Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
Remember the case where a student group at San Francisco State University was very publicly investigated for violating the school's speech code for holding an anti-terrorism rally where the Hamas flag was stomped on? Ultimately the school decided not to punish the group, but they've still filed suit to get that speech code removed entirely and a Federal judge says he's going to issue a preliminary injunction to do just that.
"It might be fine for the university to say, 'Hey, we hope you folks are civil to one another,' " U.S. Magistrate Wayne Brazil said last week at a hearing in his Oakland courtroom. "But it's not fine for the university to say, 'If you're not civil, whatever that means, we're going to punish you.' "Brazil said he would issue a preliminary injunction barring the university from enforcing the civility standard in any disciplinary proceeding. He said the university can continue to enforce another rule disputed by the College Republicans - prohibiting intimidation or harassment - but can use the rule to punish students only for threatening someone's health or safety, and not merely for offensive statements or conduct.
The ruling, which has not yet been issued in writing, was a victory for conservative legal organizations that have filed suits around the nation challenging colleges' speech codes.
No, it's a victory for the first amendment and for liberty; the fact that it's a conservative group making the argument is irrelevant. The articles goes on to cite many cases with a similar result:
Most of those codes were adopted in the 1980s and '90s and prohibit what the schools described as hate speech - expressions that are abusive or demeaning to various racial, ethnic, sexual or religious groups. Opponents, who have often included the American Civil Liberties Union as well as religious conservatives, say the codes amount to censorship and an attempt to stifle debate.In one case, a federal judge in Pennsylvania in 2003 struck down a college code that prohibited "acts of intolerance that demonstrate malicious intent." Another judge in 1989 overturned a University of Michigan code forbidding speech or conduct that "stigmatizes or victimizes an individual" based on race, religion, sexual orientation or other characteristics.
Similar provisions in Stanford University's code, outlawing words or symbols that convey "direct and visceral hatred or contempt" for people because of their status, were declared unconstitutional by a Santa Clara County Superior Court judge in 1995.
And that's just a sample. Such codes virtually never get upheld in court, yet they exist at an extraordinary number of public universities. That's why I've said before and say again that we need an all out legal assault on them, all over the country. We need a clear and definitive Supreme Court ruling that can be used to squash these codes once and for all.
Comments
Yeah, but Stanford's not a public university... on what grounds did their speech code get overturned?
Posted by: JY | November 9, 2007 1:01 PM
JY: I'm pretty sure that, generally speaking, private institutions don't get to violate individuals' constitutional rights either.
I've noticed something about these speech codes and those who fight against them. Those on the left of the political spectrum - the ACLU, FIRE, etc. - fight these infringements on individual liberty simply because they are infringements, as a matter of principle. Those on the right only fight them if conservative students are the ones being silenced.
Posted by: G | November 9, 2007 4:21 PM
The Stanford speech code, if I remember correctly, was invalidated on a California state law. That's why it was in state court. At the Federal level, the first amendment would not apply to Stanford's speech code.
Posted by: Ed Brayton | November 9, 2007 5:31 PM
G,
FIRE is not a left-wing organization. Actually, it is often criticized as right-wing because at present much of the threat to freedom of speech on university campuses comes from the left.
Posted by: Bill Poser | November 10, 2007 4:52 AM
Actually G, the "leftwing" groups like the ACLU (FIRE, as mentioned by Bill, is not a leftist group) have been criticized on this blog and elsewhere for precisely the opposite. The ACLU has been largely MIA on the campus speech code issue. You and the SF Chronicle reporter are off-base.
In fact, it is a right wing group that represents the plaintiffs in the case Ed is reporting on here -- the Alliance Defense Fund. What's more, it is ADF who has (I think) the only litigation department of all PILFs dedicated to stomping campus speech codes and other totalitarian campus outrages.
The ACLU has issued a statement on speech codes (it's of 1994 vintage BTW...not really on the forward edge of today's battle I'd say) and written a few letters here and there, but that's it. The Left as a whole has been effectively silent about speech codes or RESPONSIBLE for them (after all, who has enacted them but the campus Left?).
By the way, FIRE, which does not directly litigate, was headed by David French until 2005. Who is David French, you ask? French is head of ADF's Center for Academic Freedom. Don't think ADF would hire the head of a leftwing group.
Ed is right. This is not a victory for conservative groups, this is a victory for liberty. Of course, the university Left doesn't much like liberty. Cramps their style.
Posted by: Chet Lemon | November 10, 2007 9:01 AM
FIRE is neither left nor right, they're just devoted to maximizing free speech in academia. It was founded by Alan Charles Kors, who most would regard as a conservative, and by Harvey Silvergate, who is certainly a liberal. Their boards of directors and advisers include people who range from conservative (William Hume) to liberal (Nat Hentoff, Nadine Strossen, Wendy Kaminer) to libertarian (Virginia Postrel).
Posted by: Ed Brayton | November 10, 2007 9:03 AM
Chet Lemon wrote:
I think this overstates the case a bit. I've criticized them for not doing enough on this issue, but that doesn't mean they've not done anything. The ACLU has filed suits and sent letters and helped get rid of abuses at many colleges around the country. I still wish they would do more. I would like to see this become a special project for the ACLU, like the reproductive rights project and the racial justice project. This should be a priority issue, in my view.
I do think that the ACLU and FIRE have a much better track record of defending civil liberties regardless of the political views of the person whose liberties are at risk than the various Christian legal groups on the right. The ADF, the ACLJ, the TMLC, Liberty Counsel and the others only get involved if there are Christian views being expressed. That is not at all true of the ACLU (obviously, given the long history of defending the rights of right wing nuts ranging from the KKK to the Phelps clan to Jerry Falwell) or of FIRE.
Posted by: Ed Brayton | November 10, 2007 9:13 AM
It's another example of how "right" and "left" are not very useful terms. There are various political views, obviously, but they cannot be summed up simply by placing them on a one-dimensional continuum.
Anyway, this sounds like a good outcome. However, why is it only a "preliminary injunction"? Actually, I'm not sure what that actually is. I assume it is different from an interim injunction (which simply freezes the status quo, is usually awarded ex parte, and lasts only until the parties can be brought together in court). But I'm not sure whether it's the same as an interlocutory injunction (which may or may not continue beyond the trial, depending on the final outcome) or whether it's meant to represent a binding conclusion on some aspect of the case. The article seems to imply the latter. Is this correct, or could the injunction still be rescinded by the court after further argument?
Posted by: Russell Blackford | November 12, 2007 12:41 AM