Due Process: FIRE-backed lawsuit challenging Dept of Education’s unlawful Title IX mandate voluntarily withdrawn

By  February 21, 2018

WASHINGTON, Feb. 21, 2018 — Today, attorneys representing the U.S. Department of Education joined with attorneys for plaintiffs John Doe and Oklahoma Wesleyan University to ask a federal court to dismiss a lawsuit challenging the now-withdrawn mandate that colleges and universities use the low “preponderance of the evidence” standard of proof in all sexual misconduct cases. The Foundation for Individual Rights in Education sponsored the June 2016 lawsuit as part of its mission to restore due process to our nation’s campuses.

John Doe and Oklahoma Wesleyan charged that the preponderance mandate did not undergo public notice and comment as required by the federal Administrative Procedure Act and was therefore unlawful.

The joint dismissal stipulation states that the Department of Education “will not rely on the withdrawn documents in its enforcement of Title IX.” It also includes the September withdrawal letter from Acting Assistant Secretary for Civil Rights Candice Jackson, which explained that the mandate in the 2011 “Dear Colleague” letter from the Department of Education “led to the deprivation of rights for many students — both accused students denied fair process and victims denied an adequate resolution of their complaints.”

Due process is in crisis on our nation’s college campuses, and with unwise and intrusive policies like those in the 2011 ‘Dear Colleague’ letter, the federal government had pushed colleges and universities to make the problem even worse,” said FIRE Executive Director Robert Shibley. “With the preponderance mandate — and now this lawsuit — out of the way, we look forward to working with all parties to ensure that the important fight to combat sexual misconduct on campus is not tainted by due process abuses.”

Justin Dillon and Christopher Muha of KaiserDillon PLLC represented the two plaintiffs: John Doe (a pseudonym), a former student at the University of Virginia School of Law punished under the low preponderance standard, and Oklahoma Wesleyan University, which did not wish to be forced to use the preponderance standard in its own campus proceedings.

“When we filed this case in 2016, we were prepared for a long fight to force the federal government to follow the law,” said Dillon. “I’m very gratified to see that the current administration, after reviewing our lawsuit, decided to do just that and withdraw the previous administration’s unlawful mandate.”

“Fairness and justice with regard to both society and our students have always been foundational principles of Oklahoma Wesleyan University,” said Everett Piper, president of Oklahoma Wesleyan University. “I know that many institutions opposed this unlawful exercise of federal power, but feared risking the ire of a powerful government agency. I am very glad that Oklahoma Wesleyan was able to take a stand on behalf of our fellow institutions of higher education as well as our nation’s students.”

The case is Doe v. Jackson et al. (originally Doe v. Lhamon et al.), 1:16-cv-01158-RC, and was filed in the U.S. District Court for the District of Columbia on June 16, 2016.

The Foundation for Individual Rights in Education (FIRE) is a nonpartisan, nonprofit organization dedicated to defending liberty, freedom of speech, due process, academic freedom, legal equality, and freedom of conscience on America’s college campuses.

