FIRE Challenges College Removal of Posters Criticizing "Leftist Ideas," Restriction of Anti-Abortion Flyers

The Clovis Community College policy bans "posters with inappropriate or offense [sic] language or themes."

From the Foundation for Individual Rights and Expression's press release, which links to relevant documents (including the Complaint):

Three conservative college students wanted to criticize authoritarianism. But when administrators deemed their opinions inappropriate and offensive, the students found themselves facing an oppressive regime right on campus.

Today, students from a campus chapter of Young Americans for Freedom, represented by the Foundation for Individual Rights and Expression, sued California's Clovis Community College, delivering a simple message: Public colleges cannot ban students' flyers because administrators subjectively deem their political viewpoints inappropriate or offensive….

In November 2021, Alejandro and fellow club members Daniel Flores and Juliette Colunga received permission from administrators to hang three flyers on bulletin boards inside Clovis' academic buildings. The flyers advocated for freedom and listed the death tolls of communist regimes.

Emails obtained via a public records request reveal that soon after the flyers went up, a Clovis administrator wrote that he would "gladly" take the flyers down, following complaints about their content. The administrator also wrote that approving the flyers in the first place may have been a "mistake," and that Clovis instead should have censored them under a policy that states: "Posters with inappropriate or offense [sic] language or themes are not permitted and will not be approved."

On Nov. 12, Clovis President Lori Bennett personally ordered the flyers removed. After doing so, she searched for a reason to justify the viewpoint discrimination, inventing a brand new rule requiring flyers to double as club announcements.

"If you need a reason, you can let them know that [we] agreed they aren't club announcements," Bennett wrote. Clovis does not have a policy on the books that requires flyers to be club announcements. But with this excuse in hand, Clovis employees told student workers to remove the flyers.

Administrators later used that pretextual justification to stop the students from hanging a new set of five pro-life flyers — which the students submitted for approval in December — on the bulletin boards inside heavily trafficked campus buildings. Instead, administrators banished the flyers to a rotting "free speech kiosk" in a desolate part of campus. [The Complaint alleges that "Other students and clubs regularly post flyers with political and social commentary or themes on the indoor  bulletin boards of the Academic Centers. Defendants do not require those students or groups to take their flyers down and only post them to the Free Speech Kiosk." -EV] …

Public colleges like Clovis are bound by the First Amendment, and it is unconstitutional to treat student groups differently based on their viewpoints. Clovis' vague policy banning "inappropriate" or "offense [sic]" themes — terms that could apply to just about anything — puts protected expression in jeopardy by allowing administrators to arbitrarily decide which opinions are inappropriate or offensive and which deserve to be heard.

Note: I have consulted for FIRE on a different matter, but I wasn't at all involved with this controversy, and wasn't asked to write about it.

Comments

[Longtobefree]

How shocking!
Fascists do fascism. In California of all places.

[DaivdBehar]

Hey lawyer dumbasses. Stop wasting time and money. mandamus the IRS to de-exempt these treason indoctrination camps. I may it myself after analyzing standing. Do it once successfully, all woke evaporates across the country.

[DaivdBehar]

To Jim Farley, CEO of Ford. Hey, you woke dumbass, is this what you are saying? The energy for a trip in a 4000 lbs. car of 100 miles at 65 mph is coming from my household electrical outlet? Sir, this is a Wendy's.

[Ed Grinberg]

Can't wait to see the comments by "liberals" / "progressives" about how it's the conservative students who're the real fascists. Why, they "advocated for freedom"! That's a sure sign of a fascist!

[Rev. Arthur L. Kirkland]

For this discussion, let’s stick to the point that the conservative students are the fledgling, drawling bigots.

Happy now, clinger?

[Jerry B.]

Clinger!! Drink!!!

[Truthfulness]

Case in point. Thanks, Mr. Kirtland.

[JD85]

Kennedy: the decision that no one on volokh wants to write about!

