Stand Up for Speech Project
Robert Corn-Revere, Partner
Davis Wright Tremaine
Catherine Sevcenko, Litigation Coordinator
Foundation for Individual Rights in Education
Today’s Session:
Overview
 Why The Stand Up for Speech project is
necessary
 Suits We Have Filed
 Modesto
 Hawaii-Hilo
 Iowa State University
 Ohio State University
 Chicago State University
 Citrus College (California)
The Problem
The Problem
The Problem

The Goal:
Yale’s Woodward Report
Report of the Committee on Freedom of
Expression at Yale:
The primary function of a university is to discover
and disseminate knowledge by means of
research and teaching … The history of
intellectual growth and discovery clearly
demonstrates the need for unfettered freedom,
the right to think the unthinkable, discuss the
unmentionable, and challenge the
unchallengeable. To curtail free expression
strikes twice at intellectual freedom, for whoever
deprives another of the right to state unpopular
views necessarily also deprives others of the right
to listen to those views.
– Committee on Freedom of Expression at Yale,
1975
Speech at Public Colleges
College and University administrators have
forgotten (or don’t want to admit) that “the
precedents of [the Supreme] Court leave no room
for the view that, because of the acknowledged
need for order, First Amendment protections should
apply with less force on college campuses than in
the community at large. Quite to the contrary, ‘the
vigilant protection of constitutional freedoms is
nowhere more vital than in the community of
American schools.’” Healy v. James, 408 U.S. 169
(1972).
United States Supreme Court
Speech Codes: What are
They?
 FIRE defines speech codes as
any campus regulation that
punishes, forbids, heavily regulates,
or restricts a substantial amount of
protected speech, or what would be
protected speech in society at large.
 Wide variety of restrictions
 Free speech zones, civility policies,
posting policies, IT policies…
 Most common type?
Harassment policies.
Florida State University
“Threats”
• University of Wisconsin Stout's police
chief removed this poster with a
picture of Firefly actor Nathan Fillion
and a quotation from the show
from outside the office door of
Professor James Miller
• The university's threat assessment
team was activated, and Miller's
academic dean called him in to
discuss the threat assessment team's
"concerns”
Miller’s Rejoinder … also removed
It took national media and the
outrage of Firefly fans to get
the University of Wisconsin
Stout to back down.
Threats: "those statements
where the speaker means to
communicate a serious
expression of an intent to
commit an act of unlawful
violence to a particular
individual or group of
individuals." Virginia v. Black,
538 U.S. 343, 359-60 (2003).
What Is the Supreme Court’s
Definition of Harassment in
an Educational Setting?
 Harassment: targeted conduct that is "so severe, pervasive, and
objectively offensive that it effectively bars the victim's access to
an educational opportunity or benefit." Davis v. Monroe County
Board of Education, 526 U.S. 629, 633 (1999).
McCauley v. University of the Virgin Islands
618 F.3d 232 (3d Cir. 2010)
 Policy prohibiting speech that causes “emotional
distress”
 Policy forbidding “offensive” or “unauthorized”
signs
 policy prohibited “any act which causes …
mental harm or which … frightens, demeans,
degrades or disgraces any person”
 Third Circuit: “desire to protect the listener cannot
be convincingly trumpeted as a basis for
censoring speech for university students”
Van Tuinen v. Yosemite Community
College District, (E.D. Cal.)
 Limited free speech to a 600 square foot area that
could only accommodate two students at a time;
 Required 5 days notice, a written application, and
submission of a copy of the applicants student ID;
 Failure to comply would result in “possible punitive
action, including, but not limited to, termination of
the program in process; denial of further use of Free
Speech Areas; Discipline; Probation; Suspension;
Expulsion and/or Removal from campus.”
 Each student could only use the Free Speech Zone
for 8 hours per semester.
How bad was this Free
Speech Zone?
 If all 17,000 Modesto students wanted to exercise
their free speech rights in the same semester,
each would be allocated 2.57 minutes.
 That’s the equivalent of:
 One rotation of a ferris wheel (56m diameter);
 The time recommended to answer 2 reading
comprehension questions on the SAT (and move to
the third);
How bad was this Free Speech Zone?
Legal Challenge to MJC
Free Speech Zone
 Robert Van Tuinen was told he could not distribute
copies of the Constitution on the Modesto Campus
on Constitution Day (September 17).
 FIRE secured the services of Davis Wright Tremaine,
a national law firm, to represent Van Tuinen in a
lawsuit.
 DWT filed a complaint in federal court in California
challenging the constitutionality of YCCD’s policies
and seeking damages for Van Tuinen.
 As part of the settlement, YCCD had to revise its
speech policies completely and pay $50,000 in
damages and attorney’s fees.