FIRE names America’s 10 worst colleges for free speech: 2018

PHILADELPHIA, Feb. 12, 2018 — Each year, colleges across the country find dubious ways to silence student and faculty expression. In the last year, administrators became embroiled in litigation for telling a student he couldn’t hand out Spanish-language copies of the U.S. Constitution outside a free speech zone, continued a years-long effort to ban a group from campus due to its political viewpoint, and even investigated a professor for a satirical tweet — eventually driving him to resign.
The Foundation for Individual Rights in Education has identified America’s 10 worst colleges for free speech, published today with detailed descriptions on FIRE’s website.
This year’s list includes the following institutions, in no particular order:
  • Rensselaer Polytechnic Institute (Troy, N.Y.)
  • Drexel University (Philadelphia, Pa.)
  • Harvard University (Cambridge, Mass.)
  • Los Angeles Community College District (Los Angeles, Calif.)
  • Fordham University (New York, N.Y.)
  • Evergreen State College (Olympia, Wash.)
  • Albion College (Albion, Mich.)
  • Northwestern University (Evanston, Ill.)
  • University of California, Berkeley (Berkeley, Calif.)
  • Texas State University (San Marcos, Texas)
The institutions on FIRE’s annual list of worst colleges include one university that threatened the funding and editorial process of its independent student newspaper, another that erected fences around campus to keep peaceful student demonstrators out of sight of donors, and yet another that put a student through a months-long investigation and a four-hour hearing for a joke. (That student is still waiting to learn his fate!)
“College administrators, and sometimes even students, are going to greater and greater lengths to justify muzzling expression on campus,” said FIRE Executive Director Robert Shibley. “This type of censorship makes for a sterile environment where lively debate and discussion can’t thrive. The public deserves to know which colleges will defend free expression — and which ones will go to seemingly any length to silence it.”
For the first time, FIRE also awarded a Lifetime Censorship Award to one university that threatens the free speech rights of its students and faculty so often that it deserves individual infamy: DePaul University.
DePaul earned the 2018 Lifetime Censorship Award in recognition of its decade-long rap sheet of suppressing speech at every turn. From denying recognition to a student organization criticizing marijuana laws, to forcing the DePaul Socialists, Young Americans for Freedom, and College Republicans to pay for security in order to host speakers at their meetings and events, to forbidding a group from using the slogan “Gay Lives Matter,” DePaul has staked out a leadership position in stifling campus expression.
FIRE’s 2018 list includes both public and private institutions. Public colleges and universities are bound by the First Amendment. Private colleges on this list are not required by the Constitution to respect student and faculty speech rights, but explicitly promise to do so.
The Foundation for Individual Rights in Education (FIRE) is a nonpartisan, nonprofit organization dedicated to defending liberty, freedom of speech, due process, academic freedom, legal equality, and freedom of conscience on America’s college campuses.

FIRE files lawsuit on behalf of Illinois student detained by police for ‘Shut Down Capitalism’ flyers

Photo: Student Ivette Salazar was detained by campus police for passing out flyers critical of capitalism.

By  January 11, 2018

  • A campus police officer told student Ivette Salazar she has freedom of speech only if Joliet Junior College approves it.

CHICAGO, Jan. 11, 2018 — Joliet Junior College student Ivette Salazar only wanted to do what Americans do every day: exercise her First Amendment right to respond to an opposing viewpoint. For that, campus police detained her, confiscated her political flyers, and told her she has freedom of speech only if JJC gives its approval.

That’s not how the First Amendment works, and that’s why Salazar filed a lawsuit today against JJC. The lawsuit is the latest for the Foundation for Individual Rights in Education’s Million Voices Campaign, which aims to free the voices of one million students by striking down unconstitutional speech codes nationwide.

On Nov. 28, after seeing members of a conservative student group distributing anti-socialism materials on campus, Salazar decided to provide an alternate viewpoint by distributing flyers from the Party for Socialism and Liberation that read “Shut Down Capitalism.” After being reported by campus staff, she was detained by JJC police for approximately 40 minutes, interrogated at the campus police station, and told she could not distribute her flyers because of the “political climate of the country.”

When Salazar asked the officers detaining her about her free speech rights, she said one JJC police officer told her, “If you want to go ahead and post your flyers and burn your crosses, you have to get it approved” by the school. Her flyers were confiscated to ensure that she did not distribute them on campus.
“Debating the merits of economic and governmental systems is core political speech,” said FIRE Director of Litigation Marieke Tuthill Beck-Coon. “Campus police got it backward: The current ‘political climate’ is a reason for more speech, not censorship. If tense political times justified restricting political speech, the First Amendment would be pointless.”
FIRE wrote to JJC President Judy Mitchell on Dec. 4 to demand that the college comply with its legal obligations as a public institution bound by the First Amendment. FIRE did not receive a response to its letter.
“I should be able to express my political beliefs on campus without being detained,” said Salazar. “JCC didn’t just threaten my freedom of speech, but the freedom of speech of every student on that campus. If we can’t have political discussions on a college campus, then where can we have them?”
As part of her lawsuit, Salazar challenges the constitutionality of JJC’s “Free Speech Area” policy. The policy restricts expressive activity to one small, indoor area of campus, requires students to request use of the area five business days in advance, requires students to disclose the purpose of their speech, allows for only two people to use the area at a time, and requires students to remain behind a table. If a student wants to distribute literature while in the area, he or she also has to get the materials approved by administrators ahead of time.
Salazar’s lawsuit also alleges that JJC violated her Fourth Amendment rights by unlawfully detaining her.
Today’s lawsuit was filed in partnership with FIRE Legal Network member and former president of the First Amendment Lawyers Association Wayne Giampietro of Poltrock & Giampietro in Chicago. Giampietro serves as co-counsel with FIRE in the case.
“A public college should be teaching its students the existence and value of the freedoms protected by our federal and state constitutions, not violating those freedoms,” said Giampietro. “The First Amendment protects our most cherished right to speak freely on political matters. It is deplorable that public school employees, paid with our tax money, would detain, interrogate, and seize political materials from a student who is attempting to exercise that right.”
If you are a student who has been censored on campus, FIRE and its Legal Network partners stand ready to protect your First Amendment rights in court. Students interested in submitting their case to FIRE’s Million Voices Campaign may do so through FIRE’s online case submission form. Attorneys interested in joining FIRE’s Legal Network should apply on FIRE’s website.
The Foundation for Individual Rights in Education (FIRE) is a nonpartisan, nonprofit organization dedicated to defending liberty, freedom of speech, due process, academic freedom, legal equality, and freedom of conscience on America’s college campuses.

