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NEW GUIDE TO FREE SPEECH ON CAMPUS P.2

2012 BEST

COLLEGES FOR FREE SPEECH P.3 PURDUE U. CALUMET IN COURT FOR

FREE SPEECH

VIOLATIONS P.7 OHIO COLLEGE

SUED

FOR CENSORSHIP P.8

ANTIBULLYING RULE THREATENS FREE SPEECH AT U. OF DELAWARE P.9

THE 2012 CFN CONFERENCE P.10

LETTER FROM the Director of Development

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hings at FIRE are busy! With the fall semester in full swing and the election season upon us, too many college administrators are busy doing what they do best: squelching expression on campus. For FIRE staff, that means more late nights at the office—and for FIRE donors, that means it’s time for you to renew your support.

ALISHA GLENNON

and resolution of campus rights violations, and generate new avenues for public pressure and administrative reform; • FURTHER update our Guides to Student Rights on Campus, releasing an updated version of our Guide to Due Process and Fair Procedure on Campus; • CREATE, PUBLISH, AND DISTRIBUTE dozens of short films aimed at exposing the state of liberty on campus.

Your past donations provided us with the resources to win 21 public victories benefitting more than 750,000 students just this year alone. Today, I hope you will consider contributing again so that FIRE can ramp up our efforts in 2013. Your donation will allow FIRE to: • DEFEND students and faculty members against abuses of their expressive rights and violations of their right to private conscience; • BUILD coalitions in the legal and policy fields by recruiting new attorneys for our Legal Network, holding more Continuing Legal Education courses, and gathering support for our efforts to combat regulatory and administrative threats on and off campus; • BATTLE harmful speech codes through our Spotlight database, Policy Reform Project, and Speech Code Litigation Project; • PARTNER with the Bill of Rights Institute to develop a high school curriculum that will educate students about coming into their full First Amendment rights as American adults and about the state of freedom of speech on college campuses; • RELEASE a smartphone application that will provide a forum for the reporting, advertising,

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We understand that you need to choose wisely when deciding which organizations have earned your financial support. You need to evaluate who is making a bigger impact in the world and who is most worthy of your investment, whether it be $10 or $1,000. FIRE’s consistent and principled approach to advancing liberty means more cases won, more students defended, more protection for professors’ academic freedom, and more rights for everyone on campus. We are a safe bet. Not only does our reputation speak for itself, but our plans for the future are ambitious and achievable—if only we can earn your support once again. I hope you will choose to invest in FIRE. Your gifts are 100% tax deductible. If you have questions about the different ways you can help FIRE, please feel free to reach out to me at alisha@thefire.org or 215-717-3473. Alisha Glennon

FALL 2012

in action

FIRE ANNOUNCES NEW GUIDE TO FREE SPEECH ON CAMPUS

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campus, the Guide draws from historical, legal, and practical sources to arm its readers with the knowledge needed to promote the freedom, meaningful debate, and openness upon which our society depends for its continuing vitality.”

IRE is proud to announce the second edition of our Guide to Free Speech on Campus, published this July. More than 50 FIRE staff members, supporters, and students gathered in Washington, D.C., to celebrate the book’s release. Published in 2005, the first edition of FIRE’s Guide to Free Speech on Campus has been distributed to more than 138,000 students, faculty members, alumni, administrators, and citizens across the country as a tool to fight censorship on campus. The newly revised second edition of the Guide has been fully updated for today’s students, paying special attention to student expression in the Facebook era and providing readers with new examples from FIRE’s case archives, important updates from state and federal case law, and incisive analysis. FIRE distributes free hard copies to students who contact FIRE, while electronic copies in popular e-reader formats are free to the public.

The second edition of the Guide was edited by FIRE President Greg Lukianoff and FIRE Director of Legal and Public Advocacy Will Creeley.

