I’ll take a break from Facebook-bashing today and turn my attention back to free speech on campus. Will Creeley at FIRE has a great analysis of last week’s court decision enjoining the Los Angeles Community College District’s speech code. While Will’s entire post is well worth reading, his final point is perhaps most crucial:
Despite reaching the correct conclusion about the district’s unconstitutional speech code, Judge King’s order does contain a worrying note in its reasoning. In determining that the policy is overbroad, Judge King cites the landmark student speech case Tinker v. Des Moines School Dist., 393 US. 503 (1969).
. . .
But the problem here is that Judge King is citing Tinker — a case involving the rights of grade school students, who are minors — as providing an applicable ceiling (“student speech must ‘collide with the rights of others’ to be proscribed”) for the speech rights of adult college students. This is dangerous because, as recent Supreme Court opinions like Morse v. Frederick, 127 S. Ct. 2618, 2622 (2007) (holding that a high school could punish a student for off-campus speech that could be seen as promoting drug use) have made all too clear, grade school and high school students do not enjoy the robust protection of the First Amendment.
To be honest, one of the reasons why judges (like Judge King in this case) consistently cite Tinker is they are simply responding to the litigants’ arguments. Defendants rely upon high-school standards to defend speech codes, while plaintiffs often argue on twin tracks: (1) high-school standards don’t apply; and (2) even if they did, the speech code still fails.
As a consequence, the analysis often defaults to Tinker because it is, quite simply, easiest. Judges are telling universities that their speech codes couldn’t even be applied to children, much less the adults occupying the “free marketplace of ideas” on a college campus. The danger, however, is exactly what Will notes — after so many citations to Tinker, it becomes easier and easier to simply conflate to the college and high-school environments.
Those of us who argue these cases in court would do well to heed Will’s warning. Our citations to Tinker are not without peril, and critical distinctions must always be clearly drawn.