Black Lives Matter Advocate Terminated: FIRE sues college for ignoring records requests

Saying it was “inundated” with complaints, New Jersey’s Essex County College terminated an adjunct professor after she defended a Black Lives Matter event.

Fox News/Modified from original.
  • Saying it was “inundated” with complaints, New Jersey’s Essex County College terminated an adjunct professor after she defended a Black Lives Matter event in a segment on Fox News.
  • After 174 days and five extensions of its deadline, Essex failed to produce a single record in response to FIRE’s public records request for information about the professor’s firing.
NEWARK, N.J., Jan. 4, 2018 — The Foundation for Individual Rights in Education filed a lawsuit yesterday in the Superior Court of New Jersey against Essex County College for ignoring multiple open records requests in violation of state law. FIRE requested information after an adjunct professor was fired following an appearance on a Fox News segment in which she defended Black Lives Matter.
“This lawsuit is not just about a public institution ignoring its obligation under state law to release certain information to the public,” said FIRE Staff Attorney Brynne Madway. “This suit is also about Essex County College’s responsibility to be transparent about its termination of an adjunct professor who simply voiced her opinions publicly.”
On July 13, FIRE requested information under the New Jersey Open Public Records Act about the questionable termination of Lisa Durden, an adjunct professor at Essex, two days after her June 6 appearance on Fox News’ “Tucker Carlson Tonight.” On the program, Durden debated Carlson on whether it was appropriate for a Black Lives Matter group to hold an event and request that white people not attend.
On June 23, Essex President Anthony Munroe issued a statement about the matter, saying the college was “immediately inundated with feedback … expressing frustration, concern and even fear” about Durden’s views — even though Essex was not mentioned during the appearance. Munroe acknowledged that Durden “was in no way claiming to represent the views and beliefs of the College,” but nevertheless asserted a “right to select employees who represent the institution appropriately,” and terminated her employment.
For more than a month, Essex ignored FIRE’s initial request — as well as a subsequent request — for information about the feedback the college allegedly received. After receiving a letter from FIRE Director of Litigation Marieke Tuthill Beck-Coon, Essex finally responded, asking for the first of five eventual requests for extensions of time to respond to FIRE’s records requests. In November, Essex said it “anticipated” being able to provide a response by Nov. 20.
FIRE hasn’t heard from Essex since.
“Here’s a New Year’s resolution for Essex: Follow state law,” said Madway. “The public deserves to know how Essex administrators handled reaction to a professor’s participation in a political debate.”
Ari Cohn, director of FIRE’s Individual Rights Defense Program, analyzed the First Amendment issues involved in Durden’s firing and said that even if Essex was “inundated” with complaints, its administrators violated her constitutional rights by firing her.
“The law under the First Amendment is clear: A public college cannot terminate a professor simply because she engaged, in a personal capacity, in a debate about matters of public concern and some were offended by her perspective,” he said.
Bruce S. Rosen of McCusker, Anselmi, Rosen & Carvelli, P.C. in Florham Park, N.J. is serving as co-counsel in the suit.
The Foundation for Individual Rights in Education (FIRE) is a nonpartisan, nonprofit organization dedicated to defending liberty, freedom of speech, due process, academic freedom, legal equality, and freedom of conscience on America’s college campuses.