FIRE’s Guide has received praise from civil liberties advocates across the country, including Nadine Strossen, Professor of Law at New York Law School, former President of the American Civil Liberties Union (1991–2008), and member of FIRE’s Board of Editors. Strossen says: “FIRE’s newly revised Guide to Free Speech on Campus is both enlightening and empowering. It should inspire students and faculty to exercise their free speech rights vigorously and to defend freedom of speech for every member of the campus community. With fresh examples relevant to today’s college

FALL 2012

FIRE’S GUIDE TO FREE SPEECH ON CAMPUS

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in action

FIRE PRAISES SEVEN COLLEGES AS BEST FOR FREE SPEECH IN 2012

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ith students back on campus and high school seniors beginning their college applications, FIRE was pleased to announce our 2012 list of the nation’s best colleges and universities for freedom of speech in The Huffington Post in September. FIRE commended the following institutions for protecting free speech on campus and maintaining policies that honor freedom of expression:

JAMES MADISON UNIVERSITY

JAMES MADISON UNIVERSITY

THE COLLEGE OF WILLIAM & MARY UNIVERSITY OF MISSISSIPPI MISSISSIPPI STATE UNIVERSITY UNIVERSITY OF TENNESSEE–KNOXVILLE UNIVERSITY OF VIRGINIA UNIVERSITY OF PENNSYLVANIA Three new institutions joined this year’s list. James Madison University, the University of Mississippi, and Mississippi State University each earned the honor following successful revisions to policies that had restricted student expression. The College of William & Mary, the University of Tennessee–Knoxville, the University of Virginia, and the University of Pennsylvania are each enjoying their second straight year as a “best school” for maintaining their strong commitments to freedom of expression, both in their written policies and in their daily practice.

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In determining what schools would appear on this year’s list, FIRE considered whether an institution’s policies restricted speech protected by the First Amendment and whether the school had censored speech in recent years. Each of the seven institutions chosen has earned a “green light” rating in FIRE’s Spotlight database of university policies. FIRE awards a college or university a green light rating if it does not maintain any policies that seriously imperil speech on campus. Only 16 schools out of the nearly 400 FIRE rates have earned green light ratings. As a new academic year begins, students should be aware that these schools are the best bets for their freedom of expression, and, thus, for their academic future. “It’s easy for students to get caught up in the frenzy of trying to get into the best-ranked schools,” said FIRE President Greg Lukianoff. “But if the college you attend doesn’t respect free speech, your education will suffer regardless of how high the college is ranked.”

FALL 2012

FEDERAL COURT DELIVERS FINAL BLOW TO U. OF CINCINNATI ‘FREE SPEECH ZONE’

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n a major victory for student rights, a federal district court delivered a final ruling prohibiting the University of Cincinnati (UC) from reinstating its tiny “free speech zone” in August. In the order, United States District Judge Timothy S. Black issued a permanent injunction against UC’s unconstitutional restriction. Per the ruling, UC may not restrict student speech in the outdoor areas of UC’s campus unless the restriction is “narrowly tailored to serve a compelling University interest.” As reported in the FIRE Quarterly’s Spring issue, prior to the lawsuit, UC had required all “demonstrations, pickets, and rallies” to be held in a “Free Speech Area” that comprised just 0.1% of the university’s 137-acre West Campus. University policy further required that all expressive activity in the free speech zone be registered with the university a full 10 working days in advance, threatening that “[a]nyone violating this policy may be charged with trespassing.” In February, the University of Cincinnati chapter of Young Americans for Liberty (YAL) and its president, student Christopher Morbitzer, sought permission to gather signatures and talk to students across campus in support of a statewide “right to work” ballot initiative, but the request was denied. Morbitzer was told that if any YAL members were seen “walk[ing] around campus” gathering signatures, campus security would be alerted. YAL and Morbitzer filed suit on February 22, 2012, in the United States District Court for the Southern District of Ohio, Western Division, challenging UC’s policy.

The lawsuit was coordinated by Ohio’s 1851 Center for Constitutional Law in cooperation with FIRE. UC had been on notice that its policy was unconstitutional for more than four years. FIRE named UC’s policy our “Speech Code of the Month” in December 2007, calling it “truly shameful” that a public university “threatens students with criminal prosecution merely for exercising their constitutionally protected rights outside of the paltry area it has designated for free speech.” FIRE also wrote to UC in December 2008, explaining that UC’s free speech zone represented a serious threat to liberty on campus. In March 2012, UC topped FIRE’s annual list of the worst colleges for free speech in the country, published in The Huffington Post. After the court issued a preliminary injunction against UC on July 12, the university revised its speech code to comply. August’s ruling will make this change permanent, securing the First Amendment rights of all students on UC’s campus.

