Category: First Amendment

FIRE’s yearly Hall of Shame: the 10 worst colleges for free speech

February 4, 2020 • 11:30 am

The Foundation for Individual Rights in Education (FIRE) has issued their booby prize for the ten worst colleges for free speech of the year. (The prize is for 2020 but reflects what happened in previous year.) Click on the screenshot below to go the article. What bothered me, but didn’t really surprise me, is that my Ph.D. alma mater Harvard University is on the list.

The list they give is in no special order: as FIRE’s introduction notes:

As in previous years, FIRE’s 2020 “worst-of-the-worst” list is presented in no particular order, and both public and private colleges are featured. Public colleges and universities are bound by the First Amendment. Private colleges on this list are not constitutionally required to respect student and faculty speech rights, but explicitly promise to do so.

This year, we also bestow a special distinction upon Rensselaer Polytechnic Institute. FIRE has criticized RPI’s censorship so much in recent years that those three letters are starting to rub off of our keyboards. For ruining our computer equipment and maintaining a years-long rap sheet of flagrant censorship, FIRE awards RPI with the Lifetime Censorship Award — reserved for a college or university that threatens the free speech rights of its students and faculty so often that it deserves individual infamy. We couldn’t think of a more worthy recipient than the Sensational Sentinels of Censorship of Troy, New York.

With this dubious distinction, RPI joins fellow perennial censor DePaul University, which earned the award in 2018.

I’ll briefly list the colleges and why they made the list. Some of these, especially Harvard, have appeared on this website, and I’ll put links to my posts where they’re relevant.

1.) Babson College (Wellesley, Mass.): They fired professor Asheen Phansey for mocking the U.S. threat to bomb Iranian cultural sites. He wrote this:

“In retaliation, Ayatollah Khomeni should tweet a list of 52 sites of beloved American cultural heritage that he would bomb. Um… Mall of America? …Kardashian residence?”

For that, Babson fired him: he made “threats” and “condoned violence”.

 

2.) Jones College (Ellisville, Miss.) Student Mike Brown was stopped several times from exercising his free-speech “rights”. On one occasion he was prevented from recruiting students for a campus organization, the Young Americans for Liberty, saying that he needed permission to speak on campus. There were several other incidents, and Brown has filed a First-Amendment lawsuit against the school.

 

3.) Harvard University (Cambridge, Mass.) You’ve heard some of the incidents leading to Harvard’s inclusion on the list, including the firing of housemaster Ronald Sullivan from running a residential dorm because he accepted a position as a lawyer on Harvey Weinstein’s defense team. See my reports here. (Sullivan, who’s black, has a long history of defending the marginalized as well.) Further, the school continues its policy of punishing students who join single-sex, off-campus clubs, the “finals clubs” that are either all-male or all-female. (See my reports here.) That violates freedom of association. Finally, as FIRE notes:

And just a few months ago, Harvard implemented a new speaker policy requiring that events deemed to involve “high profile, controversial speakers, or VIP guests” have a neutral moderator in place, ostensibly to prevent disruptions. Unfortunately, the policy is riddled with ambiguities, leading the Harvard Crimson student newspaper to label the policy “troublingly vague.”

 

4.)University of Scranton (Scranton, Pa.). The student government rejected a student proposal to establish a chapter of the conservative organization Turning Point USA on campus. The rejection clearly constituted, given the nature of the discussion, a form of “viewpoint discrimination.”

 

5.) Middlebury College (Middlebury, Vt.)  As FIRE reports (and as I reported here, here, and here):

Just hours before controversial Polish scholar and politician Ryszard Legutko was set to speak at Middlebury College last April, campus administrators made national news by unilaterally canceling the event, citing unsubstantiated “safety risks.” In doing so, they denied a willing audience the opportunity to hear Legutko’s arguments and critics from challenging him, either through peaceful protest or pointed questions.

Of course Middlebury students also attacked Charles Murray when he spoke there in 2017, a display of censorship second only in egregiousness to those of Yale and The Evergreen State College. Murray is scheduled to speak at Middlebury again this year, I believe, so we’ll see if those entitled students have learned to behave themselves.

 

6.) Long Island University Post (Brookville, N.Y.). A student was investigated for possessing and distributing “forbidden flyers”. According to FIRE, “These flyers, which had been appearing on campus throughout the school year, were labeled “Common Sense” à la Thomas Paine and contained parodies and poems criticizing LIU Post and its administrators, particularly President Kimberly Cline. Apparently the school doesn’t like criticism of itself and its administration. Too damn bad.

 

7.) University of Connecticut (Storrs, Conn.). A group of students were walking across a parking lot and one of them said the n-word. They thought they were alone, but were overheard. The campus police launched a thorough investigation, using cameras and wi-fi records, and, according to FIRE, “charged them with a criminal offense under a century-old statute outlawing race-based “ridicule” in commercial advertisements. (Connecticut police have long since ignored the text of the law and now abuse the statute to arrest the homeless, mentally ill, or people who direct race-based insults at police officers.)” The students were also brought up on college disciplinary charges despite a federal court order that U. Conn. couldn’t impose hate-speech policies on its students (it’s a state school and must thus abide by the First Amendment.)