FIRE’s 2017 year in review for student and faculty rights on campus

PHILADELPHIA, Dec. 28, 2017 — From students shouting down an invited speaker and injuring a professor at Middlebury College in Vermont to the violent Berkeley protests in California, the campus free speech debate swept the nation in 2017. Throw in the withdrawal of the federal government’s controversial “Dear Colleague” letter that for over six years threatened the due process rights of students and faculty accused of sexual misconduct, and it’s easy to see why the offices at the Foundation for Individual Rights in Education were anything but quiet this year.
As 2017 comes to a close, FIRE looks back on a year of challenges and triumphs — a year during which more students and faculty members than ever before approached FIRE to help protect their rights.
“Students and faculty shouldn’t have to appeal to an outside organization like FIRE in order to exercise their speech rights or get a fair shake in campus judicial proceedings, but the sad reality is that they do,” said FIRE Executive Director Robert Shibley. “We worked with policymakers to help inform common-sense legislation and administrators to implement speech-friendly campus policies. And we’ll continue this work until student and faculty rights are secured.”
FIRE’s highlights from 2017 include:
  • FIRE’s Individual Rights Defense Program received more than 900 requests for help from students and faculty members across the country in 2017 — more requests than any other year in FIRE’s history. FIRE’s defense of student and faculty rights took us to Howard UniversityFordham UniversityWichita State UniversityUniversity of New HampshireRensselaer Polytechnic Institute, and many more schools this year.
  • In February, FIRE released the first-ever nationwide report on campus Bias Response Teams. These teams encourage students to formally report on one another and on faculty members whenever they subjectively perceive that someone’s speech is “biased.” The report found that 232 public and private American colleges and universities publicly maintained bias response programs, affecting an estimated 2.8 million students.
  • In another win for FIRE’s Stand Up For Speech Litigation Project, the U.S. Court of Appeals for the Eighth Circuit upheld FIRE’s victory at Iowa State University. And in March, the project filed a new lawsuit against the Los Angeles Community College District that aims to free over 150,000 students from unconstitutional free speech zones. The litigation project’s 13 total lawsuits have so far restored free speech rights to more than 270,000 students.
  • In May, Tennessee passed bipartisan legislation that FIRE called “the most comprehensive state legislation protecting free speech on college campuses that we’ve seen be passed anywhere in the country.” The legislation requires institutions to adopt policies consistent with the University of Chicago’s Free Speech Policy Statement, prohibits the use of misleadingly labeled “free speech zones,” bars institutions from rescinding invitations to speakers invited by students or faculty, and more. Campus free speech legislation also passed this year in ColoradoUtah, and North Carolina.
  • In September, FIRE released a first-of-its-kind report on due process at America’s top universities, which found that 85 percent of schools rated received a D or F grade for not ensuring due process rights. Shockingly, 74 percent of top universities do not even expressly guarantee accused students the right to be presumed innocent until proven guilty.
  • Just two days after the due process report was released, the Department of Education announced it would rescind the controversial 2011 “Dear Colleague” letter that threatened the due process rights of students and faculty accused of sexual misconduct on campus. For six and a half years, FIRE led the fight against the misguided letter.
  • Attorney General Jeff Sessions mentioned FIRE’s work in a speech on the importance of free speech at Georgetown University. Sessions highlighted FIRE’s Spotlight database and our lawsuit against the Los Angeles Community College District. The Department of Justice later filed a statement of interest in the lawsuit.
  • In October, FIRE released a groundbreaking survey on free speech that found a majority of students on college campuses self-censor in class, support disinviting some guest speakers with whom they disagree, and don’t know that so-called “hate speech” is usually protected by the First Amendment. The study also found that Republican and Democratic students have different opinions on campus protests, disinvitations, and hate speech protections.
  • FIRE’s So to Speak: The Free Speech Podcast, launched in Spring 2016, released its 50th episode. The bi-weekly show takes an uncensored look at the world of free expression through personal stories and candid conversations. This year the podcast featured Daryl Davis, a black musician who convinces people to leave the Ku Klux Klan through open dialogue; the all-Asian rock band The Slants, who took their free speech fight all the way to the Supreme Court and won; and Nadine Strossen, former president of the ACLU, on the white supremacist rally in Charlottesville.
  • Earlier this month, Emory University became the 11th institution to earn FIRE’s highest, “green light” rating in 2017, bringing the total number of green light institutions to 37.
  • And just last week, FIRE released its annual Spotlight on Speech Codes report, which found that the number of colleges with FIRE’s poorest, “red light” rating for maintaining speech codes that both clearly and substantially restrict freedom of speech is down to 32.3 percent — seven percentage points lower than last year and almost 42 percentage points lower than in FIRE’s 2009 report.
“For the tenth year in a row, the most harmful speech codes are coming off the books throughout the country,” said Shibley. “But the growth of bias response teams, the continued disinvitation of invited speakers and — most alarmingly — the violence on too many campuses show us that we have a lot of work to do in 2018 and beyond.”
The Foundation for Individual Rights in Education (FIRE) is a nonpartisan, nonprofit organization dedicated to defending liberty, freedom of speech, due process, academic freedom, legal equality, and freedom of conscience on America’s college campuses.

