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Watchdog group puts colleges on notice over First Amendment

Published: Thursday, July 24 2014 11:05 a.m. MDT

Updated: Saturday, Aug. 2 2014 6:52 p.m. MDT

Lecture

Design Pics, Getty Images/Design Pics RF

Last September, a Modesto Junior College student was stopped by a campus police officer for circulating copies of the U.S. Constitution on campus without a permit.

“You need permission from the student development office,” the officer told him in the Sept. 17 videotaped encounter.

The action then shifted to an administrative office where a woman offered to help him schedule time in the the “free speech zone” — a 25 square-foot piece of concrete on a corner of campus set 30 yards off the nearest walkway. The zone needed to be scheduled days or weeks in advance, she said.

The conflict in Modesto is just one pixel in a nationwide picture as public colleges and universities around the country struggle to balance conflicting demands. On one side, many students and faculty want the campus to be a safe space, free from insults and discord. On the other, is the argument that a public campus is not a private club but more like a city street where robust debate and even insulting speech are strictly protected.

"I think there is a lack of understanding on college campuses about what the First Amendment requires,” said Robert Corn-Revere, a Washington, D.C.-based First Amendment expert and a partner at Davis Wright Tremaine, one of the nation’s most prominent law firms.

Estimates of significant restrictions on campus speech vary, but the Foundation for Individual Rights in Education currently puts 58 percent of the 400 campuses they survey in “red light” status, meaning they have policies the foundation says restrict free speech in a way that's unconstitutional.

Speech restrictions come in a wide assortment of flavors. Recently, at Chicago State University, an anti-bullying policy was used to suppress a faculty blog. At Iowa State a student was told not to wear a T-shirt with a marijuana leaf. At Ohio University, a student got in trouble for wearing a T-shirt with an off-color pun.

Corn-Revere has been working with FIRE, which sued Modesto Junior College last fall over the incident and the policies that drove it. In February of this year, the school settled, paying $50,000 in legal fees and damages and dropping all "speech zone" restrictions.

At least one observer was not surprised at the outcome: “FIRE picks winners, and they are always legally precise on First Amendment issues,” said Brett Sokolow, President & CEO of the NCHERM Group, a law firm that works with over 50 colleges and universities to craft codes and policies.

But FIRE grew tired of playing Whac-a-Mole. The group announced last month that lawsuits will now be their first resort, to be filed against public colleges in each federal judicial circuit. After each victory or settlement, FIRE will sue another school in the same circuit.

To launch the new initiative, FIRE filed four lawsuits last week by targeting colleges in California, Iowa, Hawaii and Illinois. Davis, Wright, Tremaine will play key roles in this offensive, and the schools they target can expect, Corn-Revere said, to be paying legal fees and damages.

The very week that FIRE made its announcement, a student group at Boise State University in Idaho was forced to pay a special “security fee” for bringing a pro-gun rights speaker to campus. FIRE promptly notified the school that if the fee were not refunded it would file suit.

Avoiding offense

The rise of speech restrictions on campus appears to be closely tied to greater diversity on campus, blended with an impulse to create a safe environment where historic offenses and degradations are curbed. The urge to protect against offense thus runs head-on against the constitutional mandate not to regulate speech.

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