UNIVERSITY OF CINCINNATI YOUNG AMERICANS FOR LIBERTY GROUP

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cover story

GREG LUKIANOFF’S NEW BOOK, UNLEARNING LIBERTY, NOW AVAILABLE

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IRE Quarterly readers are well aware of how rights violations on college campuses affect students. Whether it’s an environmentalist student in Georgia expelled for a collage he posted on Facebook, a student in Indiana found guilty of racial harassment for publicly reading a book, or student groups across the country kicked off campus for wanting to organize around a shared set of beliefs, the real-world cost of censorship is significant and sometimes life changing.

pervade student handbooks and college websites not only misinform students about what their constitutional rights actually are—thereby undermining the civic benefit of education—but they also dangerously ignore or even distort the moral and philosophical wisdom of basic rights like freedom of speech. By doing so, Greg argues, colleges and universities fail to serve their role as society’s “sophistication machine” for people to become more enlightened citizens of a participatory democracy.

But, in his new book, Unlearning Liberty: Campus Censorship and the End of Greg strives to answer American Debate—available the question of why, now—FIRE President Greg in a day and age when Lukianoff seeks to take the more of us are college discussion a step further, educated than ever before, arguing that censorship on the quality of our national America’s college and uni- UNLEARNING LIBERTY BY GREG LUKIANOFF dialogue seems to be at an versity campuses has broader, more insidious all-time low. What he finds is that higher consequences that are not restricted to the education—informed by a culture of censorship— boundaries of campus. fails to teach its students to become critical thinkers by supercharging ideological divisions, Drawing on a decade of experience battling for promoting “groupthink,” and encouraging an freedom of speech on campus, Greg contends unscholarly certainty about complex issues. that the over-regulation and double standards applied to speech on college campuses teaches To expose this scandal, Greg walks readers students all the wrong lessons about what it through the life of a modern-day college student, means to live in a free and democratic society. from orientation to the end of freshman year. He finds that the kind of speech codes that Through this lens, he explores some of the most

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Greg contends that the over-regulation and double standards applied to speech on college campuses teaches students all the wrong lessons about what it means to live in a free and democratic society.

startling violations of free speech and due process rights he has seen and fought against in his career. Some of the cases will be familiar to longtime FIRE Quarterly readers; others will serve as a shocking reminder of just how pervasive these violations are.

Through it all, Greg ties his campus narrative to what’s happening in society at large. As he explores public controversies involving Juan Williams, Rush Limbaugh, Bill Maher, Richard Dawkins, and Larry Summers, along with campus uproars in which Dave Barry and Jon Stewart’s “The Daily Show” played a role, Greg paints a stark picture of our ability as a nation to rationally discuss important issues. Already, Unlearning Liberty has begun to receive critical acclaim from across the political spec-

trum for its ability to shed light on the high cost of campus censorship. Harvard University professor Steven Pinker, author of The Blank Slate and The Better Angels of Our Nature, writes that it is an “alternately entertaining and shocking book”; University of Wisconsin– Madison professor Donald Downs says it is “destined to be a classic work on freedom in America”; and renowned journalist Nat Hentoff adds that it is “a must read book for anyone concerned about the constitutional future of our nation.” Unlearning Liberty is available for purchase through Amazon and Barnes & Noble and in bookstores nationwide.

SPEECH CODE OF THE QUARTER: ILLINOIS STATE UNIVERSITY FIRE announces its Speech Code of the Quarter: Illinois State University, FIRE’s Speech Code of the Month for September 2012. ISU’s Code of Student Conduct lists a set of “non-negotiable values,” including “civility” and “an appreciation of diversity,” and states that “when individual behavior conflicts with the values of the University, the individual must choose whether to adapt his or her behavior to meet the needs of the community or leave the University.” Constitutionally speaking, this policy is not a close call. A public university cannot exclude students whose otherwise lawful behavior does not accord with its chosen values.