Report: Campus speech codes decline for 10th straight year

Emory University earns FIRE’s highest rating for free speech

ATLANTA, Dec. 5, 2017 — Emory University has removed language from its policies that chilled free expression on campus, earning it the highest, “green light” rating for free speech on campus from the Foundation for Individual Rights in Education.
After working to ensure that the policies across all of its departments reflect the university’s commitment to free speech, Emory has become the first green light institution in the state of Georgia — and just the 37th institution nationwide to earn FIRE’s most favorable rating.
“We are excited to welcome Emory to the ranks of green light institutions,” said FIRE Executive Director Robert Shibley. “As one of only 37 schools in the country to earn a green light rating from FIRE, Emory is now positioned to become a national leader in protecting free speech on campus.”

To earn its green light rating, Emory revised its undergraduate conduct code, as well as policies governing campus bias incidents and the use of information technology resources. FIRE worked on the changes with Alexander “Sasha” Volokh, chair of Emory’s Open Expression Committee and a professor at Emory University School of Law.

“Once these policies were brought to our attention, everyone basically agreed that it was a matter of mistaken or outdated language that did not reflect the values of Emory’s Open Expression Policy,” Volokh said. “The credit really belongs to Emory’s administrators, from President Claire Sterk on down, who strongly support open expression on campus — as well as to the University Senate that adopted the Open Expression Policy five years ago.”

“It was a pleasure to work with Emory on these revisions,” said FIRE Vice President of Policy Research Samantha Harris. “We hope other institutions both in Georgia and across the country will follow Emory’s lead and adopt policies that fully protect students’ free speech rights.”

The Foundation for Individual Rights in Education (FIRE) is a nonpartisan, nonprofit organization dedicated to defending liberty, freedom of speech, due process, academic freedom, legal equality, and freedom of conscience on America’s college campuses.

Lenny Bruce-Inspired Play Cancelled at Brandeis: FIRE Responds with Powerful Open Letter

The mission of FIRE is to defend and sustain individual rights at America’s colleges and universities. These rights include freedom of speech, legal equality, due process, religious liberty, and sanctity of conscience—the essential qualities of individual liberty and dignity. FIRE was founded in 1999 by University of Pennsylvania professor Alan Charles Kors and Boston civil liberties attorney Harvey Silverglate.

Brandeis University: Cancellation of Lenny Bruce-inspired play

On Nov. 6, 2017, Brandeis University issued a statement announcing the cancellation of a planned production of the Michael Weller play, “Buyer Beware.” The play was reportedly postponed and subsequently abandoned, in part because it utilized material from the university’s Lenny Bruce archives — material that some within the university found “challenging.” During his lifetime, comedian Lenny Bruce was subjected to six obscenity trials, purportedly for words that today are regularly used in all forms of artistic expression. These prosecutions left Bruce bankrupt and unable to work before dying in 1966 at the age of 40. Given the history of censorship that contributed to Bruce’s early death, a group of free speech advocates wrote to Brandeis President Ronald Liebowitz on Nov. 13, sensitive to the possibility that Bruce’s words may again have been censored and asking him for more details about the cancellation of “Buyer Beware.”

