:
And this example of how students challenged an absurd "speech zone" policy at the University of Cincinnati:
Students and faculty, you do not need to accept campus speech codes and the quarantining into tiny "free speech zones" as the new normal. Stand up for speech!