The students have brought a First-Amendment lawsuit against the University. I suspect they’ll win. And get this: FIRE reports something as bad:

Not to be outdone, the president of Western Connecticut State University pledged criminal charges and expulsion for any student responsible for “It’s OK To Be White” and “Islam is right about women” flyers. Censorship, it appears, is contagious.

Criminal charges and explusion for saying that? Remember WCSU is also a state school, and any charges won’t stick.

 

8.) Syracuse University (Syracuse, N.Y.) Multiple violations here, including failure to allow a conservative group, the Young Americans for Freedom, to have a chapter on campus unless—get this—the YAF dropped its requirement that students believe in “conservative values.” That wasn’t considered “inclusive,” but of course such a demonstration is viewpoint discrimination. There were other incidents, too, including, suspension of all fraternities, including minority ones, for a racial slur uttered by someone who wasn’t a fraternity member. Read the article to see even more violations of free speech.

 

9.) Doane University (Crete, Neb.). As I reported in May, the University suspended librarian Melissa Gomis for including a photograph of a 1926 college holiday party of students in blackface in a display of historical material from the University archives. When students complained, Gomis removed the material—but she was still suspended! She’s since been reinstated, but this is one of the more egregious actions taken against a University employee.

 

10.) Portland State University (Portland, Ore.). Schools don’t get more woke than PSU, and you shouldn’t be sending your kids there. They’ve harassed Peter Boghossian for participating in the “hoax paper” scandal, but that isn’t even mentioned in the FIRE article, for the issues there, I suppose, aren’t about free speech. But there were two other instances of censorship, one from the Right and the other from the Left. FIRE reports:

In January 2019, the Portland State International Socialist Organization, a student group, planned to hold a meeting about capitalism, climate change, and socialism. Joey Gibson, the non-student founder of the conservative “Patriot Prayer” group, took to Facebook to announce that he would show up uninvited, hoping to make the students answer for “antifa.”

This led campus police to cancel the meeting, later claiming that the students agreed to the cancelation. (They had not.)

If Portland State’s police learned anything, it was the wrong lesson. In March, a protester armed with a cowbell filibustered a meeting of the College Republicans, which had convened to hear a conservative blogger speak about the Second Amendment. Four campus police officers stood by while the protester prevented the meeting from taking place.

“We want to deplatform you,” said the protester. “We want you to stop fucking talking.” And Portland State’s police didn’t so much as ask him to stop, notwithstanding a university policy barring “disruptive or disorderly conduct” which “interferes with the use and enjoyment of the facilities, including … [n]oise that is disturbing to others.”

Their excuse? They were concerned that it might “escalate a potentially unsafe situation” to intervene during an “event advocating gun rights.” To protect and swerve.

 

SPECIAL AWARD: Rensselaer Polytechnic Institute (Troy, N.Y.) RPI get a lifetime achievement award for censorship for repeatedly trying to stifle student expression, especially expression that criticizes the administration. And that administration has a real penchant for prohibiting students from handing out activist flyers. The sordid store is at this link.  And here’s their award:

As usual over the last decade, most of the attempts to abridge free speech come from the Left. But not always, as we can see from the Portland State incident. It’s just that the Left has control over most campuses now, both from student sentiment and the leanings of administrators, and the Left also has a penchant for being censorious.  But, of course, the prevention of censorship must be applied even-handedly, and eternal vigilance towards all ideologies is the price of free expression.

 

Supreme court set to further erode the First-Amendment wall between church and state

January 31, 2020 • 10:45 am

In the past few years, federal courts have continued a slow erosion of the church-state wall specified by the First Amendment to the U.S. Constitution, often ruling that religious symbols or monuments can remain on public land, or be flaunted by government agencies, because they’re not really religious but simply part of our “tradition.” Now the Supreme Court is set to speed up that erosion, and I suspect that, given the preponderance of conservative Justices, they will decide to allow more of the religious camel into America’s secular tent.

On January 22, the Supreme Court heard arguments on a “landmark” case—that is, it could be a landmark case if the Court decides to further bash the First-Amendment wall between church and state. This is the case of Espinoza v. Montana Department of Revenue, whose arguments can be seen on the Supreme Court’s blog below (click on screenshot), and are summarized in the New York Times article below that.

This is a complicated case, with the details and issues not at all clear from newspaper reporting (even the NYT), so I had to call the Freedom from Religion Foundation to get clarification (h/t to Attorney Patrick Elliott).