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rights at risk

PROFESSOR TAKES PURDUE U. CALUMET TO COURT FOR REPEATED FIRST AMENDMENT VIOLATIONS

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or months now, FIRE has fought for the First Amendment rights of Maurice Eisenstein, a Professor at Purdue University Calumet (PUC) who was subjected to months of investigations and numerous retaliatory charges for his exercise of free speech. Eisenstein has been forced to file a free speech lawsuit against the university in an effort to clear his name. Eisenstein has been fighting for his free speech rights since November 2011, when he posted a photo on Facebook of “Christians killed by a radical Muslim group,” and criticized “‘moderate’ Muslims” who failed to condemn the attack. Numerous PUC faculty members and students, some of whom had no previous interactions with Eisenstein, responded by filing harassment and discrimination complaints for the Facebook comments and unspecified comments made in the classroom. One complaint was filed by the PUC Muslim Student Association “on behalf of all Muslim students” at PUC. FIRE wrote to PUC Chancellor Thomas L. Keon in January 2012, explaining that Eisenstein’s speech was protected by the First Amendment and urging PUC to put an end to

its investigation, which had already lasted more than two months. Although Eisenstein was eventually found not guilty of harassment or discrimination in any of nine complaints filed against him, Eisenstein was found guilty of “retaliation” on the basis of two isolated comments to faculty who had also filed complaints. Eisenstein faced additional allegations of harassment and retaliation from another faculty member after he described his case on his personal website and posted public documents that he received in response to a public records request. These documents were the basis for a complaint against Eisenstein filed in April 2012, despite the fact that all the information Eisenstein posted had come from publicly available documents. Fortunately, PUC dismissed this complaint in June 2012, rightly determining its charges to be “not substantiated.” PUC, however, rejected FIRE’s requests and Eisenstein’s appeals to dismiss the other two findings of retaliation against him. In May 2012, Eisenstein filed a lawsuit against PUC, the two faculty complainants, and others for violating his First Amendment rights. Purdue University Calumet’s deplorable treatment of Professor Eisenstein and its atmosphere of intolerance toward dissenting opinions have deeply chilling implications for free speech. FIRE hopes PUC will recognize its errors and stand up for Eisenstein’s rights before becoming the latest university to lose in court for ignoring the First Amendment.

PROFESSOR MAURICE EISENSTEIN

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FALL 2012

OHIO COLLEGE SUED FOR CENSORING PRO-LIFE EVENT

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n June 8, 2012, over 160 rallies were held across the country to oppose new federal mandates dealing with abortion and contraception. For the Traditional Values Club (TVC) at Ohio’s Sinclair Community College (SCC), however, that rally was stifled. Despite SCC’s legal obligation as a public institution to uphold the First Amendment on its campus, police ordered participants and attendees to put their signs supporting the event on the ground, out of view. SCC is now the target of a First Amendment lawsuit following the college’s brazen violation of students’ free speech rights. “Sinclair Community College’s censorship is so plainly unconstitutional that it’s difficult to understand how campus police and administrators justify it even to themselves,” said FIRE Senior Vice President Robert Shibley. “Now they’re going to have to try to justify it in court.” FIRE wrote to SCC President Steven Lee Johnson on June 15, asking SCC to disavow the censorship of TVC’s event by the campus police and to promise never to enforce such a ban against signs in the future. SCC asked for more time to make a decision and then simply reiterated its policy. After discussions with FIRE, the Thomas More Society, working with Ohio attorneys Curt C. Hartman, Christopher P. Finney, and Bradley M. Gibson, brought a lawsuit against SCC in the U.S. District Court for the Southern District of Ohio. The suit was filed on behalf

PROTESTORS AT SCC HOLD THEIR SIGNS BEFORE POLICE TELL THEM TO PUT THEM DOWN

of students Ruth Deddens and Ethel BorelDonohue, along with invited speaker and Director of Youth Outreach for Priests for Life Bryan Kemper. The suit alleges that SCC and its Board of Trustees, college president Steven Lee Johnson, and SCC’s police department maintain and enforce policies that restrict expressive activity at SCC, give unfettered discretion to administrators and the police to restrict student speech, and threaten students with disciplinary or criminal charges for exercising their First Amendment rights. Such censorship has apparently been taking place at SCC for more than 20 years. According to The Clarion, SCC’s student newspaper, campus police have enforced a policy against signs at SCC since 1990, justifying this censorship through an extremely broad reading of the college’s Campus Access Policy. “Twenty-two years of censorship is absolutely inexcusable, and Sinclair’s persistent delay has now prevented yet another protest,” said Shibley. “The time for delay is over.”

