Free Speech

Off Topic Politics & World Issues
41

[quote]vroom wrote:

The code of conduct of UMass is not a law and does not result in legal action, and hence probably does not have to meet the same standards as the hate crimes legislation that was struck down.[/quote]

vroom:

To the extent they are providing a punishment for conduct as the government (which they are – remember, the administration of a public university is the government in sovereign capacity vis-a-vis student conduct codes and the like), they would almost surely have to satisfy the same standard applied to hate-crimes legislation.

This is because, in acting like the government, they are proscribing certain conduct and assigning penalties for violations of their code – if this sounds like lawmaking, it should…

[quote]Also, the code of conduct specifically mentions the fact that any procedings are confidential. It is a huge red herring to blame the University for not making this information public.

Students may arrange to review their own disciplinary records and related information by contacting the Dean of Students Office. Except as provided in the CSC, the University shall not communicate a student’s disciplinary record and related information to any person or agency without the prior written consent of the student or, when the student is a minor, the student’s parents or legal guardian, except as required by law. Disciplinary proceedings under the CSC shall be confidential.

The onus is on interested parties to challenge the University and the provisions of the code of conduct. It is not up the University to prove that it has acted appropriately in this case by releasing information. Calling for them to do so and criticizing for not doing so is a poor tactic.

I might even have to sigh about it… ;)[/quote]

I’m operating under an assumption here, based on some background knowledge: That is that FIRE has contracted to represent the student who is being punished. They don’t come in to a situation like this unless they have a client. As such, they should immediately be granted access to the punishment information. THe confidentiality rules are put in place to protect the STUDENTS, but college administrators have a habit of using this tactic to benefit themselves in these sorts of proceedings.

This is essentially the conflict. As I have mentioned above, the fact that Free Speech is a Constitutional right means it trumps statutory rights – which is why, in order to have a resolution of this conflict in favor of a statutory right of non-discrimination, one would have to remove the Speech consideration, which you are gamely attempting to do – allowing that this is for the sake of argument and not because you are in favor of restrictions on speech, as you have said, I think this is clearly a Free Speech problem, and thus the conflict is cleanly solved in favor of the Free Speech right.

[quote]If you can’t see this as a conflict, then good for you. Is it possible the University has abused their power? Is it possible the University is trying to do the right thing? Is it possible the sanctioned individual is happy with santion with in effect is merely a slap on the wrist?[/quote] THis last one is highly unlikely if he has hired FIRE to represent him against the University [quote] We just don’t know! It is certainly the focus of some pretty heavyweight attention though. I’m suspicious of both sides. Sue me.

On a totally different note, there are other ways to provide accessibility to Universities than racial quotas. For example, choosing the best candidates within very a large quantity of very small geographical areas, with areas having no applications carried into the surrounding regions, would certainly be more representative of the populace in those regions.[/quote]

There are – I am totally against racial-based quotas, but in favor of an intelligently designed system that favors people from economically disadvantaged backgrounds to a small degree. I’m not as worried about geographical representation – and besides, the only geographical preferences I have seen were basically designed to serve as proxies for racial quotas (Texas and California university admissions policies). These only work for awhile though, as more advantaged parents simply move the where there is “lesser competition” to the extent they want to advantage their children.

42

Boston, depending on how they are construed, rights to equal access are conferred by their own amendment. If you consider rules and regulations to be based on and implementing this amendment, then the conflict is much more difficult to judge.

If the University is indeed hiding behind the confidentiality rule, short of a gag order, I don’t see how they could stop the student from simply stating what the penalities imposed were. That I would be against.

Again, I’m not arguing against free speech in any capacity. I do see a balance needing to be found between the 1st amendment and the 14th amendment. Both amendments need to be satisfied, such that states must put into place measures to ensure that they are not in fact depriving certain segments of society.

We are agreed that quotas are a poor choice at attempting this. The ability to apply harsher penalities to all students involved in racial issues during the comission of an act in violation of a code of conduct is an interesting concept. It can be applied equally as required by the 14th and it does not itself limit speech as per the 1st, does it?

The 1st doesn’t specify it, but is speech actually protected during the comission of a crime? Is it protected during the comission of any crime? Has this issue come up per se in the supreme court yet? Based on your comments, initial judgements striking down hate crimes legislation have been based on inability to determine what behavior is or is not considered a hate crime. If so, the issue has not been addressed to date.

It is very possible that organizations are interested in taking this case wherever it needs to go to determine the answers to some interesting questions. Alternately, it could be adopted because they have an agenda and may be able to use the 1st amendment to have it affected.

I’m not saying that these motives are necessarily wrong either. There is value in clarifying the situation. If it was purely political I would be thumbing my nose at it.

[P.S. Sorry if I’m attributing the wrong comments to the wrong parties, but it’s a lot of work to go back and dig out all the references and follow all the links – feel free to correct me.]

43

[quote]vroom wrote:
Boston, depending on how they are construed, rights to equal access are conferred by their own amendment. If you consider rules and regulations to be based on and implementing this amendment, then the conflict is much more difficult to judge.[/quote]

vroom:

I told you this is tricky. THe first thing we need to do is step back and re-examine the “right to equal access”. This is based on statutory law – Congress passed the Civil Rights Acts based on the authority of the 14th Amendment, but that’s not the same thing as having a free-standing right under the 14th Amendment.

