The Sixth Circuit Pounds Another Nail in the Coffin of the University Speech Code

Dec 2014
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This is very good news indeed. The left has been taking an axe to free speech on campus for too long.


The day when universities are forced to rediscover their historic role as guardians of open inquiry and debate is coming, whether they like it or not.


There was a time, in the recent past, when universities were in the grip of a kind of speech-code fever. Even as recently ten years ago, after a wave of litigation striking down campus speech regulations, the vast majority of American colleges and universities still kept clearly unconstitutional speech codes on the books. They kept losing in court, yet they still couldn’t quit their codes.

Fast-forward a decade and that’s changed. Between 2009 and 2019, the portion of surveyed American universities with what the Foundation for Individual Rights in Education classifies as “red light” speech codes has shrunk from 74.2 percent to a mere 28.5 percent, and a total of 17 states have enacted some form of campus free-speech legislation. But the impulse to censor dies hard, and some schools have been nothing if not creative in their efforts to control speech without explicitly and clearly running afoul of the law. Witness, for example, the phenomenon of the “bias-response team.”

...

Yesterday, in a decision with national implications, the Sixth Circuit Court of Appeals sided with Speech First, reversed the district court and ordered it to reconsider the group’s request for an injunction. Its ruling recognized the obvious power of the bias-response team:


The Response Team’s ability to make referrals — i.e., to inform OSCR or the police about reported conduct — is a real consequence that objectively chills speech. The referral itself does not punish a student — the referral is not, for example, a criminal conviction or expulsion. But the referral subjects students to processes which could lead to those punishments. The referral initiates the formal investigative process, which itself is chilling even if it does not result in a finding of responsibility or criminality.​

...



Sixth Circuit Deals New Blow to University Speech Codes | National Review


 
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May 2019
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Court vacates ruling favoring University of Michigan in free speech lawsuit
Updated Sep 24, 2019; Posted Sep 23, 2019

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Interesting how everyone's concerned about the chilling effect of anti-harassment policies, but none of them are concerned by the chilling effect of harassment itself. The First Amendment is broken if it means we have to make it safe for people threatening to murder entire groups (which is legally protected speech since they're not threatening a specific individual), while ignoring the rights of those threatened groups whose speech is chilled by the threat of murder.

This is why the right is so threatened by Antifa - they can't stand to have tactics they perfected to silence and intimidate minorities for centuries turned back in their faces. Clearly, we need to create more safe spaces for white supremacists.
:cool:
 
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Rasselas

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The devil is in the details here. First, nothing about this ruling speaks to the rightness or wrongness of the plaintiff's case--it's only about whether an injunction should be issued. Second, it doesn't say that an injunction SHOULD be issued, only that the lower court refused to issue one based on an incorrect assumption. Third, the assumption in question is about standing, so all this does is say that the plaintiff does have standing and that the lower court should consider the possibility of an injunction, not refuse because of the standing issue.

The case itself turn on at least one issue that's now moot. The plaintiff objected to one part of the university's definition of "bullying." They had included a dictionary definition for the term, as well as references to state law. The plaintiff thinks that the use of the dictionary definition is unconstitutional. But here's the thing--the University REMOVED the dictionary definition from its website shortly after the suit was filed, so that point is now moot.

The plaintiff also objects to the methods of the University. The University uses a "response team" to collect information from people about their claims of being bullied or harassed, offers comfort, and invites the allegedly offending party to discuss the incident with the person who claims to have been bullied or harassed. They can refer the incident for some sort of disciplinary action, but they can't take an such action themselves. The plaintiff objects to this system, saying it objectively quells speech and that the 'team's' purposes are over broad.

A key point: The court in the case cited here specifically declines to rule on anything other than 1) the standing issue and 2) whether the University's changing its definition of bullying and harassment is de facto permanent (which would moot the case).
 

CtC

Mar 2019
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Court vacates ruling favoring University of Michigan in free speech lawsuit
Updated Sep 24, 2019; Posted Sep 23, 2019

Comments
Interesting how everyone's concerned about the chilling effect of anti-harassment policies, but none of them are concerned by the chilling effect of harassment itself. The First Amendment is broken if it means we have to make it safe for people threatening to murder entire groups (which is legally protected speech since they're not threatening a specific individual), while ignoring the rights of those threatened groups whose speech is chilled by the threat of murder.

This is why the right is so threatened by Antifa - they can't stand to have tactics they perfected to silence and intimidate minorities for centuries turned back in their faces. Clearly, we need to create more safe spaces for white supremacists.
:cool:
Wrong. "They" are afraid of getting KILLED by rotten thugs wearing hoods.
 