What’s at stake here is whether the government is obliged to fund religious schools, something that’s previously been off limits in most but not all states. This case represents an appeal following a case in Montana, where the state’s supreme court ruled against a scheme that allowed such funding. At the Freedom From Religion Foundation’s website, constitutional lawyer Andrew Seidel summarizes the case so I don’t have to:

The case involves a neo-voucher scheme adopted by the Montana legislature. Taxpayers owe taxes to Montana. They are relieved of that obligation [JAC: not completely relieved; they get a tax break] if they divert the payment to a scholarship organization that funds private education. It’s a dollar-for-dollar match. One dollar to a scholarship fund is one dollar off your taxes, and 94 percent of these scholarships fund private religious education. Montana appropriated $3 million to cover the anticipated shortfall from forgiving those obligations. The Montana Supreme Court struck down this neo-voucher program because the Montana Constitution says that the state “shall not make any direct or indirect appropriation or payment from any public fund or monies, or any grant of lands or other property for any sectarian purpose or [school].” The court ended the entire neo-voucher scheme, for all private education, religious and nonreligious.

Plaintiff Espinoza brought suit against the state’s ban because she has daughters in a Christian school and want the state program to be maintained to allow them to stay there.

According to another NYT piece, 13 schools were served by these vouchers, 12 of which were religious—and all of the latter were Christian schools. Seidel continues:

Conservative Christian parents want the U.S. Supreme Court to save the program by declaring that they have a right to public funds for their private religious education. If the Supreme Court agrees, it will be overturning a crucial legal principle. Without that principle, states could compel all taxpayers to fund religious worship and religious education. So, yes, this case does threaten religious freedom. Because the right to be free from that compulsion is religious liberty. The right is possessed by every Montana citizen and taxpayer, not just a select segment of Christian parents. That is the right at issue before the Court today.

Well, the law as I read it doesn’t compel taxpayers to fund religious education; after all, you don’t have to contribute to the “neo-voucher” fund. Nor does the state government directly issue vouchers to give money to religious schools. But in effect, the Montana state government was subsidizing religious education, for tax monies that could go to secular schools were diverted, though the program, to private schools, and in Montana that means religious schools. That’s why the Montana courts completely dismantled that program: what was happening was an “indirect appropriation” used for religious purposes: a violation of the state constitution.  The issue might be clearer if the law said that if you gave money to a fund that supported churches, your state taxes would be reduced by that amount. Now that is clearly a violation of the First Amendment. Well, it’s no different with religious schools.

Now half of what the plaintiffs are arguing is that the Montana court decision violates the “equal protection” clause of the U. S. Constitution (which is why this is before the Supreme Court, which has no power to interpret a state constitution). But that argument is bogus because the program that funded both secular and religious schools was eliminated by the state. So the issue of protection has disappeared. If the Supreme Court had its wits about it, it would reject this contention. But many people think that conservatives on the court will accept any argument to further religion.

Besides constituting a government subsidy to religious schools at the expense of public ones, the prospective voucher system also weakened the public school system.

Apparently several other states have voucher programs that support religious schools, but some other states have forbidden them. In a ruling two years ago, the Supreme Court ruled that eliminating such programs actually violated the First Amendment by barring religious schools from participating in programs along with other private schools. And the basis for that ruling is “religious freedom”: the second contention of Espinoza in the Supreme Court case. Apparently religious people think that the First Amendment entitles them to not only have religious schooling for their kids (a right they have already), but also should have government support for that schooling. That, too, seems to be a backwards interpretation of the First Amendment, which is supposed to prevent entanglement of the government with religion.

The religious plaintiffs and their defenders, which of course include the Trump administration as well as various conservative and religious groups, are arguing that freedom of religion demands subsidies to religious schools if there are subsidies for secular private schools, for otherwise, excluding them under a voucher system is discrimination against religion.  But, as New York Times court reporter Linda Greenhouse wrote:

There is so much about this case that is simply backward. The administration argues in its brief that “the constitutional violation in this case is especially egregious because it involves the education of children.” But to the contrary, that’s exactly where the wall of separation has to be maintained with the greatest care. Religious education serves a purpose, inculcating religious values and preserving religious traditions. A parochial school is not just another neighborhood school down the block.

What is the FFRF and secularists worried about? Apparently that if the Supreme Court overturns the Montana decision, then all voucher programs must also include religious schools. As Greenhouse writes:

Certainly, parents are constitutionally entitled to choose a religious education for their children. And under a 2002 Supreme Court decision, Zelman v. Simmons-Harris, states are free to offer parents the choice of using vouchers to help pay for religious education. That was a bitterly fought 5-to-4 decision. The administration now would go further: not only that a state may include religious schools in a voucher program, but that it must include them, if it wants to have a voucher program at all.

But it could be worse than that. It’s not beyond the Court’s purview to confect a ruling that requires all states to allow government funding of religious schools, though it’s not clear how that would work. In other words, they could not only reinstate Montana’s original voucher program, but make it mandatory for every state to have such a program. And that would represent the most serious erosion of the First Amendment.