[Sigivald]

https://www.scotusblog.com/case-files/cases/kennedy-v-bremerton-school-district-2/

Because "the Supreme Court agreed 6-3 on the obviously correct thing" is boring?

[JD85]

Aside from the wrong facts being used in the majority opinion, and the decision overturning years of precedent, sure.

Maybe you don't have any memories of being a religious minority at a school. As someone who does I can tell you, for sure, there is pressure to attend those at school prayer gatherings. And that the kids who don't are constantly asked why and often ostracized or otherwise treated differently, particularly by the teacher (coach in this case).

[Truthfulness]

No one was forced to join the prayer. If you have such a problem with the practice, you can withdraw and go to another school. School choice, baby!

[Jimmy the Dane]

There is still much buzz about the feature length article recently talking about why young adults don't want to attend college. The reasoning is abundantly clear to anyone who actually has a thinking brain. Even if your intention was to become indoctrinated as a left wing ideologue you can do so by just watching CNN all day for about six months. Doesn't require hundreds of thousands of dollars and years of your life.

[Sigivald]

Gonna say that going to a Community College at resident rates doesn't cost hundreds of thousands of dollars, even in California.

[DaivdBehar]

Same goes for high school. College and high school are rent seeking lawyer scams. They not only waste massive tax resources, but they waste the most highly effective years of life. They keep top performers out of the job market to protect the jobs of their less competitive, less effective tax sucking parasite clients.

[Rev. Arthur L. Kirkland]

Education-disdaining Republicans (who can't understand why they and their communities are economically inadequate) are among my favorite culture war casualties.

[Rev. Arthur L. Kirkland]

In particular, I am grateful my children and grandchildren will get to compete economically with half-educated clingers.

[DaivdBehar]

At 30, the dude you deride will have brought in $750000, with no enterprise, just being a skilled employee. Meanwhile your spawn will have brought in $800000 and have $300000 in debt for their scam education. Dude is $250000 ahead of your spawn. If the dude you deride decides to start a business, there is no upper limit to his income. What is the value of a contract to electrify a skyscraper?

[Jimmy the Dane]

Calling what an American college delivers in terms of a service based product "education" is laughable. If one's goal is to acquire useful knowledge, a library card and an internet connection are far cheaper and more valuable than access to even the local women's studies department.

[David Nieporent]

If one's goal is to acquire useful knowledge, a library card and an internet connection are far cheaper and more valuable

Then what's your excuse for knowing so little?

[Truthfulness]

Jimmy is a well off person, David. College is not needed for that.

[bevis the lumberjack]

So at American colleges these days criticizing communism is hate speech.

So let’s pass hate speech laws so that zealots like these administrators can put us in prison for political speech they disagree with.

[DaivdBehar]

All PC, all woke is case. There is no legal recourse for the treason ongoing in these institutions. They come from the lawyer profession and are totally protected.

That leaves only one recourse, in accordance with formal logic.

[Jimmy the Dane]

"So let’s pass hate speech laws so that zealots like these administrators can put us in prison for political speech they disagree with."

What do you think the DOJ is doing with all the political prosecutions lately? I know the left thinks they are funny because of the protesters involved and Trump, but soon it is going to cease to be funny to even them.

[Truthfulness]

The horrifying thing about that is that Arthur above would totally support that proposal.

[BravoCharlieDelta]

It makes perfect sense.

If you can convince a population that a man can become a woman, you can convince them that speech is violence.

If speech is violence, how can they not control it?

[DaivdBehar]

They do not convince. They impose denial of reality by force.

[Ed Grinberg]

How many fingers am I holding up?

[Drewski]

Of course FIRE is right, but the language in the press release is ridiculously over the top. "Oppressive regime?" Really? The person who wrote this is not a serious person. A normal, mentally healthy person who thinks this is wrong would not get worked up into a froth like that.

