free-speech hurt feelings

Where Colleges Ignore Free Speech Violations and the Legal System Helps

by Steve MacDonald

I’ve had a few things to say about free speech. More than a few. Campus “speech” is one of the more common places to land. The inclusion and diversity movements (hypocritically) invest so much time and energy limiting speech to a very narrow set of approved words and ideas that the fruit is heavy and very low.

But University administrations, as it turns out, are no better. They’ve taken to using the courts to keep from having to protect their own student’s first amendment rights.

Just so we are clear, these cases regard colleges and universities that take public money. Administrators of these “institutions” who purposefully limit the free exercise of words ideas, even association by students who think or say things they wish to suppress.

It doesn’t matter what is being suppressed, but it always seems to be conservative thought, in case you were not sure.

The game is this. Court cases take a while to litigate. By the time the case is even heard the individual whose rights were violated may have graduated. Graduates no longer have standing. Colleges may also claim the policy that resulted in the violation is under review or has been suspended. The court may see this (additionally) as resolving the matter and dismiss. The same college then reinstitutes the policy or simply continues to enforce it as if it had never been suspended.

In all such instances, the student’s expression was silenced, they are left with a pile of legal fees, and they receive no relief for having had their Constitutional rights violated.

Colleges and universities accepting public money to continue to infringe, (most if not all of them selling degree programs in social justice theologies promoting the need for us to all just get along) with no incentive to curb their biased behavior.

Greg Lukianoff & Adam Goldstein writing at the Volokh Conspiracy call it the Speech Code Hokey Pokey.

Adding in the time it takes for an appeal, even a student with the questionable “good luck” to have his rights violated on the first day of classes is unlikely to maintain his student status through an appellate review.

What about the modification of the policy? Since day one, nearly every time FIRE contacts a school about a restrictive speech code, the college says it was already “under review.” (Apparently, that’s the kind of review that involves doing nothing until someone notices.) But more importantly, dismissing a case because a school voluntarily withdraws a bad policy (but does not admit it was unconstitutional) rewards what Adam likens to the Speech Code Hokey Pokey: When the complaint appears, you pull your bad policy in. When the case is moot, you put your bad policy out. Then you take the civil rights of the students and you shake them all about. (This way, you’ll never have to turn your censorship around — that’s what it’s all about.)

Campus administrators use intimidation on campus to silence speech knowing that the threat of legal action is more often than not self-defeating. Students spend their campus lives in fear of expulsion knowing that there’s no victory should they challenge the obvious abuse.

But we’re not without hope.

In denying a motion to dismiss in Bair v. Shippensburg University, a recently graduated student and a current student who claimed their speech had been chilled by a code prohibiting “inflammatory or harmful” speech had standing; the court quoted Justice Blackmun’s majority opinion in Forsyth County v. Nationalist Movement, writing, “the very existence of some broadly written laws has the potential to chill the expressive activity of others not before the Court.” In Roberts v. Haragan, the court noted a student-plaintiff at Texas Tech could not make an as-applied challenge to an earlier version of a speech code (because he’d voluntarily complied with a request to move his speech, then never showed up to make it); that student still had standing to make a facial challenge to the interim policy that replaced it, which prohibited “insulting” speech.

The student-plaintiffs’ petition for en banc rehearing — which could be ruled on at any moment — summarizes the stakes:

This Court has stressed the “persistent and insidious threats” to the First Amendment posed by the heckler’s veto, and held that complaints alleging discrimination must be resolved without burdening speakers’ rights. The panel’s acceptance of what it described as “incidental burdens” imposed by enforcement of [Univ. of South Carolina’s policy] is inconsistent with the law as articulated by the Supreme Court, this Court, and other circuits, and must be corrected on rehearing.

(Citation omitted.) If the petition isn’t granted, a cert petition seems likely, because student rights cannot tolerate this interpretation of standing.

Remember that this offensive, harmful, defamatory speech defined by a far-left campus culture is a constantly moving target. More often than not these indictments are based solely on the accusations of mysterious third parties whose feelings were injured or who felt triggered by the presence of shirt, hat, person, conversation, or subject.

Due process at the campus level is sketchy if it exists at all.

This matters because it is the foundation, the template, for how the left would treat “speech” everywhere.

It is critically important that you remain aware and informed of these assaults and the systems and individuals who support them including candidates elected office who claim to support the first amendment but dismiss or ignore these violations.

The government should not be funding colleges that abuse the first amendment rights of students. That means your congressmen at the federal level and your state legislators at the local level. But they will ignore it unless you ferret it out, share it with them, and expect some sort of investigation and response.

Much like the colleges, they use the system to ignore the problem. Don’t let them.

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