Speech Codes in Court
 Courts have consistently struck down campus
speech codes in cases dating back more than
two decades
 Codes are usually invalidated for two reasons:
 Vagueness: The code insufficiently specifies what
kind of speech is prohibited
 Overbreadth: The code prohibits constitutionally
protected speech
Speech Code Defeats
McCauley v. University of the Virgin Islands, 618 F.3d 232 (3d Cir. 2010) (invalidating university
speech policies, including harassment policy);
DeJohn v. Temple University, 537 F.3d 301 (3d Cir. 2008) (striking down sexual harassment
policy);
Dambrot v. Central Michigan University, 55 F.3d 1177 (6th Cir. 1995) (declaring university
discriminatory harassment policy facially unconstitutional);
University of Cincinnati Chapter of Young Americans for Liberty v. Williams, No. 1:12-cv-155
(S.D. Ohio Jun. 12, 2012) (invalidating “free speech zone” policy);
Smith v. Tarrant County College District, 694 F. Supp. 2d 610 (N.D. Tex. 2010) (finding university
“cosponsorship” policy to be overbroad);
College Republicans at San Francisco State University v. Reed, 523 F. Supp. 2d 1005 (N.D. Cal.
2007) (enjoining enforcement of university civility policy);
Roberts v. Haragan, 346 F. Supp. 2d 853 (N.D. Tex. 2004) (finding university sexual harassment
policy unconstitutionally overbroad);
Bair v. Shippensburg University, 280 F. Supp. 2d 357 (M.D. Pa. 2003) (enjoining enforcement of
university harassment policy due to overbreadth);
Booher v. Board of Regents, Northern Kentucky University, 1998 U.S. Dist. LEXIS 11404 (E.D. Ky.
Jul. 21, 1998) (finding university sexual harassment policy void for vagueness and
overbreadth);
The UWM Post, Inc. v. Board of Regents of the University of Wisconsin System, 774 F. Supp.
1163 (E.D. Wis. 1991) (declaring university racial and discriminatory harassment policy facially
unconstitutional);
Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989) (enjoining enforcement of
university discriminatory harassment policy).
Solution?
Stand Up for Speech Project
 Eventually file (and keep
filing) in every circuit;
 Force schools to abandon
unconstitutional policies
through settlement or
litigation;
 Change risk management
assessment to attach a cost
to ignoring the First
Amendment;
 Empower students.
Burch v. University of Hawaii-Hilo
Burch and another student
were stopped from distributing
Constitutions in the center of
a student organization fair;
Burch was told to protest NSA
spying in the Free Speech
Zone “because it’s not the 60s
anymore.”
“These principles acquire a special significance in the university setting, where the
free and unfettered interplay of competing views is essential to the institution's
educational mission.” Doe v. Michigan, 721 F. Supp. 852 (E.D. Mich. 1989).
Burch v. University of Hawaii-Hilo
“I thought that with the
extremely overbroad policies
in place, trying to make a
difference was impossible, but
I was wrong. When we go to
college, we go there to grow
as a person both intellectually
and individually, but we can't
do these things when our
freedoms are not protected.”
― Merritt Burch, Plaintiff.
Burch v. University of Hawaii-Hilo
“Since the filing of the lawsuit, the
university and the students, through
their respective attorneys, have
engaged in productive discussions
to resolve the lawsuit, including
exploring possible permanent
changes to university policy and
practices regarding speech and
assembly on campus. The university
hopes to resolve the lawsuit with the
students.
UH Hilo affirms the rights of its
students to engage in free speech
and other expressive activity
guaranteed by the First
Amendment.” – A University of
Hawai’I news release.
Smith v. McDavis (Ohio
University)
OU administrators told Smith
and other students not to wear
an t-shirt with the phrase “We
get you off for free” because it
“objectified women” and
“promoted prostitution.”
OU’s Student Code of Conduct
forbids any “act that degrades,
demeans, or disgraces”
another
“Nor could the University proscribe speech simply because it was found to be
offensive, even gravely so, by large numbers of people.” Doe v. Michigan, 721 F.
Supp. 852 (E.D. Mich. 1989) (citing four Supreme Court cases).
Smith v. McDavis (Ohio
University)
“I started paying attention to
what the university does and
what its administrators say, and
I realized that we live in a
climate that’s very unfriendly for
expressing a contrary opinion.
Most people don’t know about
the specific section of the
Code of Conduct that punishes
unpopular speech, but they
don’t have to: unpopular
speech is discouraged at every
turn.” ― Isaac Smith, Plaintiff.