Also these students might do well to spend less time on political activism and more time attending classes. Several of those flyers have pretty bad grammatical errors.

[ReaderY]

I agree both the press release and this post could have been more factual. Using the sort of over-the-top screaming rhetoric authoritarian regimes and propagandists generally are known for hardly induces credibility.

[David Nieporent]

I'm pretty sure it's "tongue in cheek," not "worked up into a froth."

And, how completely f-ing stupid are these administrators? I realize that most people have no legal training, but it's not like this is a close call that takes years of law school and hours of research on Westlaw to figure out. It's so blatant that there might as well have been a big neon sign saying, "Um, you can't do that!"

[Drewski]

No, give credit where it's due. The administrators (plural) recognized there were free speech implications and ran it up the flagpole (see the brief, linked email exchange). The college President made the decision.

It's not clear if she ran it by counsel first, but it's worth noting that her doctorate is in educational leadership and policy - a degree that requires study of legal matters related to education. She absolutely knew, or should have known, that her decision implicated the First Amendment.

If I were to guess, I'd guess she's the performatively overloaded type that also never admits mistakes, which in modern society is the path to success. Probably she was unnecessarily multitasking, made a snap judgment without thinking much, and doubled down (because you don't become a college president by admitting error). I've seen this sort of thing happen fairly often in large organizations that value the appearance of hard work over competent decision making.

[David Nieporent]

In the emails I looked at, one administrator recognized a potential 1A issue but thought it was a "gray area." (It isn't.) The others solely considered whether their decision was justified by their policy. (Which said nothing more than that they could ban stuff that was inappropriate or offensive, which no reasonable person could think complied with the 1A.) The president didn't even bother to do that; she invented a fake justification that wasn't even part of the policy: that it wasn't a club announcement.

[Rev. Arthur L. Kirkland]

It sounds like this administrator mistook a public school for a censorship- and dogma-driven school controlled by conservatives.

(Are the students described as 'opposing authoritarianism' the same students who advocated statist womb management, criminal forced-birth statutes, and big-government micromanagement of ladyparts clinics?)

[DaivdBehar]

Sir, this is a Wendy's.

[ReaderY]

Step back, take a deep breath, think about what you just said. Is it really all OK as long as it’s for the right cause?

[Krayt]

The Rev should be happy. He regularly complains how VC overlooks private institutions that censor. In response, Volokh (and Fire) now regularly address such institutions, who usually are violating their own boilerplate giving lip service to free speech, free inquiry, and the like.

He should be happy for driving this forward!

[Ed Grinberg]

Is it really all OK as long as it’s for the right cause?

To these people ("liberals" / "progressives"), "the right cause" justifies pretty much anything.

[ReaderY]

Why not talk to “these people” occassionally and find out what they actually think?

[Michael P]

That's what we do. These people named one of their own activist groups "By Any Means Necessary".

[Ed Grinberg]

“They believe they’re morally superior to America and therefore any means [are] necessary or justifiable for their morally superior ends.”
source: https://www.foxnews.com/media/fbi-trump-raid-national-security-state-believes-morally-superior-victor-davis-hanson

[Rev. Arthur L. Kirkland]

You appear to misunderstand what I wrote.

I wrote that the administrator's conduct -- as described by strident partisans, but discounting for the source -- was wrong.

Fledgling right-wing hypocrites have rights, too. (Although the unfaithful and reasoning have fewer rights on campuses controlled by the conservatives who are nipping -- with cause -- at their betters' ankles here.)

[Truthfulness]

You suggested that you weren't happy that the administrators did not target a religious school for their beliefs. Hence, the reply from ReaderY. Do you really believe that's actually okay for the government to censor and persecute religious schools? Do you honestly believe that?

It should be also known that the science points that a human life is created at conception. Religion has nothing to do with that fact. We have laws preventing murder, so why not do the same with those inside a mother's womb? If those measure save lives, that's a good thing!

