First Amendment Lawyer’s AssociationFirst Amendment Lawyer’s AssociationHonolulu, HawaiiHonolulu, Hawaii

A Blueprint for Free SpeechA Blueprint for Free SpeechOn College CampusesOn College Campuses

February 13, 2014February 13, 2014

Robert Corn-RevereRobert Corn-Revere Greg LukianoffGreg Lukianoff

The strange case of Bertrand Russell

Kay v. Board of Higher Education ofthe City of New York, 173 Misc. 943 (1940)

In 1940 Bertrand Russell wasdismissed as a professor of Philosophy from the Collegeof the City of New York.

Dr. William Thomas Manning, Episcopal Bishop of New Yorkled a media campaign against the appointment.

Concerned mother, Jean Kay, sued.

Judge John E. McGeehan,a devout Irish Catholic, heldRussell’s appointment was against public policy.

Among his findings: “Russell has taught in his books immoral and salacious doctrines.” Russell holds “abhorrently repulsive” views on maturbation and nudity. Russell holds tolerant views regarding “the damnable felony of homosexualism.” “Academic freedom does not mean academic license. It is the freedom to do good and not to teach evil. “It is contended that Bertrand Russell is extraordinary. That makes him the more dangerous.”

“The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation…Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise, our civilization will stagnate and die.”

Sweezy v. New Hampshire, 354 U.S. 234 (1957)

University of California at Berkeley, 1964

Milestones of Academic Milestones of Academic FreedomFreedom

Sweezy v. New Hampshire, 354 U.S. 234 (1957).

Keyishian v. Board of Regents of the University of the State of New York, 385 U.S. 589 (1967).

Tinker v. Des Moines Idpt. Comm. School Dist., 393 U.S. 503 (1969).

Healy v. James, 408 U.S. 169 (1972).

Papish v. Board of Curators of the University of Missouri, 410 667 (1973).

Papish v. Board of Curators of the University of Missouri, 410 U.S. 667 (1973)

Source:Engaging Diverse Viewpoints: What Is the Campus Climate for Perspective-Taking? (Washington, D.C.: Association of American Colleges and Universities, 2010)http://www.aacu.org/core_commitments/documents/Engaging_Diverse_Viewpoints.pdf

Is it Safe to Hold Unpopular Opinions?

2013 First Amendment Survey

“The rights of students are to be respected. These rights include respect for personal feelings, freedom from indignity of any type…No officer or student, regardless of position or rank, shall violate those rights;”-Texas A&M, System Policies: Student Rights and Obligations 12-13

“…the use of derogatory names…inconsiderate jokes...inappropriately directed laughter”

-Drexel University, Student Conduct Policy (2006)

Example Speech Codes

2014 Speech Code Ratings

Speech Code Cases

• McCauley v. University of the Virgin Islands, 618 F.3d 232 (3d Cir. 2010)

• Dambrot v. Central Michigan University, 55 F.3d 1177 (6th Cir. 1995)

• Smith v. Tarrant County College District, 694 F. Supp. 2d 610 (N.D. Tex. 2010)

• College Republicans at San Francisco State University v. Reed, 523 F. Supp. 2d 1005 (N.D. Cal. 2007)

• Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989)

• University of Cincinnati Chapter of Young Americans for Liberty v. Williams, 2012 U.S. Dist. LEXIS 80967 (S.D. Ohio Jun. 12, 2012)

• Roberts v. Haragan, 346 F. Supp. 2d 853 (N.D. Tex. 2004)

• Bair v. Shippensburg University, 280 F. Supp. 2d 357 (M.D. Pa. 2003)

• Booher v. Northern Kentucky

University Board of Regents, No. 2:96-CV-135, 1998 U.S. Dist. LEXIS 11404 (E.D. Ky. July 21, 1998)

• Corry v. Leland Stanford Junior

University, No. 740309 (Cal. Super. Ct. Feb. 27, 1995)

• UWM Post, Inc. v. Board of Regents of the University of Wisconsin, 774 F.Supp. 1163 (E.D. Wisc. 1991)

• DeJohn v. Temple University, 537 F.3d 301 (3d Cir. 2008)

Indiana University – Purdue University Indianapolis

University of Cincinnati “Free Speech Zone”

“This was not an act of censorship…this was an act of sensitivity.”

Don’t Mess with Firefly!

“Free speech on campus has to be important, because the currency of the university is ideas.”

- Neil Gaiman

Van Tuinen v. Yosemite Community College District, (E.D.

Cal. 2013)

“The Agreement will serve as a blueprint for colleges and universities through-out the country to protect students from sexual harassment and assault.”

A National Speech Code?A National Speech Code?

Equates “sexual Equates “sexual assault” and “sexual assault” and “sexual harassment;”harassment;”

Defines harassment Defines harassment as “any unwelcome as “any unwelcome conduct of a sexual conduct of a sexual nature” and drops nature” and drops objective test;objective test;

Eviscerates due Eviscerates due process protections.process protections.

“I commit that under my leadership OCR will continue to fully respect freedom of expression and due process while enforcing Title IX[.]”

“[T]he Agreement in the Montana case represents the resolution of that particular case and not OCR or DOJ policy.”

“Men are born ignorant, not stupid. They are made stupid by education.”

Bertrand Russell (1872-1970)