 

Federal appeals court ruling endangers First Amendment

December 19, 2019 • 10:00 am

A new article in The Atlantic by Garrett Epps, writer and legal scholar (he teaches law at the University of Baltimore), describes what both he and I see as a very legal serious challenge to the First Amendment’s free speech provision. Click on the screenshot to read about it.

I can state the facts in brief in the case of Mckesson v. Doe. On July 9, 2016, there was a Black Lives Matter demonstration in front of the Baton Rouge, Louisiana police station.  A police officer, who has chosen to be an anonymous “John Doe”, was injured, and is suing the demonstration’s leader as well as Black Lives Matter. The description below is from the decision of three members of the Fifth Circuit Court (a conservative appeals court whose bailiwick includes Mississippi, Louisiana, and Texas):

Officer Doe was one of the officers ordered to make arrests. DeRay Mckesson, associated with Black Lives Matter, was the prime leader and an organizer of the protest. In the presence of Mckesson, some protesters began throwing objects at the police officers. Specifically, protestors began to throw full water bottles, which had been stolen from a nearby convenience store. The dismissed complaint further alleges that Mckesson did nothing to prevent the violence or to calm the crowd, and, indeed, alleges that Mckesson “incited the violence on behalf of [Black Lives Matter].” The complaint specifically alleges that Mckesson led the protestors to block the public highway. The police officers began making arrests of those blocking the highway and participating in the violence. The complaint specifically alleges that Mckesson led the protestors to block the public highway. The police officers began making arrests of those blocking the highway and participating in the violence.

At some point, an unidentified individual picked up a piece of concrete or a similar rock-like object and threw it at the officers making arrests. The object struck Officer Doe’s face. Officer Doe was knocked to the ground and incapacitated. Officer Doe’s injuries included loss of teeth, a jaw injury, a brain injury, a head injury, lost wages, “and other compensable losses.”

Following the Baton Rouge protest, Officer Doe brought suit, naming Mckesson and Black Lives Matter as defendants. According to his complaint, the defendants are liable on theories of negligence, respondeat superior, and civil conspiracy. Mckesson subsequently filed two motions: (1) a Rule 12(b)(6) motion, asserting that Officer Doe failed to state a plausible claim for relief against Mckesson and (2) a Rule 9(a)(2) motion, asserting that Black Lives Matter is not an entity with the capacity to be sued.

What is happening is that the leader of the demonstration is being sued for violence inflicted by a participant in the demonstration, although Mckesson apparently did not directly (or indirectly) incite imminent violence. As Epps writes, the courts have, over time, settled on a definition of Free Speech that takes into account  resulting violence. And that definition is this: someone has violated the First Amendment if their speech that causes violence meets three criteria: the speaker intended to incite violence, the violence incited was imminent, and that violence was also likely. None of these criteria appear to have been met in the incident in Baton Rouge.

Nevertheless, a 3-judge panel of the Fifth Circuit (there are 17 judges in total) unanimously ruled that the suit against Mckesson can go forward, saying that “the First Amendment does not protect violence,” an ambiguous statement if ever there was one. The defendants’ request for the full court to hear the case (“en banc”) was rejected.

There’s one twist here: after the decision, one of the judges, Don R. Willett (a Trump appointee and formerly a member of the Texas Supreme Court), changed his mind—and publicly. From Epps’s article:

The latter course just got harder. Willett, a Trump appointee and former Texas Supreme Court justice, has now changed his vote and issued a full-throated defense of the idea that free speech covers even unruly protest.

“I have had a judicial change of heart,” Willett wrote. “Admittedly, judges aren’t naturals at backtracking or about-facing. But I do so forthrightly. Consistency is a cardinal judicial virtue, but not the only virtue. In my judgment, earnest rethinking should underscore, rather than undermine, faith in the judicial process. As Justice Frankfurter elegantly put it 70 years ago, ‘Wisdom too often never comes, and so one ought not to reject it merely because it comes late.’”

The words are true, and the practice of judicial self-examination is, while not unheard-of, regrettably rare. In this case, reexamination led Willett to see two gaping holes in the majority’s case. First, he pointed out, despite the panel’s earlier decision, it’s not clear that even Louisiana tort law would support a lawsuit against Mckesson. To reach that conclusion, the panel had to, in essence, make new Louisiana state law. Every second-year law student knows that is a practice courts of appeals are supposed to avoid—especially when doing so creates a federal constitutional issue.

Willett further wrote that, having insisted on reaching the free-speech issue, the panel botched that as well. Doe’s complaint alleged that Mckesson “incited” the violence that led to Doe’s injuries. But Doe’s lawyer didn’t even bother to explain how. As Willett put it:

Not one of the three elements of “incitement”—intent, imminence, likelihood—is competently pleaded here. . .