If a woman willingly has sex and gets pregnant, she and the man must take responsibility. Abortion should only happen under untypical circumstances where there is absolutely no better outcome than killing the baby.

Your pathetic attempt at a rebuttal, with whataboutism, is outright pitiful. Repent of your evil ways.

[ReaderY]

Be sure to ask for attorneys fees.

[SRG]

Ridiculous. The college should have expanded the flyer location and organised a debate.

[EscherEnigma]

Two days ago there was a post that started off with how a ban wasn't a ban because students could get the books elsewhere and share them amongst themselves.

So I have to say, that this one starts off talking about how a school not hosting flyers, flyers that can still be shared elsewhere, including on social media and random telephone poles and gas stations, is a ban.

It's almost like there's some viewpoint discriminations going on here that makes Volokh critical of this "ban", but totally okay with the other "not a ban". You know, like he's totally on-board with Florida's law that totally isn't "don't say gay", and thinks nothing of how it's being cited as teachers are told to hide the photos of their same-sex spouses and pretend they aren't married when talking to students... something their opposite-sex married peers aren't being asked to do.

[Rev. Arthur L. Kirkland]

Prof. Volokh's support for freedom of expression increasingly tends to flutter -- predictably -- with the conservative winds.

These are positions he is entitled to hold and advance, but whose lack of principle (and residence on the wrong side of history and the losing side of the culture war) diminishes respect and influence.

[Truthfulness]

What part of wanting to preserve freedom of expression is "lack of principle"? . How is that "losing the culture war"? Do you not believe in freedom of expression, like, at all?

You are not thinking your posts through.

[Rossami]

Hmmm... Middle and elementary school librarians making curation decisions about what to stock on limited library shelves vs college administrators making decisions about what others will post (at their own expense) on public bulletin boards. Nope, no relevant distinctions there ...

(Do I need to add a sarcasm tag? I'll admit to usually being pretty sarcasm-impaired.)

[EscherEnigma]

Yeah, those aren't relevant differences.

Volokh cheers FIRE here because he likes conservatives yelling at people, and he cheered the school lawyers in the other one becuase he likes gagging gay people. That is the relevant difference. The rest are details, but not deciding factors in whether Volokh plays cheerleader.

Volokh can, of course, prove me wrong. There are plenty of stories about conservatives trying to ban books in libraries right now. There are so many. This is an active conservative effort right now. And he could come against it anytime he wants to. He could talk about the Michigan public library that may shut down next year because it's not homophobic enough. He could talk about Florida schools pulling LGBT books off the shelves because of the "Totally Not Don't Say Gay" law. He could talk about how conservatives are harassing and threatening libraries over LGBT books. He could talk about how these obviously improper, hideous motives don't somehow become legitimate when they scrape off the file numbers and do the paperwork between shouting at the school board.

He could do any of that. He could do all of that.

But instead, he cheered it on.

So yeah, those are differences... but not to Volokh.

[Craig Johnston]

Professor Volokh generally writes about whether a thing is constitutional or not with an occasional article about whether a thing is legal or not and a few other random subjects. What this community college is doing is (likely to be) unconstitutional. What parents or other groups are advocating regarding the books in local libraries is neither unconstitutional nor illegal. Why would he write about it?

[Rev. Arthur L. Kirkland]

Same reason he is regurgitating a multi-part discussion of speech rights in the employment setting? Or wondering about whether government should censor or control editorial decisions of mainstream publishers? Or ignoring censorship and authoritarian conduct from the likes of Ron DeSantis? To be a partisan mouthpiece for current conservative positions. The work of a partisan hack.

[Truthfulness]

Where has DeSantis imposed authoritarianism and censorship? He hasn't. He's only correcting issues that should not have existed in the first place (like Disney's special status that is totally unconstitutional).

[David Nieporent]

Yeah, those aren't relevant differences.

