Last week, FIRE filed a lawsuit against Shippensburg University because the school's code of conduct violates students' First Amendment rights. Shippensburg's code of conduct essentially prohibits students from expressing opinions or beliefs that may cause offense to others ("others" is defined as both persons and groups). The code extends to the manner of expression as well as its content; it was bolstered last month by the establishment on campus of "free speech zones"--a patently unconstitutional measure by which a number of colleges and universities have historically sought to control and contain political expression on campus.

When the suit was filed last week, university president Anthony Ceddia issued the following statement of Shippensburg's commitment to free expression:

"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."

So far, the folks at Shippensburg aren't looking like formidable opponents. And so far, their argument that the lawsuit is frivolous has only succeeded in making them look so.

Read all about FIRE's suit at www.thefire.org.

Surely since the code is not enforced, this question is non-justiciable due to ripeness? I don't think that you even have a case of prior restraint.

I'll bet Alan Kors is a better lawyer than the sociology prof. And if Kors thinks it's actionable, it probably is.

Go FIRE!!! I contribute to this group. Litigation is very expensive. I encourage correspondents to this site to get out their money for this group. I've always been impressed with Kors and Silvergate. Great legal minds. They're working with a board that's rock solid -- including in particular Nat Hentoff.

At some point in the future, FIRE will be the organization that takes on the real issue in academia -- the political vetting of job candidates in the humanities and in administrative positions.

Stephen, it might also interest you to know that FIRE has been very active in recruiting young lawyers from law firms around the country to work on a pro bono basis on behalf of students impacted negatively by these various speech codes. Those students are the named complainants. Because they have limited funds these cases do qualify for pro bono assistance for many firms.

The Shippensberg suit is the opening salvo in a series of suits around the country brought by FIRE in conjunction with their own staff attorneys and those willing to donate their time.

Stay tuned.

Ivan

I noted on my weblog (no link, this isn't an ad space) that the CHE managed to dig up a disparaging quote from a UVA law professor, and his reasoning was identical: As long as no one is enforcing it, who cares? This is obvious rubbish.

If it is possible to tailor the speech code so that it does not infringe on anyone's rights--if, as they say, they have no interest in enforcing them as written--then why go to the trouble of defending the overly broad language in court!? Why go to all that trouble--if you know that the code as written is subject to abuse--to leave it that way?

This argument by speech code defenders is the same as the argument offerred up by Dr. Lynn Weber in an internal memo (that I got my grubby paws on while in SC) and in the CHE--that she never intended to enforce the Guidelines for Class Discussion that were at issue. The obvious question becomes, "Then why issue them at all?"

This nonsensical defense is just a way of trying to deflect the issue by claiming that hey, after all, we're all in agreement here, so there's no problem. It's disingeuous, and in any event, if such codes were never abused there would be no such thing as FIRE in the first place!

Listen to Stephen: get out your wallets and give to FIRE. It's truly an investment.

Scipio, you raise a good point, one likely to be addressed early on.

I have not read the complaint but I would imagine, given the amount of time and effort at play here, that the allegations are sufficiently well pled to defeat a Motion to Dismiss.

I am pleased to hear that an anti-war group has been able to protest outside the 'zone' without interference. My pleasure will be increased when I hear that a campus pro-life group (and btw I am pro-death) is accorded the same exemption from the zone limitation.

I read the complaint. It presents the case as a classic "chilling" argument, so it's got legs. It will be interesting to see how it will work out, but personally I don't think this dog will hunt. More power to FIRE, though. They're definitely doing the right thing.

FIRE would be a more credible organization if the overwhelming majority of the cases they adopt weren't witch-hunts against the phantasmic vestiges of the right's chimera, "pc."

The "discriminatory language" section of the University's code is clearly suggestive, and only the paranoid could conceive of it as threatening their right to express whatever heterodox (read, "orthodox") conventional opinions and prejudices they wish.

