FIRE’s Mounting Lawsuit Attacks Bringing Free Speech Back to College Campuses

September 24, 2014 • Commentary
This article appeared on Cato​.org on September 24, 2014.

In what may become the most compelling free‐​speech campaign in our educational history, FIRE (Foundation For Individual Rights in Education) has embarked on a lawsuit campaign to restore and guarantee the existence of free speech on our college campuses.

Speaking before the National Press Club in Washington on July 1, Greg Lukianoff, President of FIRE, first focused on speech codes that ban from college campuses such offensive speech as “inconsiderate jokes” and “inappropriately directed laughter” and — believe it or not — passing around copies of the Constitution. Yes, our Constitution!

These speech codes also confine speech deemed to be inappropriate, he added, to “tiny out‐​of‐​the‐​way ‘free‐​speech zones.’ ”

As I often report, FIRE is the only national organization to expose and battle these codes in the courts and the media, but, as Lukianoff grimly notes:

“Even though speech codes have been successfully challenged in more than two dozen lawsuits over the years … nearly three‐​fifths of public universities still maintain speech codes that are unambiguously unconstitutional.”

Remember the First Amendment?

Accordingly, as FIRE declares: “FIRE’s new Stand Up For Free Speech Project is a national effort to eliminate unconstitutional speech codes through targeted First Amendment lawsuits.

“By imposing a real cost for violating First Amendment rights, the Stand Up For Free Speech Litigation Project intends to reset the incentives that currently push colleges towards censoring student and faculty speech,” Lukianoff continued.

Dig this, college presidents and other administrators:

“Lawsuits will be filed against colleges maintaining unconstitutional speech codes in each federal circuit. After each victory by ruling or settlement, FIRE will target another school in the same circuit — sending a message that unless public colleges obey the law, they will be sued.

And, as Lukianoff told the National Press Club in Washington, FIRE is conducting “this massive litigation” with the first‐​rate allies of the law firm of Davis Wright Tremaine, and attorneys Bob Corn‐​Revere, Ronald London, and Lisa Zycherman. “Our goal is nothing less than ending the generation‐​long scandal of college speech codes, once and for all.”

I hope that around the country, teachers in public schools and colleges inform students of this campaign — which I call “James Madison Instructs College Presidents on Why We Are Americans” — so students can begin to join this Declaration of Learning Independence in their own schools.

Also, the media, in all its manifestations, need to awaken to this crucial story. A good place to start for their readers, print and digital, is this revelation in Greg Lukianoff’s National Press Club appearance:

“We quietly began this project in the fall of 2013, with a lawsuit at Modesto Junior College in California, the college that told a student he could not hand out copies of the U.S. Constitution on Constitution Day.

“Following that astonishing example, we actually found another case, at the University of Hawaii in Hilo, in which two students were again told that they could not approach students to hand out Constitutions.

“The Modesto Junior College lawsuit settled for $50,000. The Hilo case is ongoing.”

What did the local media say about these college presidents and administrators? Any comments or actions from the parents of the students there?

On the very morning of that speech by Lukianoff, FIRE has filed such lawsuits against Ohio University, Iowa State University and Citrus College in California.

Coming back to colleges censoring students’ distribution of the Constitution to make a free‐​speech point, objecting colleges do not necessarily ban this identification of American identity. Instead, they restrict this inflammatory document to tiny, remote “free‐​speech zones” on campus.

How do they justify this flagrantly un‐​American miseducation of their students?

This is what FIRE’s Greg Lukianoff tells me: “They believe that pretty much all political speech requires advance approval by administrators and can usually be banned to tiny ‘free‐​speech zones.’ ”

Or just forbidden. “They are dead wrong, of course,” Lukianoff continues, “but they seem to believe that the Supreme Court’s allowance for ‘reasonable time, place and manner restrictions’ allows them to get away with the most absurd abuses of power.”

I know that students and some faculty members bring FIRE into such cases, but where are organizations that represent or report on college faculty? And where are free‐​speech demonstrations by faculty on college campuses?

Only FIRE stays on top of this desecration of the First Amendment. And there has indeed been progress, but now, FIRE declares: “In launching this project, FIRE is trying to produce a dramatic shift in the momentum on campus. The issue will be debated, not just in the courts, but in the minds and homes of many Americans.

“We’ve demonstrated that a single force can stand up to the culture of censorship on campus.”

How many of you are eager to join and help expand that single force so that the First Amendment will live again on the college campuses of America?

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