Last week, The Student Life interviewed President Oxtoby on the letter sent by FIRE (Foundation for Individual Rights in Education) As usual, TSL lied, plagiarized and misrepresented the side they disagreed with. Janet Ma, News Associate TSL, gave the false subtitle, 'Group [FIRE] Said To Threaten Legal Action Against 5C's.' (CJ's response from last week)
Erin Royce, Program Associate, FIRE, just posted an article on the FIRE blog responding to Oxtoby's statements.
"The article's sub-headline reads "Group Said to Threaten Legal Action Against 5Cs." As we said before, FIRE does not litigate and has no plans to. In our letter to Walton, we wrote:"
"Pomona President David Oxtoby acknowledges FIRE's commitment to free speech, but also "feels these email notifications of bias related incidents do not suppress free speech at all and that these actions are necessary to publicly condemn the actions."'Publicly condemn the actions'? The emails from Oxtoby, Wood and the like, clearly stated that the act in question 'would not be tolerated'. If you don't tolerate something, you ban it or make an active attempt to stop it. Intolerance of speech is not the same thing as publicly condemning speech.
Just like the Coca Cola debate yesterday, Oxtoby has maneuvered his way around FIRE. Even though FIRE does not litigate, Pomona could be in violation of California's Leonard's Law if they continue to suppress free speech on campus. FIRE will continue to monitor the 5C's for free speech violations and so will we.
Subscribe in a reader
28 comments:
Thanks for all you're doing! I eagerly await the day when we can finally use racial slurs with no remorse or consequences! :p
I suppose anonymous would prefer a tattle tale state in which we turn to the state whenever we've been offended. We have one of those already (though I concede they are getting fewer and fewer with the passage of time). It's called N. Korea. You might want to go with Bruce Cummings next he goes.
If there's speech you don't like, challenge it. Don't be a coward and demand the nanny state administrators come in.
I'm sorry but I think there are plenty of people including me who use racial slurs with no remorse but consequences are another thing so I choose to remain anonymous.
Your sincerity is in question, anonymous. I very much doubt you'd be so inclined to toss around racial epithets even if we successfully dismantled the 5Cs de facto, illegal speech code.
It's more fear of the students' responses because the students are just as willing to limit your speech. In a sense I am more of the southern ignorant conservative type, but too bad I'm supposed to be more liberal.
Charles, I'd like you to explain exactly how the 5C's speech code is illegal, or how it would violate the Leonard Law. I'm not sure that I fully understand how the speech code on the campuses in any way violates students' freedom of speech. Care to elaborate?
Patrick,
I'll direct you to Greg Lukianoff of FIRE. Here is what he has written.
The Leonard Law was passed in the early ’90s in order to combat the rise of speech codes on private campuses, including my alma mater Stanford. Thanks to California Education Code 94367 (known as “the Leonard Law”), the Stanford speech code was overturned in Corry v. Stanford, Case No. 74309 (1995) (that opinion is, for some reason, unpublished, a practice in California that keeps important decisions from becoming binding precedent—a scandalous practice, in my opinion, but a topic for another time).
The Leonard Law reads:
(a) No private postsecondary educational institution shall make or enforce any rule subjecting any student to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when engaged in outside the campus or facility of a private postsecondary institution, is protected from governmental restriction by the First Amendment to the United States Constitution or Section 2 of Article 1 of the California Constitution.
(b) Any student enrolled in a private postsecondary institution that has made or enforced any rule in violation of subdivision (a) may commence a civil action to obtain appropriate injunctive and declaratory relief as determined by the court. Upon motion, a court may award attorney’s fees to a prevailing plaintiff in a civil action pursuant to this section.
That's all good and well, I know what Leonard's Law is and can find the text of it without a problem using Google. What I asked was why you think the speech codes on the claremont colleges would be in violation of this law. That was where I was uncertain of what exactly you were arguing against.
Patrick,
The Leonard Law extends First Amendment Rights to private colleges like CMC. The federal govt. cannot create any speech codes or structural limits to free speech. The same rule applies for colleges.