Have there been any instances of actual sanctions under this code? No. Has FIRE picked on a poor university needlessly? Yes.

Further evidence of FIRE's bias might be found in their perfunctory defenses of Al-Arian and De Genova, esp. when compared to the massive resources they devote to such a tempest in a demitasse.

Dear Polo Boy:

In the 20th century, the vast majority of those whose personal freedoms were limited or non-existent lived in countries controlled by socialist/communist regimes. China, the USSR, Cambodia, Vietnam, Cuba, Nazi Germany, are good examples. Of course, I could be wrong. Perhaps the hundreds of millions of people murdered, imprisoned and impoverished by these regimes are delusions of right wing fanatics. Or, if true, these wretched souls were the eggs that had to be broken to create the new socialist, politically-correct omelet. I am certain the folks at FIRE would regard your comment as a badge of honor and proof positive that their efforts are worthwhile.

Stu--a man develops a reputation on the street--what he does when he's on top, what he does at other times. You've clearly established yourself as someone fearless enough to make the connections no one else has the courage to. Some might say that Nazi Germany isn't likely to arise again because of Shippsburg State's speech codes, but there are none so blind as they who will not see.

There are none so blind as they who will not see.
You demonstrated this, Polo Boy.

Today, all political and social discussion seems to be instantly transformed into a branding dispute. As soon as we begin to even consider an issue, somebody appears to announce that expressing a certain opinion means that the speaker is a "rightist" or a "leftist."

The reason that PC has been FIRE's target is that the institutional proponents of PC have attempted over the past 15 years to redefine the concept of free speech to exclude speech deemed offensive. It's interesting that 30 years ago defense of freedom of speech was thought to be the very definition of "leftist."

Mr. de Genova may have experienced a negative response to his comments, but no institution has stepped forward to attempt to curtail his freedom to speak. FIRE, therefore, has nothing to do there.

In the 1960s the left fought for free speech in an attempt to broaden the rights to political and (especially) sexual expression. The total reversal of political branding has my head spinning. Fighting for free speech now brands one as a rightist. Will it reverse again in another generation?

As soon as a correspondent begins the branding accusations, all sensible debate ends and we just spit names at one another. Perhaps this is the intent of those who insist on the branding.

"Mr. de Genova may have experienced a negative response to his comments, but no institution has stepped forward to attempt to curtail his freedom to speak."

As Erin O'Connor recounted a few weeks ago (http://www.erinoconnor.org/archives/000611.html) there was "pressure from citizens, students, alumni, and even from some members of Congress" to fire De Genova. Perhaps a letter campaign by some members of Congress does not represent an institution stepping forward, but certainly it is a highly politicized act (and on the part of actual politicians) undertaken with the goal of depriving an individual of his free speech rights.

"Deprivation of speech" can only occur if a governmental entity is the actor. It is perfectly legal, reasonable, and even desirable that individuals choose what speech to support and what speech to reject. The Constitution is not a ban on the marketplace's ability to influence what speech is rewarded.

Since the beginning of the war in Iraq I have noticed many prominent actors, musicians, politicians, and ordinary people too freguently fail to understand that an individual's rights are not deprived or harmed merely because market forces make it uncomfortable or less desirable (often less economcally desirable) to hold a certain opinion.

Or, as one of my favorite writers (Gregg Easterbrook) often says, "speech is free, but not without costs."

The criticism of de Genova never even verged on depriving him of his right to freedom of speech.

Just as people have the right to say truly awful things (i.e., statements that are damned near treasonous) about their government, individuals have the right to say truly awful things about people they don't like (i.e., de Genova should be fired).

The political environment has been about as brutal for the past decade as can be imagined. The left can't exactly claim clean hands here. For 30 years, the left has been claiming that any disagreement with its basic platform is "racist, sexist and homophobic." I think that such speech is the behavior of a fool and a clod, and I've told more than a few people so. They can still say what they think.