Just look at all the court cases related to affirmative action programs. They challenge the power of Congress to create those programs, and Congress must pass various levels of scrutiny in order for those programs to pass muster (BTW, as a side note, the decision on what sort of scrutiny to apply basically decides the case, as it’s effectively impossible to pass strict scrutiny). You don’t have lawsuits going the other way, challenging states that don’t have affirmative action (such as CA and TX) under some sort of theory of a free-standing right to equal access.

The right to free speech, on the other hand, is specifically delineated under the 1st Amendment – actually, it’s a prohibition on the other powers granted to the government, in that they cannot use those other powers to abridge free speech.

Thus, the statutory right to free access (this nomenclature will suffice for our purposes) does not overcome the Constitutional right to free speech.

Actually, I need to clarify this a bit more – the student can get his own punishment, but that by itself isn’t enough to make the case that the regulation is being applied in a manner that is viewpoint-discriminatory. What FIRE needs is access to the OTHER times when the University meted out punishment under the alcohol rule – and the University could easily release this info and be in compliance with the confidentiality rules by simply removing identifying details, which are irrelevant anyway (except, perhaps, in outlying cases of very lenient or very harsh penalties).

See above. While I know people who argue that there SHOULD be some sort of free-standing general right to be free from any and all things that offend them, that currently isn’t the case [I can’t guarantee anything won’t be read into the Constitution in the future by activist judges, given the current caselaw…]

Again, it depends on whether the racial animus is the motivation for the other violation of the code of conduct – same rationale as for hate crimes. You can’t simply see evidence of racism that is unrelated to the violation of the code of conduct and then set about punishing the speech – that would basically be a license to punish speech and then justify it by finding some little niggling violation of the code of conduct.

Let me preface this by saying that I actually think hate-crimes legislation should be unconstitutional under the Free Speech Clause, but that’s not currently the law.

OK, that said, what the law currently does say is that the legislature can decide that a particular crime motivated by racial animus is more damaging than that same crime minus the racial animus, and attach a greater punishment to committing the crime with racial animus.

As to your particular query, on whether speech during the commission of a crime is protected, that depends. If someone were to scream “I hate [racial epithet for black people]!” while robbing white people, and he wasn’t blind or somehow otherwise under the impression he was robbing black people, he could not be punished for that speech.

There are several exceptions to the Free Speech Clause that are specifically relevant to crime: Speech that is the crime (assault, harassment, treason, etc.) and Crime-facilitating speech are the main two. Neither would apply to the case above.

[quote]
It is very possible that organizations are interested in taking this case wherever it needs to go to determine the answers to some interesting questions. Alternately, it could be adopted because they have an agenda and may be able to use the 1st amendment to have it affected. [/quote]

Oh, they definitely do – it’s just that they cannot do so without a client. They would have no standing in court.

[quote] I’m not saying that these motives are necessarily wrong either. There is value in clarifying the situation. If it was purely political I would be thumbing my nose at it.

[P.S. Sorry if I’m attributing the wrong comments to the wrong parties, but it’s a lot of work to go back and dig out all the references and follow all the links – feel free to correct me.][/quote]

I’m interested to get your thoughts on the Columbia incident I posted above. If one were to pursue your arguments, aside from any difference in “academic freedom” as a contractual right w/r/t the employer, your general position would seem to favor punishing the professor. Especially given the professor is in the position of power, and given you are advocating a [currently non-existent] free-standing right of access under the 14th Amendment? [Actually, there’s another difference on the legal level that’s probably controlling, but I am more interested on a philosophical level]

44

Vroom, I agree that debate is good.

#1) Equity issues will be solved as we pass understanding from generation to generation. I know personally a real lot of racist old men in thier 70’s and 80’s. I know about half as many who would be thier sons, maybe in the 45-60 range and I don’t know hardly a single person younger that 30 who is even slightly racist. I assume that in 30 years time, equality will be a non-issue. Change of that magnitude is going to take some time to bleed it’s way out. Generally what I see is that any dislike or what some would call racism is actually social or class warfare.

#2) I can argue all day that the ski is green, does it actually do any of us any good? You are wrong on this issue. The university was in the wrong and you are attempting to argue that for some reason they “might” be right.

here is how I see this debate as an outside observer. BB found a case where a liberal university protected the rights of free speech for a liberal student writing a piece in a school publication. They then turned around and punished a student or group of students for a drawing on a white makerboard that showed a depiction of one of the students in kkk garb with a silly face. Somehow the picture got leaked and yadda yadda yadda. So BB simply points out how even though both could be seen as hurtful, one was punished the other was not just because of their political leanings. Now you are defending thier position, showing your own liberal slant. Even though you attempt to admit you don’t have one.

And don’t give me this equality crap. The student who wrote the tillman peice wasn’t being fair or equal to football players, athletes, or people in the military. So why does one group get protection from you but not another?

Ohhh you didn’t know that people can discriminate based on any group? And that it’s wrong all the way around not just when white males do it?