That’s a brave admission from a judge, and I like his quote from Felix Frankfurter. Still, this only makes the decision 2-1, so the ruling still stands. And unless that ruling is overturned by the U.S. Supreme Court (which is deciding now whether to take it), there will be a damaging precedent that could chill free speech. If a speaker or a leader of a demonstration can be held responsible for violence inflicted by a demonstrator, even if that violence is not really incited, you can imagine the chilling effect this would have on any passionate demonstrations, or people’s willingness to lead them.  It’s for this reason that I thought the case would surely be taken up by the Supreme Court (they have until January 9 to make that decision), for to let the Fifth Circuit ruling stand would seriously weaken both freedom of speech and also completely change how the courts judge “imminent violence” as a violation of the First Amendment.

I called Andrew Seidel, constitutional attorney at the Freedom From Religion Foundation (and author of the excellent book The Founding Myth: Why Christian Nationalism Is Un-American), who told me that the Supremes’ accepting such a case would normally be a no-brainer, but in today’s judicial climate it’s not at all clear that the Supreme Court will take it. If they reject it, moreover, they don’t have to give a reason: all we get to know is “case accepted” or “case rejected.” And if they reject it, this could mean that there would be at least two standing appeals court rulings that conflict with each other.  I’m not sure, then, how future cases of this kind will be litigated. Stay tuned, and I’ll report back in January.

(If you want to see all the judicial decisions in this case, go here and enter “Mckesson” in one of the search boxes.)

Truman State rejects student clubs for no good reason, violating First Amendment

December 15, 2019 • 11:15 am

I once visited Truman State University (it’s in Kirksville, Missouri—Truman’s state) as a guest of Taner Edis, physicist, atheist, and anti-creationist. It was a pleasant visit, and Taner surely couldn’t have played a role in the latest shenanigans at This school, recounted in the article from FIRE (the Foundation for Individual Rights in Education) that you can see by clicking on this screenshot:

Student Naomi Mathew’s animal rights group was rejected for the “emotional risk” it could cause other students. Now she’s fighting back. (Rivera Eye Photography for FIRE)

Note that Truman State is a public university and thus subject to the strictures of the First Amendment. However, as the article recounts, the school has repeatedly turned down students’ requests to form what seem to be perfectly reasonable clubs and organizations—and has nixed them on ridiculous and subjective grounds. You can see more of this history in the letter from FIRE to the President of Truman state (pdf here).

Earlier, Truman State students sought to create a Vegetarian Club, which was rejected because an evaluator said that such a diet could be harmful to some people and that “there could be the potential risk of miseducating people interested in joining the club/lifestyle.” The club was rejected three times.

In October of this year, sophomore Naomi Mathew, pictured above, tried to start an “Animal Alliance” club to promote animal rights. Mathew did everything necessary to get official status, including procuring an advisor, identifying more than ten interested students, and filling out an application form. After a hearing, that club was also rejected because of the potential “risk brought about by [Animal Alliance’s affiliation with PETA]”, because there was “a high emotional and reputational risk” to the university, and because they were worried about having to get police for the club’s events.

FIRE’s letter shows that Truman State has a history of this kind of dumb censorship of clubs. To wit:

Note that several of these rejections involved clubs having to do with religion, and at any rate, the reasons given for rejection are laughable. But the rejections themselves are not: as FIRE argues, these are violations of the First Amendment, citing a Supreme Court decision overturning a college’s rejection of the radical Students for a Democratic Society group. The Court ruled that “denial of official recognition, without justification, to college organizations burdens or abridges [the associational right] implicit in the freedoms of speech, assembly, and petition.”

Yes, the university had “justification” to reject all these applications, but FIRE argues that the criteria it used don’t meet the objective criteria they lay out in the rules, but add subjective factors like “emotional risk” or whether they see the club’s advocates as “sufficiently passionate.” The rejection of religious clubs is particularly offensive, abrogating freedom of religion. And of course arguing against a vegetarian club because the lifestyle is unhealthy is laughable: tell that to a gazillion Indian people!  FIRE makes other arguments, too, but you can read their 12-page letter for yourself. In the net, FIRE asks for Truman State to stop using subjective criteria for evaluating clubs and organization and to recognize the Animal Alliance as a valid club. There’s also an implied threat at the end that should worry the school:

Universities may use objective criteria to grant or deny student groups’ bids for official recognition. But Truman State’s subjective process violates students’ First Amendment rights and results in a double standard, with some controversial groups approved and others ousted. FIRE will continue to monitor the situation and use all the resources at its disposal to ensure a just outcome.

Read: lawsuit, which will cost Truman State a lot of dosh and probably a legal defeat as well.

FIRE gives a contact information to Truman State as well, and I’ll be writing the President an email. It’s time for the school to stop abrogating students’ Constitutional rights. Though this sounds like a small matter, one can’t allow colleges to begin eroding the rights of students in public schools, because this truly is a slippery slope.

CONTACT: Dr. Susan Thomas, President, Truman State University: 660-785-4100; suethomas@truman.edu

 

Penn students deplatform former ICE director

October 30, 2019 • 9:30 am

According to the University of Pennsylvania’s student newspaper, the Daily Pennsylvanian, an event involving acting Immigration and Customs Enforcement (ICE) director Thomas Homan was canceled after Penn students disrupted the proceedings.

