As Candace notes in her post below, yesterday the Alliance Defense Fund filed suit against San Francisco State University on behalf of two SFSU students, Leigh Wolf and Trent Downes, and the SFSU College Republicans. For those who haven’t followed Trent and Leigh’s ordeal, FIRE’s case page is a great place to catch up on the details. To make a long story short, the College Republicans endured a months-long investigation and a farcical “trial” for alleged “incivility” and “harassment” after members of the group stepped on Hamas and Hezbollah flags during an anti-terrorism rally. Keep in mind that SFSU is the kind of place where profane protests are the norm and where American flags are desecrated in any number of ways (during my own visit to SFSU two summers ago, I was literally shocked by some of the posters and amplified shouts from protesters – and I’m not easy to shock). In other words – for at least some people – the campus is a robust and rowdy marketplace of ideas. With this suit, the plaintiffs are hoping to open that marketplace to all students, not just those who advance the favored message.
The case has two critical components. First, Trent and Leigh are challenging the university’s actions during the months-long “investigation” of their actions during the anti-terrorism protest. The students’ protest was obviously constitutionally protected. Yet rather than dismiss the frivolous and ideologically-motivated complaints brought against the College Republicans, the university dragged the students through a months-long investigation (which caused Trent and Leigh to invest hundreds of hours of time in their own defense), and conducted an abusive and farcical “trial” where the panel did not even permit the students to present all the evidence in their defense. Even though the university (under intense public pressure brought by FIRE) eventually acquitted the students, there is no question that the process of repeating such an ordeal has a profound chilling effect not just on the plaintiffs but on all other students who share their viewpoint.
Second, Trent and Leigh are challenging the university’s speech code – the very policies that enabled the investigation and show trial to happen. The university actually attempts to ban “incivility” and bans student organization behavior “inconsistent with SF state goals, principles, and policies.” Additionally, university anti-harassment policies are both vague and overbroad, sweeping within their scope constitutionally-protected speech if that speech is subjectively “offensive” to a person or group.
Following on the heels of ADF speech code challenges at Penn State, Temple, and Georgia Tech and filed as part of FIRE’s ongoing (and successful) “Speech Codes Litigation Project,” the message to universities is quite clear: No matter how long it takes – unless and until universities voluntarily reform – we will challenge unconstitutional policies wherever they are found.
One final note: Some news reports have listed the suit as being filed by ADF and FIRE. This is not the case. As FIRE noted in its blog:
FIRE is not representing the plaintiffs in the lawsuit, but rather worked to coordinate the lawsuit that was filed yesterday by the Alliance Defense Fund (ADF). This is the modus operandi of FIRE’s Speech Codes Litigation Project: FIRE coordinates litigation—filed by cooperating attorneys from FIRE’s Legal Network—in defense of the First Amendment, in an effort to end the scourge of unconstitutional speech codes on public campuses. In this case, ADF filed the lawsuit and represents the plaintiffs.