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rights at risk

ANTI-BULLYING RULE THREATENS FREE SPEECH AT UNIVERSITY OF DELAWARE

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he University of Delaware (UD) has violated its obligation to protect First Amendment rights by adopting a prohibition on “bullying” that subjects students to punishment for protected speech. The policy, which FIRE named its “Speech Code of the Month” in August, defines “bullying” as “[a]ny deliberately hurtful behavior, usually repeated over time, with the desired outcome of frightening, intimidating, excluding or degrading a person.” Examples of bullying include “teasing,” “ridiculing,” and the “spreading of rumors.” The broad wording of this policy makes it highly vulnerable to abuse and has the potential to silence core protected speech such as parody, satire, and political speech. “No one likes bullying, but most conduct that could be called bullying on the college level is already illegal,” said Samantha Harris, FIRE’s Director of Speech Code Research. “This policy goes much too far by prohibiting constitutionally protected speech.” FIRE wrote to UD President Patrick Harker on June 29, asking him to abolish the unconsti-

tutional policy. “While the university is free to discourage offensive speech and expression that does not rise to the level of actual harassment or threats,” we wrote, “it may not outright prohibit constitutionally protected speech simply because it hurts the feelings of college students.” UD did not respond to our letter. UD’s new policy is particularly worrisome in light of the university’s history of shameful disregard for students’ rights. In 2007, FIRE exposed a shocking ideological reeducation program in UD’s residence halls. Students were required to adopt specific, university-approved views on issues ranging from politics to race, sexuality, sociology, moral philosophy, and environmentalism. Students in the residence halls were required to attend sessions with their resident advisors where they were asked questions such as “When did you discover your sexual identity?” Internal documents referred to the lesson plans as “treatments” for students. UD scrapped the program following intense public pressure, but the fact that UD ever felt that such indoctrination was appropriate leaves FIRE with significant concerns over the university’s commitment to student rights. “UD’s own history of error demonstrates precisely why students’ rights must be vigorously protected,” Harris said. “A broad and vague policy like the one UD has now adopted is a violation of students’ First Amendment rights and an invitation to abuse by the public officials who run UD.”

UNIVERSITY OF DELAWARE 09

FALL 2012

on campus

POSTCARDS FROM THE 2012 CFN CONFERENCE

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his past July, FIRE welcomed over 50 students from across the country to our fifth annual Campus Freedom Network Conference at Bryn Mawr College. The conference featured speeches by several distinguished friends of FIRE, including Professor Don Downs from the University of Wisconsin–Madison, Christina Hoff Sommers of the American Enterprise Institute, and Bob Corn-Revere of Davis Wright Tremaine LLP, who is representing student Hayden Barnes in his First Amendment suit against Valdosta State University. Students also learned from FIRE staff, participated in group discussions, and heard from a panel of students involved in free speech cases at their own schools. Visit thecfn.org/conference for more highlights from the weekend!

r ight: BOB CORN-REVERE middle: STUDENTS DISCUSS HARD ISSUES IN A BREAK OUT SESSION below: FIRE INTERN EMILY HARRISON

FI R E AN N O UN CES FA L L WEBI N AR SER I ES This fall, FIRE President Greg Lukianoff kicked off our webinar series by discussing his brand-new book, Unlearning Liberty, on October 17. Be sure to check thefire.org/ webinar for details on how to join us!

FIRE FALL WEBINAR CALENDAR Samantha Harris Speech Codes, November 14, 3 p.m. EST Robert Shibley Due Process, December 13, 3 p.m. EST

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how to reach us... 601 Walnut Street, Suite 510 Philadelphia, PA 19106 215.717.3473 tel 215.717.3440 fax www.thefire.org Facebook: facebook.com/thefireorg Twitter: @theFIREorg YouTube: youtube.com/thefireorg Google+: Search for “FIRE”!

ABOUT THIS PUBLICATION The FIRE Quarterly is published four times per year by the Foundation for Individual Rights in Education. The mission of FIRE is to defend and sustain individual rights at America’s colleges and universities. These rights include freedom of speech, legal equality, due process, religious liberty, and sanctity of conscience—the essential qualities of individual liberty and dignity. FIRE’s core mission is to protect the unprotected and to educate the public and communities of concerned Americans about the threats to these rights on our campuses and about the means to preserve them. FIRE is a charitable and educational tax-exempt foundation within the meaning of Section 501(c)(3) of the Internal Revenue Code. Contributions to FIRE are deductible to the fullest extent provided by tax laws.


'The FIRE Quarterly' Fall 2012