Vegita ~ Prince of all Sayajins

45

[quote]Terumo wrote:

If you ever return, you should check out the strip that was recently built by the round-about on Demonbreun. They have put in a strip with an Irish pub, a pizza place, a coffee shop, a Chicago-style restaurant, and a couple of upscale bars. The ass that can be found at this place on a weekend night is absolutely absurd. [/quote]

Sweet. I’ll have to check that out when I can make it out there next – hopefully that will be before my 5-year reunion, but I know I’ll at least make it out for that.

[quote]
BostonBarrister wrote:
BTW, did you ever work out at Vandy? That gym was pretty sweet – I miss it.
I’ll be going there in about thirty minutes.

~Terumo[/quote]
I’m jealous. Not only did they have good equipment, but you always had good scenery as well… Gotta love Vandy undergrad girls.

46

Veg,

I know where you are coming from, but there does exist a class of people, particularly minorities, that have had and continue to have undue difficulty in getting their fair slice of the pie – even if and when they are as bright or as qualified as others.

People that belong to the groups you talk about are not identified by visual aspects and realistically do not require support due to systematic discrimination. There is a difference between not liking what you hear being said about a group that you self identify with and having everyone put you into a group and then being denied the same fair kick at the can.

If this can be addressed, within the confines of other constitutional issues, such as the 1st amendment, then perhaps it should be. That is the root of why I’m bothering to debate this. The issue, as originally proposed, dismisses the ability of a University to take steps to promote racial harmony or equity on their own campus. At least that is the underlying gist of the attack as far as I can see.

I am not arguing that the University has acted fairly or justly, but that it may have the ability to take differing actions, which might be viewed as unfair, as long as everyone knows that policy and that the policy is applied fairly.

If done correctly, it may even be able to do so under the confines of the constitution due to support from within the constitution itself… strengthing the ability to give adjustment to free speech. As we all know, there are already some reasonable restrictions on free speech.

Given the ongoing racial issues including racism and discrimination this is in fact a very important issue. It is a wound on the US that has existed for a long long time. Finding ways to close this wound would be good.

Indeed, perhaps if we simply allow enough time to go by, it will improve, but at the same time, how many generations will minorities have to wait? Why should they wait if the constitution directs states to ensure that they are not in fact denied their fair share of life, liberty and property?

Is it really enough to simply let discrimination occur without casting laws that actually cause it, is that the only duty that states have? If you do truly consider everyone to be equal, then how about finding ways to make sure everyone is indeed being treated equally?

I know this is a touchy subject. However, in some places you may find that you are already in the minority. If the tables turn, and you have never taken reasonable steps to ensure equity, your children or the children of your children are going to pay the price.

Maybe that is too far in the future, and because it isn’t going to affect you, you don’t care, but if you wouldn’t want your family or your children discriminated against, you should not idly allow others to be discriminated against either.

Blah blah blah… I’m obviously thinking too far away from the issue at hand here. Maybe the University acted wrongly, as usual, we don’t really have the info yet… unless new facts have come out that I’ve missed.

47

Another interesting example of a public university attempting to censor a message – and, in this case, I think those of us on this website would all agree it was a damn good message:

http://volokh.com/archives/archive_2004_10_28.shtml#1098989531

[Eugene Volokh, October 28, 2004 at 2:52pm] Possible Trackbacks
Speech restriction in public university dorms:

The Foundation for Individual Rights in Education, whose factual accounts I’ve always found trustworthy reports the following:

http://www.thefire.org/issue.php?doc=UNH_Garneau_PR_102704.htm

[Begin excerpt] The University of New Hampshire has evicted a student from housing for posting fliers in his residential hall joking that freshman women could lose the "Freshman 15" by walking up the dormitory stairs. The public university found him guilty of violating policies on affirmative action, harassment, and disorderly conduct, and has sentenced him to mandatory counseling and probation along with his eviction. See the flier here.

In appealing his sentence, student Timothy Garneau explained that the flier was intended to make light of the common frustration with people who delay the elevator by taking it for just one or two floors instead of taking the stairs. UNH rejected his appeal, and Garneau was ordered to move out of his dormitory. Garneau reports that he is currently living out of his car. . . .

The "offensive" flier included a cartoon picture of a woman in outdated workout gear and the following message:

9 out of 10 freshman girls gain 10 - 15 pounds. But there is something you can do about it. If u live below the 6th floor takes the stairs....Not only will u feel better about yourself but you will also be saving us time and wont be sore on the eyes. [sic]

Garneau posted copies of the flier in the elevators of his dormitory, Stoke Hall. According to Garneau, a resident assistant had removed all of the fliers within less than two hours. When Garneau was approached by the Stoke Hall Director and accused of hanging the fliers, he initially denied responsibility, fearing that he would be punished harshly and embarrassed in front of his peers. However, Garneau soon admitted to posting the flier and was charged with offenses including: "acts of dishonesty"; violation of "affirmative action" policies; "harassment"; and "conduct which is disorderly, lewd."

Within a week of the incident, and prior to his hearing, Garneau posted a written public apology for unintentionally offending others in his residential hall and apologized in person to students that he knew had complained.