The discussion, scheduled to involve several people (see below) was sponsored by Perry World House, self-described as “a center for scholarly inquiry, teaching, research, international exchange, policy engagement and public outreach on pressing global issues.” In other words, it’s a university think tank. A perusal of its website doesn’t indicate that it’s a particularly right-wing organization, but of course if they invite anyone connected with ICE in today’s political climate, they should know what the consequences will be.

Click on the screenshot to read the Daily Penn piece:

An excerpt:

Students wielding signs that read, “Abolish ICE” and “No one is illegal on stolen land,” gathered inside and outside of Perry World House minutes before the “Detention and Deportation from Obama to Trump” event, which was scheduled to take place from 5 p.m. to 6:30 p.m. Before the protest, more than 500 students and alumni signed a petition demanding that Penn cancel the event because of controversial policies Homan implemented when he led ICE.

Note that the sign above suggests that there is no such thing as illegal immigration in the U.S., or, to be sure, in many other countries as well. It’s a call for either open borders or no borders. The article continues:

At about 4:45 p.m., protesters lined the outside of the building and sat in the event room filled with attendees. The students inside were chanting, “No hate. No fear. Immigrants are welcome here” and “Go home Homan.”

An official standing in front of the audience attempted to talk about Penn’s First Amendment rights and the event’s intention over the protesters, but they continued chanting.

At about 5 p.m., the speakers — including Homan, former Philadelphia City Solicitor Sozi Tulante, and former ICE Public Advocate Andrew Lorenzen-Strait — walked on stage as the chanting grew louder. Homan was chuckling and talking to Lorenzen-Strait, who was seated next to him. Fifteen minutes later, the speakers were escorted off the stage by an organizer, who announced the event was canceled.

The students cheered as the speakers left, for the students had won, of course. They got what they wanted: the censorship of one individual who represents a policy and an administration they abhor. And Penn allowed the protestors to win. Where was security? Why didn’t administrators remove those who disrupted the event? This would never have happened at the University of Chicago.

The deplatforming occurred after more than 400 Penn alumni and students had signed this petition demanding that Homan’s appearance be canceled. But, of course, there was more just than an objection to a talk, there were the inevitable DEMANDS. These “demands” followed a declaration that Homan’s appearance was inimical to Penn’s mission:

Penn cannot credibly champion diversity and inclusivity, nor can it ethically profit from the contributions of its immigrant community, while being ambivalent to the anti-immigrant animus Homan’s legacy embodies.

Perry World House, a space that claims to “educate the Penn community and prepare students to be well-informed, contributing global citizens,” bears a responsibility to employ judiciousness when choosing speakers to invite to campus. Selecting Homan, whose work and actions directly oppose the goals and values the university claims to uphold, defies Dr. Gutmann’s pledge to Penn’s immigrant students, staff, and faculty.

In this spirit, we demand that:

1. The invitation extended to Thomas Homan for the event on October 23rd be rescinded and the event be cancelled.

2. Penn reassert its commitment to creating a safe learning environment for undocumented students and refrains from inviting current and past ICE and Customs and Border Protection personnel. [JAC: Note that this bans all employees of a government organization, no matter when they were members]

3. Perry World House institutes an advisory board made up of diverse students, faculty, and staff to help create events that are reflective of the needs of all the Penn community. [JAC: what they mean is “reflective of the ideology of the left-wing students”]

4. Given the uncertainty around DACA, Penn commits to creating an immigrant support fund and paying the DACA renewal fees of students, faculty, and staff.

This is simply the tedious and now-familiar repetition of the claims that a University’s must invite only those speakers who uphold the University’s “values,” characterized here as favoring diversity, inclusivity, and a welcome to all immigrants, legal or not.

In contrast, the University of Chicago (I have to brag here), while having a code of conduct that prohibits discrimination and harassment, does not itself profess any specified set of political or ideological values. True, nearly all professors here (and in most schools) align with the Left, but those are the values of individual faculty. That’s why U of C students cannot credibly claim that a given speaker “violates the values that the University upholds.”

The primary value a university should uphold is the value of seeking truth, and going wherever that search should lead.  That itself mandates nearly absolute freedom of speech, or at least a freedom consonant with the U.S. courts’ interpretation of the First Amendment.

Penn failed here miserably. It’s telling that none of the dozen-plus students who protested were willing to go on record to the newspaper, save one who said almost nothing (see below):

“Before the event even began, chanting by some members of the audience made it impossible to hold a constructive conversation. Since our founding, Perry World House has been deeply engaged with the timely and sensitive issue of immigration,” Perry World House Communications Director John Gans wrote in an email to the DP [Daily Pennsylvanian].