I think you have a fundamentally flawed perception of what free speech and the first amendment entail. The Supreme Court has time and again ruled that the freedom of speech guaranteed by the first amendment is NOT absolute by any standards. Now if you'll point me to the aspects of the speech codes on any of the 5C's that limit free speech I would gladly hear your argument as to why that would come under Leonard's Law.
No one said that the 5C has speech codes (knock on Wood (pun intended)). We were pointing out that they are illegal.
Yes, but the SC has found speech codes, per say at a state of federal level to be unconstitutional. They made a compromise with the FCC and other censorship issues for broadcasting.
Patrick,
I have studied the First Amendment extensively for three years. You are absolutely wrong on your characterization.
Every single time that a speech code has come up under review it has been struck down as unconstitutional.
What precedent are you relying on?
Aditya,
In the very first post, it was said that "Even though FIRE does not litigate, Pomona could be in violation of California's Loenard's Law if they continue to suppress free speech on campus." Perhaps asking about speech codes was the wrong way to phrase it, but what I was intending to ask is how the actions of any of the 5C's, or more specifically Pomona, constitute a violation of free speech. I have yet to be given one concrete example of how free speech has been illegally abridged by Pomona or any of the 5C's.
Charles,
As for my characterization of Supreme Court decisions concerning free speech, I again contend that it is you who are misinformed.
"The right of free speech is not absolute at all times and under all circumstances." -Chaplinsky v. NH
"There are certain well-defined and narrowly limited classes of speech the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words - those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." -Chaplinsky v. NH
Beauharnais v. Illinois similarly allowed the banning of so called "hate speech" directed at the black community as a whole, on the grounds that there is no fundamental difference between libel directed at one person and libel directed at an entire group or class of persons.
And those are just a couple of the cases where the SC has consistently ruled that the right of free speech is not absolute. It would be prudent to note that libel laws are unequivocally accepted, as are laws concerning pornography, other forms of obscenity, and vulgarity. The right to free speech, is not in any sense of the word absolute.
I would also like to take a moment to point out the philosophical underpinnings of the 1st Amendment's guarantee to free speech.
The philosophical development of the right to free speech centered largely upon the idea that in a free marketplace of ideas, where everyone can express themselves fully, the good ideas will prevail and the bad ones will die out. This is something the members of this blog should understand given their commitment to free market economics.
Now the 1st amendment has been largely interpreted to prohibit prior restraint and to prohibit punishment for expressing a particular point of view after the fact. If you can show me one instance where anyone has been subjected to prior restraint by any policy of Pomona College, or has been subjected to any sort of punishment due to their speech, then I will gladly accept your contention that Pomona could be held liable under Leonard's Law.
Patrick,
Please don't take this the wrong way, but you are wrong on everything you cite.
Cohen v. California overruled Chaplinksky's prohibition of fighting words because fighting words have to be directed to a "particular individual." This standard of "face-to-face" communication was narrowed still further in Goodwin v. Wilson in which the Supreme Court invalidated Goodwin's conviction even after he said that he was going to kill the police officer!
Moreover, Brandenburg and R.A.V. completely reversed much of the holding of Beauharnais. In Bradenburg v. Ohio, the Court defended the speech of a KKK man who used derogatory language against blacks and Jews and burned crosses. The Court ruled that Bradenburg's conduct was protected speech.
In R.A.V. v. City of St. Paul (1992) the Court unanimously struck down the St. Paul Bias-Motivated Crime Ordinance, which provided, "whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of misdemeanor."
(We're not talking 'foxy lesbian' here, folks. We’re talking some very bad men.)
In California, the more applicable case would concern the 1992 case of Stanford in which the California State Superior Court disagreed with Stanford and granted students at private institutions the same First Amendment protection of speech made outside of Stanford's campus.
I’d be willing to wager that Pomona’s current position of speech codes is unconstitutional.
Furthermore, I think it’s also questionable from a contract point of view if Pomona College claims to offer free speech and then doesn’t deliver. There might be a lawsuit in that breech of contract.