At an October 8 hearing, the university found Garneau guilty of all charges. Despite Garneau's offers to voluntarily atone for his actions through community service, social awareness projects, and other activities, the university sentenced him to immediate expulsion from student housing and disciplinary probation extended through May 30, 2006. He was also required to meet with a counselor to discuss his "decisions, actions, and reflections" about the incident, to write a 3000-word reflection paper about the counseling session, and to submit an apology letter to the residents of Stoke Hall to be published in the hall's newspaper. . . .[End Excerpt]

The flyer is juvenile – I can certainly see why some people might be offended. And the university would be entitled, I think, either to (1) ban all posting of flyers in elevators and corridors (which are in the category of government property that is a “nonpublic forum,” in which the government may impose reasonable, viewpoint-neutral restrictions), or (2) impose a viewpoint-neutral though content-based ban on fleyrs that are genuinely “lewd” (if those terms were defined precisely enough). It could also punish students for being dishonest when questioned about flyers they posted, if it is doing so solely because the student was being dishonest, and not actually because of the flyer’s viewpoint.

But here it’s pretty clear that the university banned the flyers precisely because they expressed a viewpoint that the university found offensive – likely that women ought to care about losing weight and not being “sore on the eyes” by being somewhat overweight, or (less plausibly) that women ought to take the stairs while men take the elevator. Pretty clearly a First Amendment violation. This particular speech is hardly momentous or deeply important; but if such speech may be banned from university dorms because of its viewpoint, then it’s hard to see how other offensive viewpoints would remain protected.

Gotta stand up for those free-speech rights – especially against those petty tyrant university administrators.

48

BB and Terumo,

I never went to Vandy, so I’ve never been priviliged to visit the weight room.

But we were in and around there - a nice scene, and agreed, nice scenery.

49

Here’s an interesting piece – I don’t believe I’ve ever seen this precise question litigated – I know that there is caselaw holding that it is OK to restrict electioneering within a certain distance from the polls, but this obviously goes further than that…

http://www.nationalreview.com/battleground/2004/battleground200411012219.asp

FLORIDA: THE STRAIN IS SHOWING! [Cris Rapp 11/01 10:19 PM]

The strain of the election is beginning to get to us down here. Palm Beach County election supervisor Theresa LaPore, the Democrat who was at the center of the storm in 2000, is by all accounts a very nice woman. But, amazingly, she recently issued a rule forbidding the media from photographing or interviewing voters lined up outside the polls. Yesterday a deputy enforcing the rule punched a reporter who was taking photos, then slammed him against a parked car and arrested him. Said a police department spokesman: "We’re not going to let anyone interfere with the orderly conduct of the elections process here.? Well, I guess not!

It?s getting tiresome to ask this but I can?t resist: Can you imagine the uproar if a Republican election supervisor had issued such a rule?

50

Another along the same line:

http://www.editorandpublisher.com/eandp/news/article_display.jsp?vnu_content_id=1000697509

Ohio Papers Determined to Cover Polling Places, Despite Sec. of State’s Ban

By Joe Strupp

Published: November 02, 2004 11:25 AM EDT

NEW YORK Despite a directive from the Ohio secretary of state barring reporters and photographers from polling places, some newspaper editors are urging staffers today to ignore the order and seek access to voting sites until they are ordered out.

“We are going to proceed on the assumption we will get in and will until we get thrown out,” said Doug Clifton, editor of The Plain Dealer in Cleveland, who estimates that up to 50 of his newsroom staffers would be visiting polling places Tuesday in the hotly contested state. “They were getting in this morning [Tuesday], but not everywhere.”

In addition, at least one paper – The Columbus Dispatch – has registered newsroom employees as election challengers so they gain access to polling places.

“We filed to be challengers because election officials said they would strictly enforce laws regulating who can be in polling places – voters, poll workers and challengers only,” Dispatch Editor Ben Marrison wrote in a column. “Dispatch staffers are registered as challengers for every precinct in Franklin and Delaware counties.”

Marrison could not be reached for comment Tuesday morning.

The Dispatch opted for the challenger approach after Secretary of State Kenneth Blackwell issued a directive on Oct. 20 to local election officials reminding them that state law prohibits anyone from entering polling places unless they are voting, monitoring the area as a challenger, or working as a voting official or witness.

The Akron Beacon Journal filed suit against Blackwell’s directive, but that challenge was denied by U.S. District Judge Paul Matia on Monday. Newspaper attorneys were still discussing further appeals, but none had been filed as of Tuesday morning.

“The issue is the voter’s right to privacy in the voting place,” said Betty Hull, director of state advocacy for the secretary of state, who defended his actions. “He intends to fulfill his obligation to enforce the law.”

Two other directives by Blackwell to bar exit pollers and registered challengers from polling places were blocked in separate court rulings within the last two days. Those court orders allowed challengers to be in the polling places and exit pollers to be within the 100-foot perimeter set by Blackwell but not inside the polling places themselves.

Carlo LoParo, Blackwell’s press secretary, said the Dispatch registered staffers as challengers on behalf of a committee opposing a ballot initiative for a state constitutional amendment banning gay marriage. Despite the fact that the newspaper openly admitted the challengers would be there to act as journalists, he said the effort was considered legal. “If the committee is comfortable having individuals from the Dispatch representing them, that is within the law,” LoParo said.

Some editors are instructing reporters and photographers to ignore the secretary of state’s directive and get into the polling places if possible.

Mike Burbach, managing editor of the Beacon Journal, offered a plan similar to the Plain Dealer’s. “We are going to try to get in, and, if they let us, we will,” he said. “[Our reporters] have gotten into a couple of places so far, and we will do what we always have, show up and record the news.”

