Why The Harvard Law Review Comment Defending Campus Speech Codes Matters

Today the good folks over at the Law Librarian Blog (LLB) picked up on the recent kerfuffle surrounding a student-authored case comment that appeared in the April issue of the Harvard Law Review. The HLR comment -- published unsigned, per the journal's policy -- strongly criticized the United States Court of Appeals for the Third Circuit's 2008 decision to overturn Temple University's speech code, arguing that speech codes are constitutional and that the case (DeJohn v. Temple University, 537 F.3d 301 (3d Cir. 2008)) was wrongly decided.

Kelly Sarabyn, my colleague at the Foundation for Individual Rights In Education, tore the comment to pieces in an extensive post earlier this month. Kelly's response emphasized that the comment failed to cite a single case in the 20 year history of speech code litigation, misrepresented and ignored relevant Supreme Court holdings, and matter-of-factly asserted that college students should have even fewer rights to speak freely than grade school students or private employees in professional offices.

LLB also cites a blog by a former FIRE president and our current legal director to conclude that "obviously FIRE is trying to minimize the impact the comment may have by all means possible." And LLB is absolutely right -- though they did miss the funniest blog post of all on the comment, published over at Riley Waggman's Diploma Mill blog.

One might wonder why we are so concerned with a single student-authored law review comment. Glad you asked. I'm happy to list some of the reasons:

First, despite all the law to the contrary and no less than eight prior decisions ruling speech codes unconstitutional, what some might consider to be the premier law journal in the country published a comment legitimizing campus speech codes. That's a problem because while speech codes have had the law uniformly against them for decades now, as many as three quarters of the universities in the country still maintain unconstitutional speech codes. As a result, these scofflaw institutions are glad to grab any ammunition to defend their speech codes that they can find -- even a sloppy, shoddy unsigned student comment in the Harvard Law Review.

Second, and demonstrating my first point, is the fact that almost as soon as the comment was published, it was cited it in a motion defending a campus speech code in Los Angeles. LLB implicitly recognizes how remarkable this is by asking readers "When was the last time you saw a student comment achieve this level of debate or be cited in pleadings so quickly?" The defenders of speech codes need a leg to stand on, and comments like this in journals like the Harvard Law Review have a real-world impact.

Third, this comment demonstrates that after 20 years of universities trying to dupe the public into believing that speech codes are okay by simply re-characterizing them as harassment policies, people in influential positions are finally starting to believe them. It only goes to show that if you repeat a lie long enough, people forget what the truth is. The HLR comment indicates that the misinformation campaign in favor of speech codes is winning in the court of public opinion, even while every single case in a court of law has been a loss.

Fourth, the comment entirely ignores the harm of speech codes in the first place. It argues that the court should have only considered the code if it had been directly applied to a particular student who then brought a suit. What the author fails to understand is that unconstitutional restrictions on free speech are harmful in and of themselves. Let's say, for example, Congress passed a law declaring that no criticism of the president is allowed. The existence of such a law would cause most people who are either afraid or law-abiding (or some combination of the two) to shut up about the president. Even if Congress claimed that it didn't, in fact, plan to enforce this law, it wouldn't matter, as it would still have a chilling effect on speech. Same with speech codes on campus -- their mere existence chills speech on campus, because students know that they run the risk of punishment for engaging in protected but unpopular speech. That's unacceptable.

There is another crucial harm that speech codes cause: They are miseducating an entire generation about their free speech rights and the free speech rights of others. This HLR comment is genuine evidence of this fact.

I could go on about the dangers of speech codes, and indeed you can see numerous insane examples of abuses of speech codes in my previous Huffington Post blogs and hear about them in my recent interview with Reason magazine. But the final reason why the HLR comment was so frustrating to us was that it relied on shoddy, unforgivably incomplete research to reach a conclusion that limits the rights of their fellow students. That is more than ironic, it's more than frustrating; frankly, it's unworthy of such a venerable publication.

Comments

[TankerCMD]

...When Sgt. DeJohn wins, his efforts and courage in the face of fire—both at home and abroad—will have resulted in a landmark case in the academic freedom movement.