An open letter to Brandeis regarding the cancellation of Lenny Bruce-inspired play, ‘Buyer Beware’

By  November 13, 2017

November 13, 2017

Ronald D. Liebowitz
Office of the President, MS 100
Irving Enclave 113
Brandeis University
415 South Street
Waltham, MA 02453
781-736-3001

URGENT

Sent via U.S. Mail and Electronic Mail (president@brandeis.edu)

Dear President Liebowitz,

We are a group of free speech advocates with a resilient interest in comedian Lenny Bruce’s life and legacy. We write to you today because we are concerned by recent reports that a play scheduled to be staged this month at Brandeis University was postponed and subsequently abandoned, in part because it utilized material from the university’s Lenny Bruce archives — material that some within the university found “challenging.” We call upon Brandeis to reaffirm the principles of freedom of expression, inquiry, and debate upon which any institution of higher education must be based, and to commit itself to engaging with the challenging material in the play by staging it as intended — not censoring it.

It is our understanding that the play, “Buyer Beware,” written by celebrated playwright and Brandeis alumnus Michael Weller, uses excerpts and ideas from Lenny Bruce’s routines as catalysts for a fictional debate about free speech on Brandeis’ campus. Lenny Bruce’s comedy has long been both controversial and groundbreaking. During his lifetime, he was subjected to six obscenity trials, purportedly for words that today are regularly used in all forms of artistic expression. These prosecutions left Bruce bankrupt and unable to work before dying in 1966 at the age of 40. “We drove him into poverty and bankruptcy and then murdered him,” said Vincent Cuccia, one of Bruce’s New York prosecutors. “We all knew what we were doing. We used the law to kill him.”

Americans have since recognized the injustices dealt to Bruce. He was the last comedian to be criminally prosecuted for obscenity in the United States. Today, Bruce is revered as a champion of free speech and First Amendment principles — so much so that he was posthumously pardoned by New York Governor George Pataki in 2003. His life story serves as a cautionary tale of what happens when we censor artistic expression.

Given this history, the undersigned are sensitive to the possibility that Bruce’s words may again be censored. Our unease is amplified by the fact that such censorship may occur at Brandeis University, named after the staunch free speech advocate and United States Supreme Court Justice Louis Brandeis. Our concern is all the greater insofar as the university is the institutional custodian of the Lenny Bruce archives and much of Bruce’s legacy.

A 2004 box set of Bruce’s comedy was titled “Let the Buyer Beware.” Perhaps not coincidentally, “Buyer Beware” is also the title of Weller’s play. Surely when Brandeis accepted the responsibility of preserving Bruce’s archives within its library, it well understood the risks associated with doing so — caveat emptor — and tacitly, if not explicitly, agreed that it would spare Bruce the injustice of committing or enabling his posthumous censorship.

In a statement responding to the cancellation of the fall production of “Buyer Beware,” Brandeis announced that “faculty members considered the challenging issues [the play] raised” and decided that more time was needed to produce the play “appropriately.” The statement goes on to relinquish the university’s responsibility for the play’s subsequent cessation by foisting responsibility upon Weller, who did not approve of this more “appropriate” production, which subsequent reports indicate was not even presented to him. According to a statement from the Dramatists Guild of America and the Dramatists Legal Defense Fund, Weller “has heard only indirectly about the possibility of doing it at ‘a 60-seat black box theatre in Watertown that has some lights, and a budget for one or two professional actors.’”

Numerous reports indicate that the decision to forestall the planned production of “Buyer Beware” comes amid a concerted effort by some Brandeis students and alumni to cancel the play. The campaign was allegedly led by a Brandeis alumna, who reportedly admitted to having never read the play’s script, yet claimed that it “is an overtly racist play and will be harmful to the student population if staged.” Scholars of Bruce’s life know well that attempts at prior restraint are insidious and beget more censorship. Indeed, after Bruce was first prosecuted in one court, additional prosecutions soon followed. “Don’t lock up these 6,000 words,” Bruce pleaded to one New York City judge during a court hearing.

