Student Free Speech Suffers a Defeat

Since launching its Stand Up for Free Speech project in 2014, the Foundation for Individual Rights in Education (FIRE) has had a great deal of success in defeating college officials when they interfere with the free speech of students. But you can’t win them all, and a recent decision went against FIRE and the students it represented.

Ironically, this free speech case arose when a number of students at the University of South Carolina (USC) affiliated with the campus chapters of Young Americans for Liberty and College Libertarians hosted an event in November 2015 whose very theme was the threats to free speech on American college campuses. And the students played by the university’s rules, obtaining prior approval from USC’s director of campus life for the posters it planned to display to illustrate the problem of censorship.

But, given the hyper-sensitivity of some college students, complaints about the event were almost inevitable. Three students filed formal complaints of discrimination afterward. One alleged that the students running the event were rude and made racist statements. (These days, of course, the claim of “racism” is so readily used that it often means nothing more than disagreement with a position taken by a “progressive” student.) Another griped about the use of the term “wetback” (which was quoted in the context of a case) and the third maintained that a friend had been “violently triggered” by seeing a swastika and now “feels unsafe” on campus. (“Unbelievable” is an overused word, but it applies there.)

It should have been obvious that the three complaints, one of which whined that the students behind the event “wanted to use university resources and space to post offensive symbols and racial slurs,” completely missed the point of the free speech display. They were so far-fetched that one has to suspect that they were made merely to cause trouble for the two student groups.

Unfortunately, college officials feel obliged to treat all “discrimination” complaints seriously.

A few days after the event, student Ross Abbott (president of USC College Libertarians), who had helped organize it, received an official notice of charge letter from the university’s office of equal opportunity programs. It informed him that he had ten days to schedule an appointment with assistant director Carl Wells to discuss the charges against him, and furthermore that he was not allowed to talk about the matter with any member of the faculty or student body. Abbott was also warned in the letter that he could face sanctions (ranging from mandatory “awareness” training up to expulsion) if the case should be sent on to the office of student conduct.

All of that was quite intimidating, perhaps intended to soften Abbott up for, as the letter put it, “mediation to resolve the complaints.”

Abbott was of no mind to cave in to the university’s thought police. He duly made the required appointment with Wells, and presented him with a letter of his own, stating that he would not agree to any “mediation” since he had done nothing wrong. During the meeting with Wells, he had to answer each of the complaints about the posters—which again had already been approved by another USC official as non-discriminatory—and strongly did so.

Evidently, Abbott did a good job of standing his ground. On December 23, 2015, he received another letter from Wells, notifying him that the university would take no further action against him over the complaints regarding his free speech on campus event.

Even though the USC system had let Abbott off the hook, its high-handed rules were still an affront to the First Amendment’s free speech values. Therefore, Abbott filed suit in February 2016 to challenge the school’s vague, overly broad policies. His complaint argued that those policies give school officials “unbridled discretion to review and restrict student speech.”

The case was heard by federal district judge Margaret Seymour, a Clinton appointee. Her July 7 ruling in Abbott v. Pastides was a setback for free speech on college campuses. Judge Seymour held that USC’s policies were constitutionally acceptable as “a narrow approach to addressing the rights of students on campus: those who participated in the event and those who felt discriminated by it.”

That decision makes hash out of the First Amendment. Its protection of free speech does not call for any “balancing” of the right to speak against the supposed right not to feel “triggered” or “discriminated.” Speech on the USC campus is not free when students can be brought up on official charges, hit with a gag order, and threatened with punishment if they should fail to appear before school administrators—simply because another student files a complaint over speech he or she didn’t like.

“Narrowly tailored” or not, the university’s policies make free speech very problematic at USC.

FIRE’s Executive Director (and Martin Center Board member) Robert Shibley responded to the Abbott decision, saying that the opinion “kneecaps free speech by giving campus bureaucrats extraordinary latitude to browbeat dissenters into keeping their mouths shut.” And the attorney who handled the case for the students, Robert Corn-Revere, states that the decision is “plainly contrary to well-established First Amendment principles and will be overturned on appeal.”

The next stop will be the Fourth Circuit Court of Appeals. We will find out if Mr. Corn-Revere’s optimism is correct. Until then, USC students had better be prepared for mandatory “discussion” sessions with university officials if they should say something that provokes anyone to complain.

  • Glen_S_McGhee_FHEAP

    How much of the decision is part of the traditional deferral to higher ed authority?

    Since medieval times, faculty guilds have negotiated for autonomy with local authorities, sometimes maintaining their own student prisons and adjudicating murders. Vestiges of such “grants” still remain, hidden away like little pockets of autonomy, until events reveal them to the light of day.