“Members of the Penn community may disagree with a particular speaker at these events, but having conversations about those differences is part of what makes universities such as Penn essential locations for free inquiry, free expression, debate, and dialogue,” Gans added.

College junior Erin O’Malley, who participated in the protest, said she was not surprised the event was quickly shut down.

“There are a lot of people who are passionate at Penn,” O’Malley said. “When all these people come together, things like that can definitely happen and usually does happen.”

The gulf between Gans and O’Malley seems unbridgeable. O’Malley, who seems to represent the general sentiment of protestors, completely fails to understand that there’s any value in listening to someone representing a government or agency you dislike.

Many people hold college administrators responsible for student cluelessness about free speech. And indeed, at places like Oberlin, Evergreen State, and Williams College, that may well be true. But there are too many administrators and faculty touting freedom of speech at too many schools to pretend that college students don’t know about the value of such speech. If college administrators have failed at anything, it’s at disciplining those students who prevent others from speaking.

Shame on you, Penn! Although you’re a private school, you’re also an Ivy League school, and should therfore adhere to the First Amendment. Censoring speakers, or rather allowing students to do that, means you’re not doing your job.

 

Two UConn students arrested for shouting racial slurs, violating a Connecticut “anti-ridicule” law

October 27, 2019 • 9:00 am

This piece in the New York Times reports that two University of Connecticut students were arrested, apparently by campus police, after shouting racial slurs outside a university dormitory. They were charged with violating a state law that prohibits ridiculing individuals based on “creed, religion, color, denomination, nationality or race” (see below)

Here’s the video, which doesn’t show shouting or screaming or taunting, but uttering slurs:

An excerpt from the NYT:

Two white students at the University of Connecticut were arrested by the campus police on Monday night, 10 days after they were captured on video repeatedly shouting a racist slur outside student apartments, the university said.

The students, Jarred Karal and Ryan Mucaj, both 21, were charged with ridicule on account of creed, religion, color, denomination, nationality or race. Their arrests came after the widely shared video drew outrage and calls by students for the administration to take action.

The misdemeanor carries a maximum penalty of 30 days in jail and a fine of up to $50, according to state law. The two were released on personal recognizance and are scheduled to appear in Rockville Superior Court on Oct. 30. Efforts to reach the students Monday and Tuesday were not successful, and it was unclear whether they had retained lawyers.

. . .The investigation by the UConn Police Department found that the men were playing a game in which they yelled vulgar words. As they walked through the parking lot, witnesses heard two of the men switch to shouting a racial epithet, the police said.

Mr. Mucaj later told a campus police officer that after a night of drinking he did not remember saying the slur, “even as a game,” affidavits released on Tuesday said. Mr. Karal said in a statement to the police that “I don’t believe that we had been shouting loud enough for other people to hear us,” according to the affidavits.

“It was not our intent to broadcast what was said to any one person, we were just being immature,” he said, according to the affidavits.

If they face jail time, then they were arrested for violating a state law, not just a campus speech or conduct code. And that law itself violates the First Amendment. Let’s be clear: shouting racial epithets is reprehensible (the “n word” was apparently used). These students should be the recipients of counterspeech and, if they’ve violated UConn’s code of conduct, disciplined.

Remember, though, that the University of Connecticut—a state school—must adhere to the First Amendment. And the students’ speech didn’t violate that amendment since it didn’t constitute personal harassment or defamation, nor had the intent of inciting immediate violence. The speech may have violated the campus code of conduct, as the paper reports:

On Tuesday, Ms. Reitz [a campus spokeswoman] said that she was not permitted by privacy laws to discuss individual cases, but that generally if the university finds a student violated the Code of Conduct, the person is given an opportunity to appeal. “If the finding is upheld, the student could be subject to discipline ranging from probation to suspension or dismissal,” she said.

I’m not sure about the ins and outs of this, but a campus speech code that prohibits speech like this, however reprehensible, is likely unconstitutional. I can see that repeated racial harassment can violate campus norms, but this was not repeated: it was a one-off. Here’s the part of the UConn campus speech code that apparently applies here (page 4):

Harming behavior, which includes, but is not limited to, the true threat of or actual physical assault or abuse and also includes harassment. For the purposes of The Student Code, bullying is considered a form of harassment.

Harassment is the severe or repeated use by one or more students of a written, verbal, or electronic expression, or a physical act or gesture, or any combination thereof, directed at another individual that has the effect of: causing physical or emotional harm to the individual or damage to the individual’s property; placing the individual in reasonable fear of harm to the individual and/or the individual’s property; or infringing on the rights of other University community members to fully participate in the programs, activities, and mission of the University.

The incident above doesn’t seem to violate even these standards, as it isn’t “repeated use” (unless saying the n-word twice is “repeated use”) and wasn’t directed at any individual. Students did claim that this utterance harmed them, but only when they heard it repeated by others or saw the video. And there can be no reasonable “fear of harm” to person or property, nor obstruction of others’ participation in University activities.