We write to ask for more details about Brandeis’ decision to cancel this month’s production of “Buyer Beware.” What material, exactly, did the university consider too “challenging” for its students and faculty? And why, when an agreement could not be reached with Weller to find a more “appropriate” setting for the play, did the university decide not to stage the production as intended, and instead defaulted to functionally censoring the “challenging” material instead of openly engaging with it?

We call upon Brandeis University to answer these questions in a manner consistent with the principles of freedom of speech to which the university claims to commit itself, principles that are integral components of Lenny Bruce’s and Louis Brandeis’ legacies. If it cannot, we ask you to immediately reverse the decision to cancel this month’s production of “Buyer Beware” and to reinvite Weller to stage it as intended. The play itself presents a direct challenge to the university —  according to The Brandeis Hoot: “If Lenny Bruce came to life right now, for one day, and he was booked for a gig on campus. How would the administration react?”

Again, we urge the university to commit itself to reinviting Weller to stage “Buyer Beware” as intended, thereby defending the very free speech principles for which Lenny Bruce fought throughout his life.

To you, President Liebowitz, we repeat the question and also ask: Did the Lenny Bruce archives end up in the “appropriate” place?

We look forward to hearing from you by Friday, November 17.

Sincerely,

Foundation for Individual Rights in Education

Kitty Bruce
Daughter of Lenny Bruce
Founder, The Lenny Bruce Memorial Foundation

Penn Jillette
Comedian and magician, Penn & Teller

Robert Corn-Revere
Partner, Davis Wright Tremaine LLP
Attorney responsible for successfully petitioning Governor George E. Pataki to grant the first posthumous pardon in New York history to Lenny Bruce in 2003

Ronald K.L. Collins
Harold S. Shefelman Scholar
University of Washington, School of Law
Co-author, The Trials of Lenny Bruce

David M. Skover
Fredric C. Tausend Professor of Constitutional Law
Seattle University School of Law
Co-Author, The Trials of Lenny Bruce

Noam Dworman
Owner, Comedy Cellar

Ted Balaker
Director, Can We Take a Joke?, a film about the life and legacy of Lenny Bruce

Courtney Balaker
Producer, Can We Take a Joke?

Photo: Lenny Bruce Arrest, Examiner Press, 1961, courtesy Wikimedia Commons.

Free Speech & Free Speech Zones on Campus: DOJ files statement of interest in FIRE lawsuit

Kevin Shaw on the campus of Pierce College (Dawn Bowery/FIRE)

WASHINGTON, Oct. 25, 2017 — The Department of Justice on Tuesday filed a statement of interest in a California student’s lawsuit against his college’s free speech zone policies.

In March, Los Angeles Pierce College student Kevin Shaw filed a lawsuit challenging Pierce College and Los Angeles Community College District policies that restrict student free speech rights to tiny “free speech zones.” The lawsuit is part of the Foundation for Individual Rights in Education’s Million Voices Campaign.

“The United States has an interest in protecting the individual rights guaranteed by the First Amendment,” according to the statement of interest, a brief filed by the attorney general expressing the interests of the United States in a pending lawsuit. “The right to free speech lies at the heart of a free society and is the ‘only effectual guardian of every other right.’”

The statement of interest argues that, based on the facts alleged in Shaw’s lawsuit, Pierce College and the district’s policies and practices violate student First Amendment rights and denied Shaw “his right to engage in expressive activity in a public forum.” Shaw is currently awaiting a Nov. 14 hearing on the defendants’ motion to dismiss the lawsuit.

“I am humbled to have the support of the Department of Justice,” said Shaw. “Their statement affirms what I’ve believed all along — that the First Amendment is essential to American progress, and nowhere more so than on a college campus.”

In November 2016, Shaw attempted to distribute Spanish-language copies of the U.S. Constitution and recruit new members for his student group, Young Americans for Liberty, along a main public walkway through campus. As he prepared, he was approached by an administrator who told him that he could not distribute literature outside the campus free speech zone, a tiny area on campus measuring approximately 616 square feet and comprising about .003 percent of the total area of Pierce College’s 426-acre campus.

Shaw was also told he must fill out a permit application to use the free speech zone. He was informed that he would be asked to leave campus if he refused to comply.

