Free Speech

"Statement on Campus Censorship During Nationwide Protests"

From the Foundation for Individual Rights in Education.

|The Volokh Conspiracy |

Like our fellow Americans, we at FIRE have been gripped by the aftermath of George Floyd's killing in Minneapolis and the subsequent protests and disturbances in our cities. Those engaged in peaceful protest are exercising one of our nation's bedrock civil liberties, with people around the country gathering to protest Floyd's killing and discuss police brutality, racial inequality, and other important issues.

America's colleges are playing host to these same discussions. As a nonpartisan civil liberties organization committed to defending the free speech rights of college students and faculty members, FIRE is here to hold universities accountable to their moral and constitutional obligations, which in times of crisis are at their most, not least, important. Yet during this volatile time, FIRE has already seen a troubling number of institutions abandon these obligations, choosing to investigate and punish controversial speech.

Public universities are government agencies, legally required to uphold the First Amendment rights of students and faculty. While private institutions are usually not similarly bound by law, the vast majority of them promise free expression to students and faculty, and are therefore bound morally and contractually to honor those promises. These guarantees mean nothing, nor will they long endure or be respected, if they protect only those whose opinions happen to be in favor on a particular campus.

George Floyd's death and the subsequent reaction has provoked a wide variety of responses in college communities, including some that many find deeply offensive or that involve the use of racial slurs. But while the level of passion with which these issues have been argued in recent days may have changed, the underlying First Amendment principles have not. The overwhelming majority of such expression, whether it supports or criticizes peaceful protests, police tactics, or violent disturbances, is protected — either by the First Amendment, by universities' own promises of free expression, or both. FIRE will continue to defend speakers' right to exercise their expressive rights regardless of viewpoint. Universities committed to free expression must do so as well.

While college restrictions on speech appear thus far to be broadly aimed at silencing racially offensive or insensitive expression online, views falling on all sides of the current national debate, in a wide variety of situations, have been impacted. Temple University has flatly said it will punish "[s]tudents who share messages of hate." The University of DelawareClemson UniversityValdosta State University, and Framingham State University have all announced (in some cases multiple) investigations into racially offensive student social media posts. Northwestern University and the University of Alabama at Birmingham are facing calls to punish or fire professors for their seeming support of rioting or property damage. This list is hardly exhaustive.

Already this week, FIRE has written to the Ohio State University condemning the Columbus Division of Police's use of pepper spray on student journalists covering protests adjoining campus, and to Weber State University in Utah for placing a tenured professor on leave over tweets endorsing violence against protestors and a journalist. The rights of students and faculty members to express their opinions regardless of viewpoint must continue to be preserved, and we call on others to join us in holding colleges and universities to account when they fail in their responsibility to do so.

During the political and social upheaval of the late 1960s and early '70s, the Supreme Court firmly protected students' First Amendment rights. In Healy v. James, the court noted the "climate of unrest" that "prevailed on many college campuses in this country," including "widespread civil disobedience" and "the seizure of buildings, vandalism, and arson," leading some colleges to "shut down altogether, while at others files were looted and manuscripts destroyed." Notwithstanding the "acknowledged need for order," the Supreme Court explained that the First Amendment applied with no "less force on college campuses than in the community at large." That obligation continues today.

Even amidst the unprecedented destruction of World War II, when the West Virginia State Board of Education mandated that schoolchildren salute the American flag in an effort to encourage patriotism amidst the war effort, the Supreme Court struck it down. Why? Justice Robert H. Jackson explained on behalf of the court in the landmark decision of West Virginia State Board of Education v. Barnette. His words remain as relevant to our response to today's crises as they were to that of the time:

[F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order… 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.

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  1. Can someone point me to FIRE’s coverage of Jerry Falwell’s most recent censorship spree at Liberty University?

    (Or do right-wing organizations provide free passes to certain educational institutions, revealing a partisan and paltry nature?)

    1. FIRE asks private universities to honor their published policies, the issue being when they don’t. Now if you can articulate how this purported censorship spree violated a published university policy or statement of values, I suggest you send copies of both to fire@thefire.org

    2. The good Reverend got owned.

      1. He has no substance to own.

    3. You always bring this up and ignore the same thing every time. FIRE is about the 1A and avoiding censorship. A private university that promises to censor, is not subject to the 1A or avoiding censorship. Private entities must be allowed to censor to preserve their own association and speech rights.

      Nonetheless, FIRE has gone after Liberty in the past. You know this because people have told you about it.

      1. “You always bring this up and ignore the same thing every time.”

        One might say that Arthur clings to the idea that FIRE gives right wing schools free passes.

        1. The evil isn’t private people or groups censoring. It’s government-mandated censoring.

          Indeed, the bulkhead undergirding his temerity on clingers relies on private individuals playing a game of social ostracism of individuals burbling disfavored speech. He likes the right that private citizens and organizations play in this free speech way, so why it bothers him with private universities is puzzling.

    4. “(Or do right-wing organizations provide free passes to certain educational institutions, revealing a partisan and paltry nature?)”

      Well, let’s look at their 10 worst universities for free speech.

      Yup. Liberty’s there.

  2. Funny you should mention them, since they are FIRE’s poster child of the difference between universities that claim they support freedom of speech versus those that explicitly do not. https://www.thefire.org/liberty-university-free-speech-and-the-private-university/

    1. Interesting post. I bet the good rev didn’t look at it.

      1. I was looking for FIRE’s expression of outrage with respect to Liberty’s recent aggressive censorship. There is a reason no one has pointed toward it yet.

        Continue with the cherry-picked ankle-nipping at your betters, FIRE and Conspiracy fans.

        1. Since you haven’t read the linked-to article, I will read it back to you.

          “Based on [Liberty University’s] clearly enunciated policies and the contract, time and time again I have used Liberty University as an example of a university that no one could attend not knowing that they were giving up an extraordinary number of rights. It is not plausible to think that anyone could read the contract that Liberty University requires applicants to sign and say “Gosh, I had no idea the university Jerry Falwell founded was so restrictive!”

          “It is Liberty University’s right to form a community around its stated beliefs and values—even if those values do not include free speech. Likewise, students have the right to agree not to engage in certain behaviors or express certain opinions in order to attend this very restrictive religious college. That is how freedom of association works—indeed, that is how freedom of association should work.”

  3. The issue I don’t understand is the “media” exemption to curfews and such.

    It was explained to me that the journalist is using the First Amendment rights that *everyone* possesses — so how can the government discriminate between citizen-journalists and licensed-journalists?

    On the other hand, do not forget that Mumia Abu-Jamal was a “licensed journalist” when he murdered a police officer.

    1. Excuse me, what is a “licensed journalist”? Never heard of a journalist needing a license. And I am not sure a 39 year old murder case is relevant today. If it is then you know why people are protesting.

      1. State-issued press credentials are required.

        1. State-issued press credentials? Are you talking TASS or Pravda or some other Russian news agency?

        2. Given many live stream or take videos to post later, the line between credentialed journalist and hoi polloi citizen is very transparent now.

  4. <>

    Footnote: hate of Trump excepted.

  5. Temple University has flatly said it will punish “[s]tudents who share messages of hate.” Footnote: Hate of Trump excepted.

    1. If accurate, that indicates just another test FIRE will flunk.

    2. One wonders if Liberty has been consistent about this policy. If, say, a student expresses hatred of abortion doctors. Or of Nancy Pelosi.

      (Note: I do *not* know the actual answer to this…for all I know, Liberty has a perfect record of doling out identical punishment for saying/writing, “I hate Trump’ vs. I hate abortionists’ vs. I hate Satan’ vs. I hate Muslims’ vs. I hate Hillary Clinton.” I suspect that Liberty is not consistent, but I’ll be perfectly happy if my guess turns out to be incorrect.)

  6. Where is the outrage anent the following:

    (1) the cold-blooded murder of an octogenarian white couple, Paul and Lidia Marino, by negro Sheldon Francis while the Marinos were visiting the grave of their son in early May;

    (2) the cold-blooded murder of 59 year-old Leslie Baker, who was white, while she was parked in her driveway in suburban Dallas, by a 16 year old negro youth. This on the same day as George Floyd was murdered;

    (3) the cold-blooded murder of 35 year-old Kevin Humes, a white man, of Georgia, by a 15 year old negro youth, on May 18;

    (4) the cold-blooded murder of Cody Holte, a Grand Forks, SD police officer, by Salamah Pendleton, a negro, brandishing an AK-47, on May 27, while Holte was assisting other officers serving an eviction notice;

    (5) the brutal, sub-human, murder of white, 80 year-old Rosalie Cook, by negro Randy Lewis, in Houston. Lewis, who has been a career criminal and a model exemplar of black social dysfunction, stabbed the 80 year old grandmother.

    How many riots ensued the foregoing barbaric murders?