    Certainly, “Free Speech Zone” policies and the Carolinian Creed that “vest University officials with unbridled discretion in their ability to review and restrict student speech” is all rather medieval. It is all well and good to say (below), but let’s be real — administrators are a breed apart. (Here, they actually changed the rules after Abbott challenged them.)

    “Universities are not immune from “the sweep of the First Amendment.” Healy v. James, 408 U.S. 169, 180 (1972). Indeed, “[i]t can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” The reality is otherwise.

    Then it starts to get sticky: “While courts have recognized the need for affirming the authority of school officials to proscribe and control conduct, courts have not determined that First Amendment protections “should apply with less force on college campuses than in the community at large.” With competing interests, the contest quickly descends into murkiness.

    • George Leef

      Federal judges are known for deferring to the supposed expertise of administrative agencies, but not to college administrators regarding First Amendment questions. That’s why FIRE has such an overwhelming record of success in cases like this. The “competing interests” here (speech that is not inhibited by the prospect of punishment by officials versus claims of hurt feelings by a few students) nearly always results in a win for the former.

      • Glen_S_McGhee_FHEAP

        Yes, I agree. After the college over-stepped, they updated their policies and procedures, and the federal judge focused on that, not the initial transgression. It is still a swamp, though. Every case is different from the others in some particular way.

        • Glen_S_McGhee_FHEAP

          I’m seeing this as a win for the students, and they should follow up on that win. After that, make sure all other campuses have updated their policies and procedures accordingly.

  • redweather

    “These days, of course, the claim of “racism” is so readily used that it often means nothing more than disagreement with a position taken by a “progressive” student.”

    Spoken like someone who has probably never had to deal with racist comments directed at him.

    “Another griped about the use of the term ‘wetback’ (which was quoted in the context of a case) and the third maintained that a friend had been “violently triggered” by seeing a swastika and now feels unsafe’ on campus. (‘Unbelievable’ is an overused word, but it applies there.)”

    A little more context in this article would have been helpful here.

    • JWJ

      “Spoken like someone who has probably never had to deal with racist comments directed at him.”

      Based on my perspective, you made a racist bigoted intolerant comment.
      As far as I can tell from your comment, you believe that those accused of racism are guilty till proven innocent.
      If you were a student at South Carolina, you would agree that you should be investigated?

      • redweather

        I’ve no earthly idea what you’re talking about. Slow it down.

        • JWJ

          Hmm. Lack of understanding from a reader is either poor reading comprehension or unclear writing. My default bias is usually that it is the writer’s responsibility if the message is not understood.

          Let’s try this, if a person is accused of racism, are they assumed guilty until proven innocent or innocent until proven guilty?
          Who gets to decide the validity of the charge of racism, the accuser? the accused? Whoever yells the most?
          Has the accusation of racism been so over used to such an extent that the slur has lost almost all meaning? Or not?

    • bdavi52

      Oh please. Let us not knee-jerk indict those who complain about the overly broad use of racism as racist…unless, that is, we wish to illustrate exactly the point the author made.

      Perhaps that was that your intent?

      For certainly even the most obtuse among us can recognize the truth in the statement that to “disagree with a position taken by a progressive” is to risk being labeled ‘racist’ (or sexist or misogynist or classist or ableist or capitalist or whateverist), since the True Believer Progressive recognizes no Truth but the Progressive Gospel (and all deviations from that gospel as sin). Thus, from the Book of Progressive Truths the racist assertion: “White Males have never had to deal with racist comments.”

      As for more context — sure, that’s always helpful. But in this instance hardly necessary. We can find some additional background here: but even without that (and the accompanying image of the posters displayed during the event), we can clearly understand how both the term “wetback” and a swastika can be very legitimately used in any discussion of Free Speech and the challenges such a right provides.

      More important, though, is the fact that even if the use of both could be deemed ‘inappropriate’ and/or offensive, still the First Amendment protects the use of such words/symbols. That 3 students evidently found the usage to be offensive and/or triggering (especially in a Free Speech discussion pre-warned as potentially offensive) is ultimately irrelevant (save to the students who felt bad). The fact that the University not just gave these complaints credence but pursued a very aggressive prosecution of the accused demonstrates exactly how weak 1st Amendment protections are (at least at S.Carolina U.) And that sadly tells us way too much about the values of the organization charged with the education of our children.

    • 48574

      “These days, of course, the claim of “racism” is so readily used that

      it often means nothing more than disagreement with a position taken by a
      “progressive” student.”

      Spoken like someone who has probably never had to deal with racist comments directed at him.

      The fact there is real racism doesn’t negate the fact the term is over used to try and silence others. While I don’t doubt you have dealt with racist comments why do you doubt people like me when we say we have been called racist for merely disagreeing with progressive views regarding minority public policy?