What's more interesting is what I am beginning to hear from parents who have children approaching college age. They are becoming increasingly concerned that their children are headed for a bonehead indoctrination instead of an education. Parents are getting pissed, and that is about to build into a political torrent. Watch out!

I_P_O

Let's assume that you are corect in asserting that the cases that fire FIRE'S imagination are those that impact the ability of 'the right' to express themselves on campus.

My question then becomes: so what? Is the lack of political motiviation the sole determinant when it comes to according someone's credbility?

Must any organization, whether it be FIRE or the ACLU achieve equilibrium before we accord it credbility? Do your arguments (or mine) lack credbility because you (or I) adopt a certain world view? I am not sure about the answer.

I suggest that credbility is determined, in part, by how one pursues their interests and not solely by what interests they pursue.

I do not disagree about the use of 'pc' as a shibboleth that can be used as a bonding device for those troops that are encamped on the right. But again, we could sit here and list all kinds of staw dummies all over the spectrum that serve the same purpose.

I do not agree, entirely, that the FIRE case files are littered with cases involving nothing more than phantasmic vestiges, although it is a nice phrase. I get the impression that more than a few involved some serious speech issues - which would overflow even a good sized demitasse.

Whether Shippensburg is one of them will be determined.

"Just as people have the right to say truly awful things (i.e., statements that are damned near treasonous) about their government, individuals have the right to say truly awful things about people they don't like (i.e., de Genova should be fired)."

Sorry, I'm not buying it. De Genova's calling for a million Mogadishus is "truly awful" indeed. Calling for de Genova to lose his job over it is not. Would you also consider it "truly awful" if someone stated (correctly) that if de Genova worked for practically any private institution other than a university, he would have been fired for his comments?

Deprivation of speech" can only occur if a governmental entity is the actor.

B.S. (by that I mean Berkely Survivor and not the other b.s.) . . . That does raise the question as to whether speech restrictions at state owned or funded institutions rise to the level of governmental action. FIRE will no doubt argue that the answer is yes. This is an issue that will be litigated. In fact, I would not be suprised if FIRE actively targets state owned instutitions for that very purpose.

Many state statutes designate state universities as agencies of the state and accord those colleges all the rights and privileges accorded to any state agency.

(These issues have arisen in more than a few 11th Amendment cases and I have had some experience in the area. It is fascinating issue - at least for me - but I won't bore the board with it for now. :).)

Well, you misread my remark. Wouldn't bother me if de Genova got fired. But, from de Genova's perspective, it would probably be "truly awful" if he got fired.

Stoly - I'm aware of the contours of the case law surrounding what is and is not state action for 1st amendment purposes. My only point is that we should be vigilant about what constitutes a violation of someone's right to free speech. And while speech restrictions at public institutions or private institutions that receive public funds raise interesting questions, there can be no doubt when a privately owned radio station decides not to play music by the Dixie Chicks (b/c of the owner's views or as a response to his customer base), their right to free speech is in no way deprived.

Since I am a professional musician, I can tell you with some certainty that radio airplay and freedom of speech don't exactly exist in the same universe.

As I recall, radio airplay has more to do with free tickets, pretty girls, backstage passes, and surreptitious offers of a bone and some snort.

Or have things change since I got ancient?

B.S., gotcha, sorry about the confusion. Stoly

BS--Two words: Clear Channel. You think they operate according to free market concerns? They create the market. Classic case of lassiez-faire for everyone else, socialism for us--secret of America's corporate success.

De Genova erred in two ways, it seems to me. One is that he phrased the "Mogadishus" remark in such a way that made it easy to take out of context, as was done in a truly spectacular fashion. The second, and more damning, is that he claimed that Vietnam was somehow a loss for the U.S. Compare the damage inflicted by each combatant on the other since the U.S. invasion of South Vietnam in the early 60s.