    Did any of the aforementioned white lives matter?

    Do we not understand that blacks are just far more likely to commit crimes of inter-racial violence than whites?

    1. Riots are about the abuse of governmental power. But you knew that and just wanted to posts some white victimhood.

      Also…negro? Where are you posting from, 1970?

      1. Riots are about mob violence, the desecration of private property, and the initiation of aggression. But you knew that and just wanted to post some racist grievance mongering and signal your genuflection to the poor, saintly negro.

        What is wrong with the use of the word negro? Does it offend you?

        1. Conspicuously absent from Sarcastro’s post was an answer to my questions.

        2. Very well, these PROTESTS are about the abuse of government power in killing black people. That’s what makes them different from what your dumb post listed.

          Negro doesn’t offend me, just makes me draw some conclusions about you.

      2. Also…negro? Where are you posting from, 1970?

        Actually, one assumes he’s posting from a year or more in the future, when the trials have taken place and the alleged killers convicted.

        I guess the racial terminology just circled back around again.

        1. Does not your point apply to the alleged murderer of George Floyd, who, by the way, is a felon who mercilessly beat a woman in connection with a home invasion?

          Note, once again, no riots ensued the murders of the aforementioned white people.

          Stop with the special pleading for Africans.

          1. This ‘he was no angel’ BS doesn’t fly anymore with the public at large. Sorry.

            Africans
            Fuck you.

    2. The outrage is the same as the outrage for crimes committed by other common criminals. Bluntly put, those crimes are tragic for the families involved but they are statistically routine. Crimes committed by those with a special duty to protect the rest of us, however, are deserving of outrage.

      If you want to make a valid comparison, find examples of white victims of police abuse.

      1. And you don’t even have to look far. The “liberal” mainstream media spent about 35 minutes straight this morning, showing two cops (part of a long line of other law enforcement) violently shoving backwards a 75-year-old WHITE man, where the victim fell backwards to the ground, where his head smashed into the ground, where blood was pooling by his head, and where none of the cops stopped to aid him. (It does appear in the video that one cop called this in, and–hopefully–this call included a request for medical care.)

  7. Keep flailing, clingers.

    It’s stuff like this that costs right-wingers the respect of mainstream academia.

    1. Are you afraid of the truth, Rev?

      We know that mainstream academia is afraid of the truth.

      1. Keep whining about Harvard, Yale, Berkeley, Princeton, Columbia, and Williams.

        Continue to prefer Hillsdale, Grove City, Liberty, Regent, Wheaton, and Ouachita Baptist.

        The consequences have been and will be predictable.

      2. We know that mainstream academia is afraid of the truth.

        Spoken like every fringe element everywhere, from people with a new theory of gravity to white supremacists to Nature’s 4 Day Timecube.

  8. I remember when the ACLU would also put out statements like this. Looked on their website and could find nothing…

  9. I have suggested that the Compelling Interest doctrine gives a state leeway on at least some First Amendment issues to address a riot – in particular, the police don’t have to give religious worshipers the sane leniencies that they give rioters.

    But that said, this only applies to dealing with an actual riot. States can’t proactively restrain speech because they fear the possibility of a future riot. The compelling interest doctrine indeed applies to some preventative measures. Vaccines are an example. But a state’s ability to apply prior restraints on speech to address future issues is more limited.

    1. The Supreme Court has used terms like “imminent lawless action.” (Brandenberg v. Ohio) And this was limited to things like threats and incitement to violence.

  10. I’ve been experimenting with the Volokh “Hate Speech is Protected Speech” video and the results are interesting. Some social media platforms deem it misinformation while others do not: many purportedly informed individuals (including academics, journalists, and elected representatives) either consider the video obsolete, misleading, “dangerous,” or “wrong-headed.” Many of the individuals are reacting to fear that police will not intervene to prevent violence — which is a reasonable fear, given statements by many government officials: when your business is burned because you expressed dislike of a [white] governor, for example, it’s reasonable to stop uttering your dislike. I’m intrigued by the “wrong-headed” response as it brings to mind events of the late 60s and early 70s, when ostensibly gentle “whitecapping” efforts were used to interfere with speech rights (and contracting rights).

    1. Back in the late ’60’s, there were enough people who had fought a man named Hitler a quarter century earlier, and hence had a healthy cynicism of governmental control of speech.

    2. If you cause them any difficulties, they can always call Processor Volokh, who will gladly defend their right as private parties to censor his video on their platforms.

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