Smith v. McDavis (Ohio
University)
“We want to be clear that
Ohio University
administrators never
directed the students or the
student organization to not
wear the T-shirts mentioned
in the lawsuit, and no
student misconduct action
was ever threatened or
taken,” ― Katie Quaranta,
Spokeswoman, Ohio
University.
Gerlich v. Leach (Iowa State
University)
ISU not only rescinded approval for
the ISU NORML official t-shirt, but it
adopted and enforced new
regulations specifically designed to
restrict NORML ISU’s political
advocacy.
In both 2013 and 2014, ISU rejected
other t-shirt designs because they
allegedly associated the ISU name
with promoting “dangerous, illegal
or unhealthy products, actions or
behaviors.”
“[T]he University never articulated any principled way to distinguish sanctionable from
protected speech. Students of common understanding were necessarily forced to
guess at whether a comment about a controversial issue would later be found to be
sanctionable under the Policy.” Doe v. Michigan, 721 F. Supp. 852 (E.D. Mich. 1989).
Gerlich v. Leach (Iowa State
University)
“College campuses have
and always should be a
catalyst to new and
progressive ideas. But
recently at ISU, we've been
made to feel like voicing
our opinions and beliefs is
wrong when it’s absolutely
not. It's definitely been a
long road and we look
forward to reaching an
understanding with those
involved.” ― Paul Gerlich
and Erin Furleigh, Plaintiffs.
Gerlich v. Leach (Iowa State
University)
“In sum, while there is a First
Amendment right to
comment about the
University, there is not a First
Amendment right to use the
goodwill inherent in
trademarks to misrepresent
the University’s position. That
is what the clarification of
Iowa State University’s
Guidelines for University
Trademark Use by Student
and Campus Organizations
was intended to assure.” ―
Keith N Bystrom, Associate
Counsel, Iowa State
University.
Sinapi-Riddle v. Citrus College
 Challenges three unconstitutional policies:
 Free Speech Area that the school agreed
to abolish after settling a similar lawsuit in
2003 and reinstituted to comprising 1.2% of
campus in 2013;
 An administrator threatened SinapiRiddle with removal from campus for
seeking a student’s signature on a
petition outside the FSA.
 Requirement that student organizations to  Harassment policy is so broad that
a student was investigated under it
undergo a two-week approval process for
for giving another student a
any expressive activity; and
Valentine’s Day gift.
These cases stand generally for the proposition that the state may not prohibit broad
classes of speech, some of which may indeed be legitimately regulable, if in so doing
a substantial amount of constitutionally protected conduct is also prohibited.
Sinapi-Riddle v. Citrus College
“When Citrus College
threatened me for exercising
[my First Amendment rights], I
was appalled that a college
would think that it has such
powers. The college
intimidated me and tried to
make me sound as if I had
done something wrong. The
exercise of free speech
should never require a
bureaucratic process or
someone else’s approval.” ―
Vinny Sinapi-Riddle, Plaintiff.
Sinapi-Riddle v. Citrus College
Citrus College has not had
any public reaction since
the suit was filed.
Beverly v. Chicago State
University
CSU administration determined to to silence
faculty members Phillip Beverly and Robert Bionaz
for their blog, the CSU Faculty Voice, which
provides critical commentary on mismanagement
at the
university.
After demand to shut down blog for trademark
violation failed, the school adopted a broad and
poorly defined “Cyberbullying Policy” as a tool of
censorship.
Bionaz has been charged under this policy for
telling the university spokesman to “shut his yap” in
a face-to-face conversation.
Beverly v. Chicago State
University
“It appears that only a court will be
able to protect the rights of my
campus community to express
themselves without fear of
retaliation. It is a tragedy that the
valuable time of the federal courts
would be consumed answering
questions that have long since
been answered. My commitment
to the First Amendment is too strong
to have let the behavior of the
Chicago State University
administration pass.” ― Professor
Phillip Beverly, Chicago State
University.
Beverly v. Chicago State
University
"The very fact that the
two faculty members in
question are so
concerned about how
our efforts to put an end
to bullying on our
campus will affect them is
in and of itself very
telling.” ― Wayne
Watson, President,
Chicago State University.
How You Can Help!
 1. Join FIRE’s Legal Network
 2. Consider acting as local
counsel
 3. Let us know if you hear of
students or faculty being
penalized for their expression
Thanks for attending!
 “If there is any fixed star in our constitutional
constellation, it is that no official, high or petty,
can prescribe what shall be orthodox in politics,
nationalism, religion, or other matters of opinion,
or force citizens to confess by word or act their
faith therein. If there are any circumstances
which permit an exception, they do not now
occur to us.” West Virginia State Board of
Education v. Barnette 319 U.S. 624, 642 (1943)