FC: FIRE sues Pennsylvania university over speech code

From: Declan McCullagh (declanat_private)
Date: Thu Apr 24 2003 - 22:34:59 PDT

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    I ended up staying late after my MIT talk and had dinner with Harvey in 
    Cambridge. Harvey is a longtime subscriber to Politech (since 1994) who 
    co-founded the Foundation for Individual Rights in Education, and in a nod 
    to history, was EFF's first litigation counsel when they were fighting the 
    Steve Jackson Games case. His wife Elsa also happens to be an amazing 
    photographer with one of six 20x24 Polaroid cameras in existence. The 
    output is amazing, and Elsa has also shot with an even larger Polaroid 
    camera that uses 40" x 80" film. Not enlargements, mind you -- this is the 
    size of one sheet of film! See her excellent work here:
    http://elsa.photo.net/
    
    Anyway, Harvey tells me this is one of a series of lawsuits FIRE will be 
    filing to establish the principle that campus speech codes violate the 
    First Amendment at public universities. Eventually FIRE plans to expand 
    this to make breach-of-contract arguments in the case of private 
    universities. This is particularly relevant to Politech because many of the 
    speech code cases nowadays involve websites or off-color mailing 
    list/discussion board posts.
    
    I will be happy to forward a reply from Shippensburg University.
    
    -Declan
    
    ---
    
    Date: Wed, 23 Apr 2003 15:27:36 -0500 (EST)
    From: "Thor L. Halvorssen" <thorat_private>
    To: Declan McCullagh <declanat_private>
    Subject: FIRE Declares War on Speech Codes
    
    FIRE Declares War on Speech Codes: Lawsuit Opens Systematic Assault on 
    Censorship at Public Universities
    
    SHIPPENSBURG, PA -- FIRE Legal Network attorneys David A. French and 
    William Adair Bonner have filed a lawsuit against speech codes at 
    Shippensburg University, a public institution in central 
    Pennsylvania.  "The action at Shippensburg is the first part of a campaign 
    to end the nightmare of campus censorship," said FIRE President Alan 
    Charles Kors.  "Such codes are a moral, educational, and legal scandal in 
    American higher education.  A nation that does not educate in liberty will 
    not long preserve it and will not even know when it is lost."
    
    The lawsuit was filed on April 22, 2003 in the U.S. District Court for the 
    Middle District of Pennsylvania.  It asserts that the plaintiffs -- 
    undergraduate students at the university -- risk punishment up to expulsion 
    for engaging in constitutionally protected expression.  The suit is a 
    "facial challenge" because it asserts that the policies threaten so much 
    protected speech that their very existence is a violation of the First 
    Amendment.  "The University's speech codes...have a chilling effect on 
    Plaintiffs' rights to freely and openly engage in appropriate discussions 
    of their theories, ideas and political and/or religious beliefs," the 
    complaint states.  "The University and [President] Anthony F. Ceddia have 
    violated rights guaranteed to the Plaintiffs -- and to all University 
    students -- by the First and the Fourteenth Amendments."
    
    Shippensburg University's Code of Conduct states that the university 
    defends free speech unless it is "inflammatory, demeaning, or harmful 
    towards others."  The university requires that "the expression of one's 
    beliefs" should not "provoke" or "demean" -- effectively outlawing most 
    forms of passionate expression, moral outrage, robust discussion, dissent, 
    and protest.  Kors noted, "The expression most in need of protection, of 
    course, is precisely 'provocative' dissent from widely held views, even if 
    those provoked see that as 'demeaning.'"
    
    Shippensburg also outlaws "subordination...on the basis of race, color, 
    creed or national origin, communicated through words, attitudes, actions 
    and/or gestures."  Shippensburg also prohibits conduct that "annoys, 
    threatens, or alarms a person or group," giving as examples of sexual 
    harassment "innuendo," "comments, insults," "propositions," "humor/jokes 
    about sex or gender-specific traits," and even "suggestive or insulting 
    sounds, leering, whistling, [and] obscene gestures."  "Most stand-up comics 
    -- whether feminists or male chauvinists -- wouldn't last a day at 
    Shippensburg," Kors noted.
    
    In a flagrant violation of freedom of conscience, the university also 
    mandates official values by requiring students to display a "commitment to 
    racial tolerance, cultural diversity, and social justice...in their 
    attitudes and behaviors" under threat of official punishment.  Shippensburg 
    also quarantines free expression to only two designated areas, leaving the 
    rest of the campus a censorship zone.
    
    Working with public interest law firms and pro bono attorneys in FIRE's 
    Legal Network, FIRE will help organize and coordinate many legal challenges 
    to wrongful restrictions of speech at America's public colleges and 
    universities.  Ultimately, over the next year, FIRE will coordinate 
    challenges to speech codes in each of the twelve federal appellate 
    circuits, establishing precedents that will end the scandal of 
    unconstitutional speech codes on college and university campuses once and 
    for all.
    
    "These challenges will strike a blow for the free marketplace of ideas and 
    against campus indoctrination and institutional thought control," said 
    David A. French.  "The way to transform society is not through mandating 
    certain beliefs, words, and attitudes, but through discussion, debate, and 
    persuasion.  Like many public universities, Shippensburg -- an agent of the 
    state -- seeks to impose its values coercively on students.  With this 
    legal challenge, we are fighting for each student's right to follow the 
    lights of his or her own conscience."
    
    Speech codes are both a moral and legal outrage.  For this reason, FIRE 
    also will challenge speech codes by the light of public exposure.  In May 
    2003, FIRE will launch www.speechcodes.org, an online database of the 
    restrictions on speech at public and private colleges and universities 
    across the country.  With this searchable website, students, parents, 
    faculty, members of the media, donors, and the public will see how 
    routinely colleges and universities betray their obligations to respect 
    freedom of speech.
    
    "Since the late 1980s, there have been several major legal decisions 
    against unconstitutional speech codes in higher education," said FIRE CEO 
    Thor L. Halvorssen.  "FIRE is moving from scattershot approaches to end the 
    scandal of speech codes to a concerted campaign to restore liberty. 
    Ultimately, this unprecedented assault on speech codes, in the courts and 
    in the public arena, will send a clear message: colleges and universities 
    that decide to restrict free speech must face the moral and legal 
    consequences of that decision."
    
    FIRE is a nonprofit educational foundation that unites civil rights and 
    civil liberties leaders, scholars, journalists, and public intellectuals 
    from across the political and ideological spectrum on behalf of individual 
    rights, due process, freedom of expression, academic freedom, and rights of 
    conscience on our campuses of higher education. The Shippensburg speech 
    codes and the lawsuit can be seen at www.thefire.org.
    
    CONTACT:
    Alan Charles Kors, President, FIRE: 215-717-3473; ackat_private
    
    Greg Lukianoff, Legal Director, FIRE: 215-717-3473; gregat_private
    
    David A. French, Attorney: 859-231-8500; dafat_private
    
    William Adair Bonner, Attorney: 610-566-2703; bonneresqat_private
    
    ---
    
    Subject: FW: Shippensburg University statement
    Date: Fri, 25 Apr 2003 00:14:12 -0400
    From: "Harvey Silverglate" <hasat_private>
    To: <declanat_private>
    
    
    Shippensburg's form response.
    
    
    
    
    -----Original Message-----
    From: Peter M. Gigliotti [mailto:pmgiglat_private]
    Sent: Wednesday, April 23, 2003 1:45 PM
    Subject: Shippensburg University statement
    
    Shippensburg University strongly and vigorously defends the right of
    free speech. As an institution of higher education we encourage and
    promote free speech among and between individuals and organizations.
    Through the exercise of this important right our students are able to
    see various aspects of an idea, analyze those ideas and form their own
    opinions on those ideas.
    
    The university is also committed to the principle that this discussion
    be conducted appropriately. We do have expectations that our students
    will conduct themselves in a civil manner that allows them to express
    their opinions without interfering with the rights of others.
    
    Information on the lawsuit has been given to our legal counsel for
    review.
    
    
    
    --
    Dr. Peter M. Gigliotti
    Executive Director for University Communications and Marketing
    Shippensburg University of Pennsylvania pmgiglat_private
    Voice: 717-477-1202
    Fax: 717-477-4079
    
    
    
    
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