Cohen v. California did not overrule Chaplinsky, but it did significantly limit it when it comes to fighting words. Charles's characterization is basically right. Fighting words have to be aimed at someone--that it is, they have to be words that might lead a reasonable person to fight.
In R.A.V. v. St. Paul, Scalia (who wrote the opinion) argues that you can prohibit fighting words generally but that you can't discriminate among fighting words so as to weed out certain ideas. So you can't say fighting words about Republicans are illegal but fighting words against Democrats are not--you have to just ban fighting words generally. Here of course, the issue is hate speech. "Hate speech" hardly qualifies has fighting words in most circumstances. And when it does, you can't ban it for the content (i.e., the "hate"), you can only ban it for its fighting element.
If Pomona were to punish students for speech for being hateful, it would be illegal under the Leonard Law. One could even make a case that it would be unconstitutional given how much federal dollars private schools take.
What's really at issue is the punishment of such speech, not the "prior restraint" (which is really about the press, not speech generally).
The other thing we should not is how limited libel laws can be. Under New York Times v. Sullivan and subsequent cases, you can only punish libel that is made with "actual malice." That is, you make false comments you know to be false or you make them with total disregard for what is true. This really doesn't cover opinions as expressed in hate speech.
Of course, we are not concerned with defending hate speech as it, but we believe the move to content regulations are very dangerous. What some students judge "hateful" or "harassment" often turns out to be a legitimate political opinion p.c. hacks get offended by. Think about things that are said about Islamic radicals for instance.
Not all of the Founders really thought that the best ideas would prevail in the "market place of ideas"--God knows they rarely do. (This concept, by the way, was developed later anyways.) But they did believe it was an important way for a republican people to deliberate on ideas and important check against tyranny.
But the P.C. Nazis are so smug and confident in the triumph of their ideas that they are ready to close down the market and force them on everyone else. The illiberal character nature of the tactics, should make everyone skeptical about the quality of their ideas.
Charles,
Don't take this the wrong way, but your argument shows (1) a fundamental lack of understanding of the cases you cited, and (2) a fundamental lack of understanding of my argument.
(1)Cohen v. CA didn't overrule Chaplinsky. In Cohen it was a man with the words "Fuck the Draft" written on his jacket and the court found that no one individual could feel personally attacked by such a display of speech, and that you cannot proscribe certain words, such as fuck, because that would fundamentally change the message of his speech. It did not, by any means overrule a prohibition of fighting words. Furthermore, Cohen is factually distinguishable from any cases on the 5C's. Racial slurs by all means, regardless of when they are being used, are often interpreted by many as being directly offensive to the individual, regardless of whether they were directed at a specific individual or the race of the individual as a whole.
Moreover, Brandenburg also didn't reverse Beauharnais. Rather, it refined the previously developed "clear and present danger" test so that speech which was directed at inciting imminent lawless action and which was likely to do so was not protected under the 1st Amendment. While this did expand the freedom of speech, it still kept a limit on what was and wasn't constitutionally protected.
And R.A.V struck down the ordinace based on equal protection grounds, not because it was unconstitutional to outlaw hate speech. It struck down the ordinance because it was unconstitutional to outlaw only certain types of hate speech, such as that directed at race, creed, religion and gender.
None of the cases you cited gave complete and open access to unfettered free speech. They all acknowledged that there must be certain limits on that particular right. To quote R.A.V. v. St. Paul:
"From 1971 to the present, however, our society, like other free but civilized societies, has permitted restrictions upon the content of speech in a few limited areas, which are 'of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality'"
and in regards to point (2):
My argument has never been with regards to the specifics of the first amendment. The only thing that I was attempting to establish is that the Supreme Court has continually acknowledged that free speech is not absolute.