They are crucial differences; your failure to understand that speaks poorly about you, not about Prof. Volokh.

A library has a finite amount of books. Characterizing the decision to not stock a particular one as a "ban" on that book would mean that libraries are "banning" tens of millions of books. That's… stupid.

[shawn_dude]

I've been on this blog since it was on WaPo. I started reading because I was generally interested in the legal discussions happening around LGBT civil rights. Whatever else one might say about Volokh, he's been pretty consistently clear on his favorable position regarding LGBT rights.

[Rev. Arthur L. Kirkland]

He enthusiastically supports, helps, and associates with plenty of bigots. Cruz. Eastman. And at least a few Conspirators. With friends like him, gays need no enemies.

[Truthfulness]

Or maybe, just maybe, Volokh is consistent with libertarian principles. How dare he agree to some of the positions of these supposed "bigots" who in actuality want government to ensure schools don't suppress students for their political views!

[WuzYoungOnceToo]

Yeah, those aren't relevant differences.

They are if you have multiple functioning brain cells.

[WuzYoungOnceToo]

and he cheered the school lawyers in the other one becuase he likes gagging gay people.

Volokh can, of course, prove me wrong.

He has, for many years now. You being too stupid to realize that isn't his fault.

[David Nieporent]

Two days ago there was a post that started off with how a ban wasn't a ban because students could get the books elsewhere and share them amongst themselves.

So I have to say, that this one starts off talking about how a school not hosting flyers, flyers that can still be shared elsewhere, including on social media and random telephone poles and gas stations, is a ban.

Um, I know this is an attempt at a gotcha, but there's not even a little bit of inconsistency here. Telling you that you can't say something is a ban on that speech. Telling you that we're not going to give you that speech, but that you're free to get it yourself, is not a ban on that speech.

[ReaderY]

There’s an obvious difference between a school making decisions about what material it itself will supply and banning students from supplying their own material.

If the bulletin boards involved had been used exclusively for communications by the community college itself, it would have been within its rights to consistently prohibit students from posting their own material.

But here the school has opened up its bulletin boards to public postig, except for flyers whose message it doesn’t happen to like.

[tkamenick]

"You can't do X" = ban
"We won't do X" =/= ban

This really isn't very difficult.

[David Welker]

This move by the community college is obviously unconstitutional. There is no interesting debate about that.

What I do find interesting is the culture of illiberalism that this illustrates. There is a cultural trend on the left of censoring ideas they oppose. I believe that this trend contributes to polarization because people do not discuss their differences of opinion.

As important is the idea of autonomy, in people feeling that they are the ones who decide what they believe and say rather than looking for social approval. Private censorship makes “acceptable ideas” a matter of what is approved by some socialized hierarchy rather than a matter of individual conscience. In doing so, it glorifies social leaders at the expense of ordinary individuals and implies extreme inequality. A person who has to look to others for permission regarding what they can believe or say is not a free person or a complete human being.

That the left has gotten more and more intolerant or “woke” is simply true. And it is unfortunate.

If this cultural trend continues, it may not bode well for the law of free speech either. In the past, the Supreme Court has been much less protective of free speech than it is today.

[Rev. Arthur L. Kirkland]

What is your opinion concerning right wing censorship?

[David Welker]

My opinion is that you will never stay on topic. Your constant search for hypocrisy is not all that interesting to me. And it is utterly predictable. If someone criticizes x, you always ask about y. And in my opinion, too soon.

[David Nieporent]

It's not a search for hypocrisy; it's trolling.

[Seamus]

You mean like if a public college tried to suppress leaflets telling how great Communism is? Let me know when you find that happening, and I'll oppose that too.

I thought this was a war we won by the 1970s at the latest. We're now just trying to make sure that the free-speech rights that we won for the Communist Party USA, the Young Socialist Alliance, the Students for a Democratic Society, the Black Panther Party, and the like are made equally available to Young Americans for Freedom and their like.