FC: FIRE sues Pennsylvania university over speech code

[Declan McCullagh <declan () well com>]

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" <thor () thefire org>
To: Declan McCullagh <declan () well com>
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; ack () thefire org

Greg Lukianoff, Legal Director, FIRE: 215-717-3473; greg () thefire org

David A. French, Attorney: 859-231-8500; daf () gdm com

William Adair Bonner, Attorney: 610-566-2703; bonneresq () aol com

---

Subject: FW: Shippensburg University statement
Date: Fri, 25 Apr 2003 00:14:12 -0400
From: "Harvey Silverglate" <has () thefire org org>
To: <declan () well com>


Shippensburg's form response.




-----Original Message-----
From: Peter M. Gigliotti [mailto:pmgigl () ship edu]
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 pmgigl () ship edu
Voice: 717-477-1202
Fax: 717-477-4079




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