But both Burbach and Doug Clifton emphasized that no reporters or photographers would disobey officials who ordered them to leave. “We will not defy the law,” Burbach stressed. “But we will do what we have to within the law.”

51

I wanted to post this as a nice comparison for what happens in other Western-style “democracies” when the government gets to control speech, for whatever reason (“hate speech” being the most prominent) – basically, they overstep and, being the devious little bureaucrats they are at the decision-making levels, they repress dissent against the orthodox views (in this case, they get rid of a mural that had the bad taste to quote scripture) - and if you disagree with their decision and want to publicize it, you get arrested [BTW, I personally don’t agree that shouting "Infidels must die! deserves protection, because it is advocating criminal acts, which I don’t think comes under the rubric of free-speech protection]:

http://maarten.typepad.com/brusselsblog/2004/11/thou_shalt_not_.html

“Thou Shalt Not Kill” = racist

(via LVB: Tolerantie (1).) In the Netherlands, artist Chris Ripke reacted to the murder on Theo Van Gogh by an islamic fundamentalist by painting a mural with the text “Gij zult niet doden” (“Thou Shalt Not Kill”), one of the ten commandments of the Christian religion.

But because the head of the nearby mosque complained to the police that this was ‘offensive’ and ‘racist’, the cops came and sent in city workers to sandblast the mural. A local journalist, Wim Nottroth, who wanted to protest against this by standing in front of the mural was arrested. Video of the event, here: http://www.noord.kw.nl/index.php?page=video&film_ID=732

It has come to this.

In my opinion, free speech is something absolute. “Thou Shalt Not Kill” or “All infidels must die” both deserve equal protection. Mind you, as speech. Not as actions. I firmly believe that if everybody is free to shout out his opinions as loudly as possible, it becomes a whole lot easier to spot the dangerous people.

And then, via more free speech, it becomes possible to make them see the error of their way, or at least drive away supporters by exposing their ‘funny’ ideas.

Also, the moment they make a move to put ideas into practice that harm others, it’s a whole other ballgame. Talking about killing somebody is okay, buying a gun to do it and staking out his house is not.

And it would be a whole lot easier for the cops to arrest some loon on a stakeout if he has been allowed to loudly trumpet his intentions before that. I’m just saying…

52

More evidence of petty little tyrant administrators trying to stifle viewpoints with which they disagree:

http://volokh.com/archives/archive_2004_11_07.shtml#1100016989

Do not question:

I quote below an e-mail that was apparently sent by one of the assistant deans at University of Tulsa College of Law. (I e-mailed the assistant dean to confirm its authenticity, but did not hear back; and when I called the author to provide an opportunity to challenge the authenticity and to provide the school’s side of the story, the assistant dean declined to do so.)

The gist of the message is that student groups that “undertake to question the legitimacy of another student organization or deliberately question the programs of another student organiz[a]tion” will lose their funding from the student government (funding that I assume comes from the school), and “Institutionally, . . . may jeopardize their recognition as a legitimate law school organization.” Certain viewpoints are apparently now subject to official discipline at the law school.

Just to get a sense of the potential scope of the policy, note that it doesn’t simply aim at rudeness (e.g., profanity or even personal insults). It applies to anyone who expresses the viewpoint that some other group, or its speakers, are improper. If a racist group set up shop at school, other groups would risk defunding for “question[ing the racist group’s] legitimacy.” If a group invites a speaker who is a racist, Communist, Islamo-fascist, other groups would be barred from condemning such an invitation, since that would be “deliberately question[ing] the programs of another student organization.” In fact, if the policy were applied evenhandedly, then any group would risk defunding for calling for another group’s defunding, since that would literally be “question[ing the other group’s] legitimacy” (since the argument would be that the other group is not legitimately entitled to funding).

The University of Tulsa is a private university, so this sort of attempt to squelch internal dissent against the actions of other groups does not violate the First Amendment. (If it were a public university, the policy probably would violate the First Amendment, see Rosenberger v. University of Virginia (1995).) Nonetheless, while private universities legally may restrict their student groups’ freedom this way ? may exclude them from equal funding and potentially equal access to school resources in order to deter student expression ? they nonetheless ought not do it, as a matter of professional ethics and academic freedom. (The University of Tulsa Statement on Rights, Freedoms, and Responsibilities specifically acknowledges the importance of student freedom of expression.
http://www.utulsa.edu/studentaffairs/policies/policies.asp )

It’s true that this is just a matter of funding and school recognition (I take it that school recognition would be needed for access to classrooms, bulletin boards, and the like). Presumably individual students who engage in such speech wouldn’t be subject to discipline or expulsion.

But the school is using the threat of defunding and loss of recognition as a deliberate means to prevent the expression of viewpoints that it disapproves of. The school’s goal is to reduce the range of viewpoints that are available, not through persuasion but through the threat of denying groups the sorts of benefits that are seen as necessary for the group to effectively operate at the school. This is not what an institution that values academic freedom or open debate, it seems to me, should do.

“The College of Law wants to insure that every student organization feels comfortable in carrying out its mission and conducting programs to enhance law school life,” the message says. Actually, they don’t seem that concerned about every student organization ? those that want to criticize, however politely and reasonably, other groups are certainly not made to feel comfortable. But more broadly, it seems to me that law schools shouldn’t be in the business of providing “comfort” for student organizations at the expense of freedom of debate. Even if there is some room for true civility codes at private universities, even those that claim to be devoted to academic freedom, there should be no room for such attempts to suppress student viewpoints.

Here’s the e-mail (all name and address omissions are by me):

Date: Thu, 04 Nov 2004 09:15:56 -0600
From: [Name omitted]
Subject: [Tulaw-students] student organizations
To: tulaw-students@mail.law.utulsa.edu

Dear Students:

This is just a reminder that the purpose of our student organizations is to provide students the opportunity to hone their leadership skills, develop special interests, and provide a service to the community. We are very privileged here at the College of Law to have a very diverse group of student organizations. Not only do these varied groups add to the richness of our law school, but they also promote learning, understanding and tolerance. In addition, each student organization is a powerful ambassador in the community for the College of Law and an important admissions recruitment representative.

In this regard, we would like all organizations to reflect on their stated missions and encourage their members to support the existence of other student organizations whether they agree or disagree with their cause. Also, the SBA has made it clear that if any student organization undertakes to question the legitimacy of another student organization or deliberately questions the programs of another student organiztion, funding for that organization will be pulled. Institutionally, that organization also may jeopardize their recognition as a legitimate law school organization.

The College of Law wants to insure that every student organization feels comfortable in carrying out its mission and conducting programs to enhance law school life. If an organization at any time feels intimitated by other groups or is uncertain about the appropriateness of a program, I welcome you to contact me or [name omitted], SBA President. We wish to be as supportive to you as possible.

I hope this information is helpful. All of you are so important to the College of Law and we applaud your many successes!

Please feel free to contact me or [name omitted] should you have any concerns about your organization or other matters.

Sincerely,

Dean [name omitted] and [name omitted], SBA President

Here also is the e-mail that may have prompted the new policy (though my source, who is not the author of the e-mail quoted below, is not positive); I wouldn’t have quite written the message this way, but it seems to me to be well within the bounds of civil debate, as much as a similarly worded criticism of the Federalist Society, for instance, might be:

[Name omitted] on Thu Oct 21
Subject Line: [Tulaw-current-events] This is from the "Alliance for Justice" website...A left-wing partisan group? Judge for yourself.

--------------------------------------------------------------------------------

Dear TU Students,

The group sponsoring the film "Just One Vote," The Alliance for Justice, is a fringe left-wing group. Unfortunately, the groups that have chosen to sponsor this event have failed to disclose this fact. Please visit the Alliance for Justice website and see that they have an openly partisan left-wing agenda for America ? an agenda well outside the mainstream of political discourse. The excerpt below on the history of the judicial selection project is from the Alliance for Justice website. After reading this excerpt, and / or visiting their webiste, I urge you to judge for yourself where they stand. Thanks for your time. Full disclosure and fairness to both sides in this political season have prompted me to send this message.

Sincerely,
[name omitted]
Vice President
Republican Law Society

History of the Judicial Selection Project:
[Text, which seems to be copied from http://www.allianceforjustice.org/judicial/about/history/ is omitted by Volokh.]
53

From Belgium, showing the extent to which anti-hate-speech laws can be used to stifle political expression – a court had declared the largest party in Belgium illegal because it is “racist” [note, I know nothing about this party, but am very, very glad this cannot happen in the U.S.]

http://sg.news.yahoo.com/041109/1/3odtu.html

Wednesday November 10, 2:35 AM

Top court brands Belgian far-right party racist

Belgium’s far-right Vlaams Blok was branded racist in a supreme court ruling that will force one of Europe’s most successful anti-immigrant parties to relaunch itself.

The supreme court upheld a verdict by a lower court in April that found the party to be guilty of “permanent incitement to segregation and racism”.

The top court rejected all 21 arguments put forward by the Vlaams Blok in an appeal against the April ruling by a court in Ghent, saying that freedom of speech had its limits under tough new anti-racism legislation.

The verdict was met with applause from anti-racism activists inside the packed courtroom but gasps from party supporters.

Party officials had warned that the failure of the appeal would spell financial ruin for the Vlaams Blok with the loss of 250,000 euros (325,000 dollars) in annual public funding.

“What happened in Brussels today is unique in the Western world: never has a so-called democratic regime outlawed the country’s largest political party,” Vlaams Blok leader Frank Vanhecke said in a statement.

"Today, our party has been killed, not by the electorate but by the judges.

“We will establish a new party. This one Belgium will not be able to bury; it will bury Belgium,” he said.

The Vlaams Blok wants the richer, Dutch-speaking region of Flanders to secede from Belgium, whose other main community is French-speaking. The two populations co-exist in an uneasy federal partnership.

The party said after weekend talks that, if it lost the appeal, it would relaunch itself under the name “Vlaams Blok+” or “Vlaams Belang” (The Flemish Interest).

It said it would no longer advocate the wholesale expulsion of non-white immigrants.

But the party vowed to continue its campaign against immigration and to demand independence for Flanders, whose main city is the wealthy and cosmopolitan port of Antwerp, the world capital of diamond-cutting.

The city has large North African and Orthodox Jewish minorities. It has seen a spate of anti-Semitic attacks recently, while a radical Arab group has been staging vigilante patrols of North African neighbourhoods.

Two opinion polls last month placed the Vlaams Blok as the most popular party in the region, ahead of the Christian Democrats, after it came second in June regional elections.

In national elections in May last year, the Vlaams Blok posted the best performance in its 26-year history by gaining three more seats in Belgium’s 150-seat parliament to take its tally to 18.

But despite its poll success, the Blok has been kept out of power by a political “cordon sanitaire” of isolation by mainstream parties.

Under the relaunch, which is planned for this coming weekend, the new-look Vlaams Blok plans only a slight modification to its unabashed xenophobia.

Instead of pushing for the forcible expulsion of non-European immigrants, in future it will demand the departure of minorities “who reject, deny or fight against culture and European values like the separation of church and state, freedom of expression and equality between men and women”, it said.

“We are a modern party, of the nationalist right. We are now the reference point in Europe,” the Vlaams Blok’s charismatic leading light, Filip Dewinter, told Monday’s Het Laatste Nieuws daily.

The party has led a resurgence of the extreme right across Europe including the Austrian Freedom Party of Joerg Haider, Jean-Marie Le Pen’s National Front in France and murdered Dutch firebrand Pim Fortuyn.

The Vlaams Blok’s rise has been helped by public antipathy to the ruling elite in Antwerp, whose council was forced to resign en masse over a corruption scandal in March last year.

54

Another interesting development on the Free Speech front – today, the Supreme Court rejected the state of Missouri’s challenge to an appeals court ruling that required it to allow the Ku Klux Klan to participate in its “Adopt-a-Highway” program – meaning Missouri must allow the Klan to participate and to put its name on the signs on the roads the same as it does for other groups – it is not allowed to discriminate against the KKK based on that organizations political beliefs:

? Rejected Missouri’s appeal over its decision to bar a Ku Klux Klan group from a highway litter cleanup program. That means that the KKK chapter must be allowed into Missouri’s Adopt-A-Highway program, which is designed to save money by using volunteers for garbage pickup. Volunteer groups are publicly thanked with signs along the highway acknowledging their help. Missouri had argued that a sign marking the KKK stretch of road could lead to more dumping, and could endanger highway workers mistaken for Klan members. The Klan sued and won on grounds that it had a First Amendment free speech right to participate. Every state but Vermont has such a program. States supporting Missouri in the appeal argued that the Supreme Court needed to intervene so that states unwilling to partner with the KKK would not decide to abolish their programs. (Rahn v. Robb)

55

I wonder if the Klan guys wore their little bedsheet getups to court. You can see why Missouri argued the way they did… if I was driving along a “KKK sponsored road”, and I thought that a Klan member would have to pick up my trash, I would seriously consider littering there just out of spite. But that’s just me.

56

[quote]BostonBarrister wrote:
Missouri had argued that a sign marking the KKK stretch of road could lead to more dumping, and could endanger highway workers mistaken for Klan members.[/quote]

Gee, let’s not dissappoint them.

57

Referencing the Columbia University problem above, this post gives critique and update on that ongoing controversy:

http://www.nationalreview.com/thecorner/05_01_09_corner-archive.asp#050053

CONTROVERSY AT COLUMBIA [Stanley Kurtz]
A bitter dispute has been roiling the waters at Columbia University for four months now. Although the Columbia conflict has stirred up a lot of local interest, there?s been little national attention. That?s too bad, because the Columbia controversy has just called forth an extremely important statement on academic freedom and intellectual diversity–a statement with implications that go well beyond the Columbia dispute. The commotion at Columbia began when students produced a film alleging classroom intimidation of pro-Israel students by the overwhelmingly pro-Palestinian faculty of Columbia?s Department of Middle East and Asian Languages and Cultures. The film left many of Columbia?s alumni and donors outraged at the one-sided bias and intimidation now typical at this once great university. Various faculty at Columbia have responded to the film, and to alumni threats to withhold donations, by warning of a ?McCarthyite witch hunt? that endangers academic freedom. For a full review of the controversy, see this story from New York Magazine, ?Columbia?s Own Middle East War.? ( http://www.newyorkmetro.com/nymetro/urban/education/features/10868/ )(On the whole, the article is balanced, but it includes a totally distorted account of HR 3077, the bill that would reform federal subsidies to Middle East Studies.) For a powerful account of faculty bias at Columbia, see ?Hate 101" ( New York Daily News ) by Douglas Feiden of the New York Daily News. But what strikes me as the big story in this dispute is a statement on academic freedom and intellectual diversity just released by FIRE ( FIRE Letter to Columbia University President Lee Bollinger, January 10, 2005 - FIRE ) (the Foundation for Individual Rights in Education). The FIRE letter is offered as a rebuttal to a statement by the NYCLU ( http://www.nyclu.org/bollinger_ltr_122004.html ), the New York branch of the ACLU. The NYCLU letter takes the professors? side, claiming that student criticism and donor anger threaten academic freedom. The FIRE statement offers a powerful rebuttal to NYCLU?s claim.