Sir Edmund Burke stated, "All that is necessary for evil to triumph is for good men to do nothing."

Thanks to people like Sgt. Christian DeJohn, such evil is being vanquished, and he deserves our salute.

[TankerCMD]

...What's really troubling in this whole affair is that Temple, an institution of higher learning, is supposed to be run by intelligent, objective people. Yet they actually argued in court that Sgt. DeJohn was a "marginal learner, barely passing" with failing grades, knowing full well that he had a 3.2 GPA and had never received a grade lower than a B-minus. When called on this, the Temple attorney referenced the failing grade Sgt. DeJohn received—in high school. Go figure.

In a display of uncommon maturity, Temple's history department chair Richard Immerman wrote about his hope that Sgt. DeJohn will "self-destruct." In his "professional" critique of Sgt. DeJohn's 300-page thesis, Prof. Gregory Urwin wrote abusive comments such as these: "You use juvenile argumentation"; the thesis was "a monotonous agony"; Sgt. DeJohn sounded like a "crackpot"; and the thesis came across as a "comic book for five-year-olds."

If that's not constructive criticism fostered in an open atmosphere conducive to learning, I don't know what is.

Interestingly, this fight for academic freedom is not a partisan one. Sgt. DeJohn has allies across the spectrum who have filed amicus briefs with the court, from the ACLU and Feminists for Freedom of Expression to the Alliance Defense Fund and the Foundation for Individual Rights in Education.

And Temple's allies? None. Nada. Can't imagine why.

[TankerCMD]

...Sgt. DeJohn was called to active duty by the Army after the Sept. 11 attacks while attending Temple graduate school. When serving in Bosnia-Herzegovina, Temple did the unconscionable and sent him invitations to weekly "Dissent in America" anti-war "teach-ins," sponsored by Temple professors. Sgt. DeJohn objected and immediately became the target of retribution and retaliation—which continues to this day.

What did the university do? According to Sgt. DeJohn, he was dismissed from the school (later reinstated), was denied guidance and advice during his thesis completion, obstructed his graduation, contacted potential employers to sabotage his job search and even destroyed his personal credit by falsely reporting that he had graduated.

This situation led to Sgt. DeJohn testifying before the Pennsylvania Select Committee on Academic Freedom, which ultimately brought about reform referred to as "the biggest victory in the history of the academic freedom movement." He then filed a federal civil rights lawsuit to challenge the school's "speech codes," through which Temple claims it has the right to restrict and deny students' First Amendment rights. Sgt. DeJohn won, and a federal judge issued a permanent injunction against the speech codes. With its tail between its legs, Temple appealed, and arguments were heard on Thursday at the Federal Court of Appeals.

[TankerCMD]

Temple University's Civil Rights Violations are a Disgrace

By Chris Freind, the Philadelphia Bulletin

White males are not a protected class under the Constitution, and veterans do not have First Amendment rights. After all, their concerns should be ignored because they are "mentally unstable" from being "trained to kill." And disagreeing with one's professors can result in insults such as "gnat," "juvenile" "liar" and "fool." As far as academic freedom of speech, forget it.

Welcome to taxpayer-funded Temple University.

Temple finds itself at the center of a firestorm regarding an appalling case of squashed academic freedoms and restricted First Amendment rights. The victim of Temple's suffocating speech code is a graduate student simply trying to earn a master's degree in military history. He also happens to be one of our ultimate defenders of freedom, a decorated sergeant in the Pennsylvania Army National Guard. This man's civil rights were violated, not overseas in a hostile fire zone but right back here in Philadelphia, birthplace of the nation and cradle of liberty. How's that for irony?

But since this is still the United States of America, and politically correct professors don't rule the day, this grave injustice is on track to be rectified. All it took was a huge dose of courage.

Meet Sgt. Christian DeJohn.

[masanf]

Posting a piece objecting to speech codes on a liberal website is like a member of B'Nai Brith decrying anti-semitism on Storm front.com.

[rogerfreberg]

We tend to sometimes think that suppressing 'bad' speech is good ... but not OUR free speech. We have to remember that what goes around comes around...