And for what I believe is now the 5th time, could you please point out to me how any policy Pomona College in any way violates students' right to free speech? I acknowledge that Leonard's law exists, and that it applies all common decisions with respect to the speech clause of the 1st Amendment to all private colleges in California. We can stop talking about this. Just show me where, how or when Pomona's policy has violated the 1st amendment rights of students. Or can you? Because given the fact that this is the 5th time I've asked, I'm seriously beginning to doubt that you can.
Patrick,
See my previous post. Posting something on a white board or a flyer or whatever is not fighting words. Fighting words would have to involve making it directly to someone's face, for all practical purposes.
Banning certain messages and requiring us to get approvals for what we post on campus are examples of some of the illegal things the colleges do (and we all know these measures are based on content, not constitutional "time-place-manner" regulations).
Also, R.A.V. was NOT ruled on the 14th Amendment equal protection clause. You correctly understand the logic of the case, but it is ruled on the very nature of the First Amendment and free speech. It is the targeting of content that makes it a violation of the 1st.
Scalia gives this example: "the government may proscribe libe; but it may not make the further content discrimination of proscribing only libel critical of the government."
It's "content discrimination" that the colleges specialize in.
Anyways, I don't want to be rude, but your own error in understanding R.A.V. should at least give you humility before you attack Charles for having a "fundamental lack of understanding" concerning these cases.
Dan already took care of this one for me. Thanks chief!
On the whole Leonard Law thing, I never said that Pomona's policy violates it. It certainly chills speech and that violates the basic contract all Pomona students sign.
As for a "fundamental lack," I'll let the four books I helped research with a Harvard Law school professor speak for itself.
I should also point out that while R.A.V. was unanimous, this was because they all believed the law in question was overly broad. Four of the justices concurred to say once something was classified as unprotected speech (like fighting words), you could indeed discriminate among them. So the concept outlined by Scalia is certainly debated--though I believe he is correct on the the matter, and thankfully a majority agree (for now).
Daniel,
My mistake concering RAV. I made a poor choice in wording when I said it was decided on the grounds of equal protection, but you understand the distinction I was trying to make. Perhaps I may have been too hasty in writing my post, and I let my words get ahead of me, but as you yourself acknowledge I "correctly understand the logic of the case."
As for Charles' lack of understanding, you yourself made corrections to his post. Not only that, but given the context of the argument that I have been making (see below) the way Charles framed his arguments implied that free speech is in many sense absolute. For someone who has spent 3 years researching the 1st amendment, and who has researched 4 books with a Harvard professor on the 1st amendment, perhaps it wouldn't be too much to expect better?
As for my actual argument, I never wished to engage in a case by case argument of the niceties of Supreme Court decisions. My argument, and ultimate point, was that the right to free speech guaranteed by the 1st amendment is NOT absolute. This is something that I think we all can agree upon. There are certain limits to speech that the government may enforce (such as the time place manner regulations you mentioned.)
Now, finally, and for the last time. Can one of you give me a concrete example of Pomona College in any way suppressing free speech? This is my sixth and final time asking. If you can't give me any examples, I'm just going to assume that you were intentionally Pomona bashing when you said that "Pomona could be in violation of California's Leonard's Law if they continue to suppress free speech on campus." I'll admit that some of the actions of the other colleges (like Dean Wood and the White party) could be construed as violations of free speech, but I have yet to be informed of a single instance of this happening on Pomona.
If your argument is that free speech is not absolute, then say it is.
I agree it isn't. But that doesn't mean that we shouldn't be as zealous as we've been in making sure that they don't make that leap into punishing offensive speech.
You have got to be kidding me.
"The Supreme Court has time and again ruled that the freedom of speech guaranteed by the first amendment is NOT absolute by any standards."
"'The right of free speech is not absolute at all times and under all circumstances.'-Chaplinsky v. NH"
"And those are just a couple cases where the SC has consistently ruled that the right of free speech is not absolute."
"The right to free speech, is not in any sense of the word absolute."
"None of the cases you cited gave complete and open access to unfettered free speech."
And here's the kicker
"My argument has never been with regards to the specifics of the first amendment. The only thing that I was attempting to establish is that the Supreme Court has continually acknowledged that free speech is not absolute."