The truly important thing about FIRE?s statement on the conflict at Columbia University is that it successfully shows how to draw the delicate line between concerns about a professor?s academic freedom, on the one hand, and the rights of students and alumni to protest faculty bias and indoctrination, on the other. The FIRE letter also advances a key argument about a university?s right to define its own mission and purpose, and to construct a faculty that advances that mission. This entails an obligation to ?truth in advertising? by a university. If an institution claims to believe in the marketplace of ideas, then it has to deliver. Of course, if an institution openly admits to a desire to uphold a particular ideology, that?s alright too?so long as it honestly reveals this purpose to donors and potential students. Again and again, we are confronted with conflicts between student complaints about professorial bias, and faculty claims of ?McCarthyite? threats to their freedom. The FIRE statement provides a road map for doing justice to both sides of this conflict. FIRE is nothing if not a civil rights organization. In fact, FIRE is often allied with the ACLU. It took this open clash between the NYCLU and FIRE to draw out critically important principles that can guide those of us who want to respect professorial freedom, while also doing something about the terrible academic bias that is killing the marketplace of ideas on campus. After all, the very purpose of academic freedom is to foster the marketplace of ideas. Something has got to be wrong when protecting academic freedom means killing the marketplace of ideas. On this difficult issue, FIRE lights the way.
Posted at 10:04 AM

58

On a topic vroom broached above, here is an interesting story concering the interaction of hostile environment regulations and free speech:

http://volokh.com/archives/archive_2005_02_07.shtml#1107888968

Hostile Environment Harassment Rules and Free Speech:

Another example ( http://www.firstamendmentcenter.org/news.aspx?id=14797 ) of the conflict between the two ( http://www1.law.ucla.edu/~volokh/harass ) (and not the first instance of veteran status harassment claims being brought as a means to restrict speech ( http://www1.law.ucla.edu/~volokh/harass/breadth.htm#T34 )):

[i]Political bumper stickers and articles posted on a professor's office door are raising questions about free speech and harassment at Keene State College.

Shane Calchera, a student and military veteran, accused associate history professor David Stowell of harassment, saying the anti-war, anti-Bush administration statements on his office door created a learning environment that is hostile to veterans.

The college cleared Stowell of the charge . . . but the professor said that the investigation itself was an attack on his free-speech rights.

"I was investigated because of my political views because someone objected to them, and that's frightening," Stowell said. "Everyone on campus should be concerned."

"Regime change begins at home," "Stop the war," and "How many Iraqi children did we kill today?" read some of the 15 items on his door. . . .

Calchera said he didn't realize he had filed a formal complaint. He said he simply wanted his concern addressed: that state property was being used to create what he felt was an environment hostile to military veterans.

The school's harassment policy defines "veterans status" as a protected group.

He said he wouldn't have a problem with the postings if they were on Stowell's own property, but he objects to them being in a place he is forced to go as a student ? a professor's office door. . . .[/i]

Professor Stowell’s speech of course shouldn’t be censored ? but neither should postings by professors or students that offend people based on race, religion, sex, and the like.

Incidentally, the Keene harassment policy ( Discrimination and Discriminatory Harassment · Policies & Procedures · Administration ) prohibits (among other things) “jokes” and “remarks made in the person’s presence” that “creat[e] a hostile or offensive working or academic environment” based on “race, color, religion, sex, age, national origin, sexual orientation, marital status, veteran’s status or disability.” Pretty clearly unconstitutional as applied to speech (except speech that falls within exceptions such as threats).

The college was probably right in concluding that these posters weren’t enough to violate the policy, since they probably weren’t severe or pervasive enough to create an offensive environment, and in any event they need not be especially offensive to veterans because they are veterans. But even if the speech had been more common and explicitly anti-veteran, the way to deal with wrongfully offensive environments is for the school to speak up in condemnation of the rude and in defense of the offended, not for it to forcibly suppress such speech. (The matter may be different as to direct speech by professors to particular students, especially in class – a complex question – but posted materials on people’s offices should be protected even if they are offensive to some passersby.)

59

This has allowed doctors to reccommend marijuana to patients. Before, they were barred from mentioning it, but it was argued against based on 1st Amendment rights.

Cincinnati had KKK issues in the past. In Fountain Square, citizens could place holiday stands (i.e. trees, menorahs, etc.) for Christmas/Channaukah. The KKK also would put up a cross. It would invariably be destroyed or defaced. The people who did it would then be charged with vandalism, etc. The KKK would put a new one up, and the cycle would continue all winter. So the city tried to say the KKK couldn’t put up their cross, they argued against it and won. So the city then banned all holiday displays from Fountain Square. Pain in the ass.

As for the Constitution and public schools (high schools). How is it the schools can enact random locker searches without cause or suspicion? Also, an underground student paper was suppressed several times and the publishers punished. It contained critiques of several teachers (it did not mention them by name, but one could tell merely by description), but I don’t know if anything could be considered slanderous. The school also banned hair coloring or “bizarre” makeup, visible piercings or tattoos. Any shirt with a band or band name on it were prohibited as well. How are these allowed? I figured you could explain BB. As an aside, I got in trouble for having a pocket watch once. They said I could possibly use it as a weapon. I decided they could eat my asshole and kept wearing it anyway. Why would I beat someone with an $80 pocket watch? Especially when I could just use my geometry compass (required, BTW) which had a three-inch, very sharp spike to stab someone. Crazy.