“FIRE is grateful for the Department of Justice’s decision to file a statement of interest in our lawsuit,” said FIRE Director of Litigation Marieke Tuthill Beck-Coon. “As the department rightly recognizes, these policies severely restrict the expressive rights of all students on each of the nine district campuses. We cannot allow the First Amendment rights that Kevin Shaw and his fellow students possess to be taken away by administrative fiat.”

The lawsuit was filed on March 28 in partnership with Arthur Willner, a partner at Leader & Berkon LLP, who is co-counsel with FIRE in the case. In addition to challenging Pierce College’s unconstitutional free speech zone and permit requirement, the lawsuit also challenges an LACCD policy that requires the president of each LACCD college to designate at least one free speech zone on their campus. With approximately 150,000 students, the LACCD is the largest community college district in the country.

“This lawsuit presents Pierce with the opportunity to move to the right side of this issue by ending its unconstitutional violation of its students’ First Amendment rights,” said Willner.

If you are a student who has been censored on campus, FIRE and its Legal Network partners stand ready to protect your First Amendment rights in court. Students interested in submitting their case to FIRE’s Million Voices Campaign can do so through FIRE’s online case submission form. Attorneys interested in joining FIRE’s Legal Network can apply on FIRE’s website. https://www.thefire.org/

The Foundation for Individual Rights in Education (FIRE) is a nonpartisan, nonprofit organization dedicated to defending liberty, freedom of speech, due process, academic freedom, legal equality, and freedom of conscience on America’s college campuses.

Million Voices Campaign

Free Speech and College Campuses examined in survey by FIRE

PHILADELPHIA, Oct. 11, 2017 — A new report from the Foundation for Individual Rights in Education finds a majority of students on college campuses self-censor in class, support disinviting some guest speakers with whom they disagree, and don’t know that hate speech is protected by the First Amendment. The study also finds that Republican and Democratic students have different opinions on campus protests, disinvitations, and hate speech protections.
In the most comprehensive survey on students’ attitudes about free speech to date, FIRE measured student responses to questions about self expression, reactions to expression of other students, guest speakers, and hate speech. Some key findings include:
  • 46 percent of students recognize that hate speech is protected by the First Amendment, and 48 percent of students think the First Amendment should not protect hate speech.
  • Most students (56 percent) support disinviting some guest speakers. Democratic students are 19 percentage points more likely than their Republican peers to agree that there are times a speaker should be disinvited.
  • 58 percent of college students think it’s important to be part of a campus community where they are not exposed to intolerant or offensive ideas.
  • Very few students report that they would participate in actions that would prevent a guest speaker event from taking place (2 percent). Even fewer said they would use violence to disrupt an event (1 percent).
  • In open-ended questions, almost half of students (45 percent) identify speech with a racist component as hate speech, and 13 percent of students associate hate speech with violence.
  • In class, 30 percent of students have self-censored because they thought their words would be offensive to others. A majority of students (54 percent) report self-censoring in the classroom at some point since the beginning of college.

FIRE’s survey also found ideological differences in how students feel about free expression, both inside and outside the classroom. Very liberal students are 14 percentage points more likely than their very conservative peers to feel comfortable expressing their opinions in the classroom. Additionally, 60 percent of Republican students think they should not have to walk past a protest on campus, while only 28 percent of Democratic students think the same.

“There is clearly a partisan divide in how students perceive free speech on college campuses,” said FIRE Executive Director Robert Shibley. “This further solidifies the importance of FIRE’s mission. Free expression is too important to become a partisan issue in higher education.”

Additionally, FIRE’s survey found that a majority of students want their schools to invite a variety of guest speakers to campus (93 percent), and 64 percent report changing an attitude or opinion after listening to a guest speaker.

FIRE contracted with YouGov (California), a nonpartisan polling and research firm, to survey 1,250 American undergraduate students between May 25 and June 8. YouGov calculated weights for each response based on the respondent’s gender, race, and age. A copy of the full report, an FAQ, and the toplines and tabulations from YouGov can be accessed here.

The survey project was made possible by a grant from the John Templeton Foundation to conduct polling on campus attitudes, engage in legal and social science research, and mobilize a wider audience on and off campus in the fight for student and faculty rights.

The Foundation for Individual Rights in Education (FIRE) is a nonpartisan, nonprofit organization dedicated to defending liberty, freedom of speech, due process, academic freedom, legal equality, and freedom of conscience on America’s college campuses.