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Rasselas

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What's interesting to me is why the OP mentions this case at all. It's not about "speech codes" but about an anti-harassment, anti-bullying policy. The policy involved has since been changed to eliminate at least one of their objections. And nothing about the case suggests that the university's policy is unconstitutional.

Does anyone really want to use the First Amendment to protect speech that bullies or harasses others? Is this really what you want to defend? Let's remember that here at PH we have rules to prevent harassment. There is language we are strictly prohibited from using, even to use it as an example of bad behavior. Should a university be any less civil a place than Political Hotwire?

This policy is aimed at keeping students from being deliberately offensive to each other. It prevents someone from shouting "Hey bitch! Your hair is nasty!" It keeps someone from shouting 'F****t!" It also prevents some lefty from shouting "Republicans suck, you racists!" at the College Republican group. All of those things are pretty clearly harassment and/or bullying.

Does the OP really think that allowing conduct of that sort is what the First Amendment protects? Is it really worthy of your time?
 

Rasselas

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One last thing
Wrong. "They" are afraid of getting KILLED by rotten thugs wearing hoods.
Not a lot of chance of that. For all the kvetching about Antifa, I can't think of a single case where they killed someone. And this thread is about speech, not actions, so what's up with this comment?
 

Rasselas

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One last thing--I've been a student or an instructor at five institutions of higher learning over the last 40 years or so, and I've never seen a "speech code." I've seen policies against bullying and harassment, but you need such rules to keep any sort of open discussion going. Roberts Rules allow for speech to be ruled out of order, it allows for offensive speech to be taken down and a member silenced on that basis (happened to Nancy Pelosi earlier this year). It allows all business to be halted if someone is personally insulted who calls for a "point of personal privilege" to defend themselves. If the goal of the University is to be a place where ideas can be debated freely, it must have rules to keep students from filibustering, engaging in speech that is merely provocative, etc., just as a deliberative body has to have rules to avoid becoming a cacophony.
 
Dec 2018
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Florida
Court vacates ruling favoring University of Michigan in free speech lawsuit
Updated Sep 24, 2019; Posted Sep 23, 2019

Comments
Interesting how everyone's concerned about the chilling effect of anti-harassment policies, but none of them are concerned by the chilling effect of harassment itself. The First Amendment is broken if it means we have to make it safe for people threatening to murder entire groups (which is legally protected speech since they're not threatening a specific individual), while ignoring the rights of those threatened groups whose speech is chilled by the threat of murder.

This is why the right is so threatened by Antifa - they can't stand to have tactics they perfected to silence and intimidate minorities for centuries turned back in their faces. Clearly, we need to create more safe spaces for white supremacists.
:cool:

Wait? So tactics to silence and intimidate are totally acceptable if they are don’t to the tribe you disagree with?

And what the fuck are you talking about “broken?” Free speech exists to protect “controversial” speech so that we don’t get some soft brained limp wristed coward in office who can start trying to put down anything “controversial.” How long till we start prosecuting Bill Burr for being offensive? FFS you either support free speech or you don’t. There isn’t some bullshit middle ground where you can say “oh well that is mean or hateful so that doesn’t count.” Fuck that! That’s where tyranny begins. And yes. That is melodramatic. And that is the fucking point! You want us to defend the first amendment like we defend the second? There ya go.
 
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One last thing--I've been a student or an instructor at five institutions of higher learning over the last 40 years or so, and I've never seen a "speech code." I've seen policies against bullying and harassment, but you need such rules to keep any sort of open discussion going. Roberts Rules allow for speech to be ruled out of order, it allows for offensive speech to be taken down and a member silenced on that basis (happened to Nancy Pelosi earlier this year). It allows all business to be halted if someone is personally insulted who calls for a "point of personal privilege" to defend themselves. If the goal of the University is to be a place where ideas can be debated freely, it must have rules to keep students from filibustering, engaging in speech that is merely provocative, etc., just as a deliberative body has to have rules to avoid becoming a cacophony.
No. Sorry. The university cannot have blanket rules to censor all forms of “unacceptable” speech. In the classroom? That is one thing. Outside of a classroom is bullshit tyranny aimed at silencing any form of “provocative speech.” Which is free speech.
 

CtC

Mar 2019
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One last thing
Not a lot of chance of that. For all the kvetching about Antifa, I can't think of a single case where they killed someone. And this thread is about speech, not actions, so what's up with this comment?
Antifa was brought up in this context. But they are not about SPEECH. They are about ATTACKING others rights to speak. And there lies the problem. Justifying violence as "Free Speech" violates the purpose of the First Amendment . Why? Because it denies those selfsame RIGHTS to others.