Stoly--you are right that the political orientation of a student who's being denied free expression doesn't matter, nor does it matter what the political orientation of a group lobbying on his behalf is. The question is whether "free expression" is being denied. There seems, from the documents filed by FIRE, no evidence of this at all.

Consider a classroom example: we have a sociology class that represents the country's demographic. A white student says, "I believe, following psychometric evidence and what I've seen on Fox News, that black people are inherently stupider than whites; and this explains the fact that they are disproportionately incarcerated." Does this violate any campus speech codes, including Shippenburg's? No. The same student saying, "We should lock up all the remaining niggers to prevent crime and miscegnation" would violate the speech code, however. I do not believe that any student who felt as the hypothetical white #1 does would be realistically worried about sanctions for expressing the first opinion, but most would be about the second, which is as it should be.

IOP - first, what? Perhaps you know more about the radio industry than me. Please elaborate if it bears on my point. Keep in mind, even a corporation's "conspiracy" to fill the marketplace with certain ideas and exclude others is not a violation of the first amendment.

Second, your first hypothetical student should fear reprisals for his statements, and they most certainly will come from fellow students, profs, and administrators. And why should the second student be "sanctioned" by any sort of governmental entity? What advantage is there to having the government (in the form of a public university - but really, in any form) sanction this speech?

Although I follow this blog (and its comments) with great interest, I have never before posted here. I guess you have I_P_O and his curious definition of free speech to thank for that.

I_P_O, you seem to completely misunderstand the Constitutional guarantees of free speech as expressed in the First Amendment. Freedom of speech does not consist only of freedom for the speech you and your socialist buddies approve of. You claim that complaints about the stranglehold of PC in campus are right-wing delusions, and yet you advocate state censorship of speech that you dislike in your last post. And this you present in all seriousness as something right and just, just after saying that free speech is not being denied.

I'm afraid it seems your political prejudices are blinding you, your comments on the DeGenova case being a clear example of this - according to you, it is perfectly all right to call for the slaughter of US troops (and please don't invoke the "taken out of context" defence; that is on a par with "my dog ate my homework"), but calling for the racist imprisonment of black people is unnaceptable speech. In truth, there is no difference between these statements as far as free speech is concerned from both a legal and philosophical point of view. I find both assertions abhorrent, but I would not attempt to curtail either speaker's freedom to say what they please.

Neither of them, however, is free from criticism - and you seem to be unable to grasp that essential component of a free society. Guarantees of free speech are not guarantees of the right to live free from being offended - on the contrary, only in a totalitarian society would people live free from speech deemed "offensive" by the state. In a free society, speech some or most people disagree with is countered not with censorship but with more speech. Death threats and other criminal conduct are not protected speech, of course, and are a matter for the justice system, but people have a perfect right to criticise both DeGenova and the hypothetical racist speaker, no matter how crass or virulent those criticisms may be.

I suggest that you read both John Stuart Mill and the history of totalitarianism in the 20th century. Mill wrote one of the most powerful philosophical arguments for freedom of speech and its vital role in a free society in a manner that reduces to nothing the fungible arguments of ephemeral politics. As for totalitarian regimes, they show us far too well that we are only as free as the most unpopular speaker in our societies - start forbidding speech for ideological motives, and the slippery slope of dictactorship and thought control begins.

The actions some countries have recently undertaken against fascist and racist speech are also an excellent cautionary tale. I find that sort of speech particularly detestable, but I want it to wither under the robust exchange of a free market of ideas, not to ban in order to fester underground and finally explode in violent action, as the neo-Nazi movements in Germany and elsewhere and other anti-Semitic violence and vadalism in Europe amply demonstrate. The "weapon" against speech you dislike is more speech, and true committement to free speech is not the facile defence of speakers you agree with but the principled defence of the right of speakers whose ideas you abhor to express their views. After all, as someone who comes from a "little country" your eternal condescention towards us as the much idealised and revered Other offends me, but I am not about to call for your views to be censored.