Every single one of those quotes came from my previous posts, all of them from posts before this one and the one immediately preceding it.
As for zealously making sure Pomona doesn't leap into punishing offensive speech, I never suggested you shouldn't. I agree that it is entirely necessary to zealously safeguard the freedoms we are entitled to. But you weren't merely zealously safeguarding freedom of speech. You made an open accusation that Pomona college had been, is and will continue to be in violation of Leonard's Law, and have as of yet offered up absolutely no proof that this is true. If you spent a little more time reading my posts and a little less time trying to prove your knowledge of the 1st amendment maybe you would have noticed that this has been my point all along. As far as I'm concerned, unless you can come up with some proof of actual violations of free speech by the Pomona College administration or faculty, this discussion is over.
Patrick,
I was arguing that the Court cases you mentioned are more complicated than you've made them appear.
Dan has also established that, too.
Your suggestion that freedom of speech is not absolute is self-evident. Libel laws, for instance?
But the precedents you use would never be used in an actual court of law given their questioned nature. To use them to argue that freedom of speech is not absolute is unfair, to say the least, given we've talked exclusively about speech of a supposedly hateful nature, which is clearly protected under the Constitution.
Moreover, I'm pretty sure that that speech may not be chilled in any effort to "enforce any rule subject any student to disciplinary sanctions."
Almost implicit in the creation of those official statements is the threat of disciplinary action. When two Pomona College students were threatened by the Dean of Women after they were talking about the QROC "bias related incident" that wasn't an attack at all, they were forced to report to the dean of students office. I've blogged about this already. I would argue that's a violation.
Moreover, I would argue that Pomona College's guarantee of free speech and its numerous commencement and convocation addresses promising just that make it liable for a lawsuit every time it publishes a statement about a student's speech.
If your argument was that the Court cases I mentioned are more complicated than I made them seem, then say so. You see, throughout my arguments I was very clear as to what I was trying to establish. You simply tried to disagree with me and never established that you showing the complexity of free speech.
As for how I used the cases, I disagree that my use of them was unfair. While the specifics of the case concerning what standards the court uses are assuredly complex, I never used the complexities to establish that free speech is not absolute. I used direct quotes from the cases themselves where it explicitly said that free speech is not absolute. Those quotes themselves have not been overruled, the specific tests and precedents set by the cases have been.
And it's good to finally see some examples of what Pomona has done that affects free speech of students on campus. It only took my asking seven separate times to get to this discussion.
Could you possibly link me to the blog you posted about the QROC bias related incident and the students being called into the Dean of Women's office? I'd like to read what happened and what you said about it.
As for the bias related incident, the only bias related incident on Pomona campus that I've received any notice about was the fire extinguisher in the QRC, which surely doesn't qualify as speech (or a bias related incident to be honest).
I think I was more than clear by explaining the actual context of the lines you cited. Lines by themselves don't have the force of law, after all, and you can cherry pick out quotations that will suit your ends.
I very much disagree with your characterization that the phrases themselves haven't been overruled. If they haven't been overruled, they surely have been undercut by all that has happened since as Dan already made clear and which I echoed.
I'm sorry, but I don't feel as if we need to constantly have the same dialogue on this blog. You are more than welcome to use the Lijit function of this blog.
The incident I'm referring to is one that I covered for this blog. You can read about it here.
http://www.claremontconservative.com/2008/03/on-mandatory-tolerance-marching-and.html
Patrick,
My apologies if I was not clear about what I think would violate the law. I checked out of this conversation for awhile.
If a student posted something on say his white board and were punished for it under Pomona's harassment rules, this would be a rule in violation of the Leonard Law and freedom of speech.
Also, if some sign was not approved for posting, then I believe this would violate the law. So the process of seeking approvals to me is already suspect--since nothing is regulated for time-place-manner purposes and is only restricted if it is "offensive." But it would take a specific instance to make the regulation illegal. I don't think the approval process, on its face, is illegal--though I could only see it being exercised illegally.
Post a Comment