Perhaps the campus can find grounds to discipline or even expel the students, but the government has no right to arrest the students and send them to jail. “Ridicule on account of creed, religion, color, denomination, nationality or race” is not a crime. If it were, people could be sent to jail for making fun of religion. Such a “crime” reminds one of the blasphemy laws prevalent in many places, laws that are indefensible because of the difficulty of deciding what constitutes “ridicule.”

I just found a new article in the NYT—an op-ed by lawyer Steve Sanders—that agrees with my view of this issue (click below to read). I’m not sure which Steve Sanders wrote it, but it may be this one, a Professor of Law who teaches constitutional law at Indiana University.

Sanders says that there is indeed a law in Connecticut prohibiting ridicule:

Imagine if the cast members of “The Book of Mormon” could be arrested and prosecuted for ridiculing Mormons. Preposterous, you say?

The idea is not entirely fantastical. A law in Connecticut criminalizes anyone who “ridicules or holds up to contempt” a person or group because of “creed, religion, color, denomination, nationality or race.” Violators are guilty of a misdemeanor and face up to 30 days in jail and a $250 fine.

I can’t access the link, but such a law is clearly unconstitutional and should be challenged in federal court. Sanders goes on:

To be clear: No decent person approves of such use of the N-word. But no sensible person wants to live in a world in which authorities have free rein to lock people up for engaging in what government functionaries decide is inappropriate “ridicule.”

An important purpose of the First Amendment is to protect against such arbitrary use of government power. Indeed, the anti-ridicule statute, at least as applied in this situation, is unconstitutional, for three reasons.

You can read the reasons for yourself, but they boil down to claims that the law is overly vague, that similar campus speech codes and state laws have been struck down repeatedly for violating freedom of speech, and that a similar incident—the uttering of racist statements by the Ku Klux Klan in 1969—was deemed legal by the courts because it didn’t lead to “imminent violent action.”

Sanders is right in his analysis, and right in his conclusion:

In the face of an absurd statute like Connecticut’s anti-ridicule law, it is tempting to extol the value of satire, irreverence and cheek as part of our country’s robust free-speech traditions. But this is not the time for that. Racial, ethnic, sexual and religious slurs exact a social cost. They deprive members of the affected groups of their dignity and inhibit their participation in our democracy as equal citizens.

But it is possible to hold that thought in mind while keeping in mind another thought: that we do not want the police or prosecutors — or university administrators, who too often cave in to public pressure in such situations — wielding the power to decide what constitutes “ridicule” and when someone should be hauled up on charges for engaging in it.

The first paragraph is a bit unclear, because some satire and ridicule is useful not just now, but at any time: I’m specifically thinking of criticism of religion. Does the play “The Book of Mormon” really exact a social cost, or inhibit the participation of Mormons in our democracy? I think not.

But Sanders is correct in arguing that the students’ conduct, while odious, should not be illegal. As Christopher Hitchens, another free-speech absolutist, remarked, “Who will be the decider?” And, if you think about the nature of things that get opprobrium on today’s campuses, you’ll realize the gravity of that problem.

Christianity infests the State Department, violating the First Amendment

October 15, 2019 • 8:15 am

Newsweek and HuffPo report that this was the the U.S. Department of State’s homepage yesterday:

I checked a few minutes ago, and the homepage entry has been changed to this:

HuffPo reports this:

The U.S. State Department’s main homepage was updated on Monday to show a photo of Secretary of State Mike Pompeo with the headline: “Being A Christian Leader.”

The phrase refers to a speech he gave in Nashville last week:

“As believers, we draw on the wisdom of God to help us get it right, to be a force for good in the life of human beings,” Pompeo said in the speech, according to the rest of the remarks on the State Department website. “I know some people in the media will break out the pitchforks when they hear that I ask God for direction in my work.”

The headline on the State Department homepage was changed later in the day to read: “Secretary Pompeo at the America Association of Christian Counselors.” By nighttime, the page was changed completely to a report about sanctions against Turkey.

Americans United for Separation of Church and State slammed the speech and the government website makeover.

“It’s perfectly fine for Secretary Pompeo to be a leader who is Christian. But he cannot use his government position to impose his faith on the rest of us,” CEO Rachel Laser said in a news release. “That is a fundamental violation of the separation of religion and government.”

Newsweek adds this:

Titled “Being a Christian Leader” and promoted in his official government capacity on the homepage for the State Department, religious and civil liberties organizations have decried it as a potential violation of the U.S. Constitution’s intended separation of church and state.

“I keep a Bible open on my desk, and I try every morning to try and get in a little bit of time with the Book,” Pompeo said, describing how the texts sacred to Christians influences his disposition, engagement with others and decisions. “We should all remember that we are imperfect servants serving a perfect God who constantly forgives us each and every day.”

This was clearly a violation of the First Amendment: you don’t get to tout the Secretary of State as espousing Christian values on a State Department homepage. A Muslim politician from Virginia got it right: