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PSU gets mixed review on free speech

The University Park campus is getting good marks from students for its allowance of freedom of speech. It hasn’t always made the grade, however, and some of its policies are still under the critical eye of constitutional watchdog groups.

PSU gets mixed review on free speech

By Jessica Beard

The University Park campus is getting good marks from students for its allowance of freedom of speech. It hasn’t always made the grade, however, and some of its policies are still under the critical eye of constitutional watchdog groups.

On a brisk Thursday in September, the Penn State Atheist/Agnostic Association held an event on the HUB patio called “Stone an Atheist.” There were no stones. However, club members provided water balloons—two for a dollar—for students to pelt them, with proceeds going to Village Reach, a nonprofit group that provides health care in developing countries.

Several members of the Penn State Atheist/Agnostic Association held posters proclaiming “Stone an Atheist!” in bright bubble letters.

Club treasurer Noah Orris held a poster covered in the Leviticus passage of the Bible from which the club took its subversive inspiration; “And he that blasphemeth the name of the LORD, he shall surely be put to death, and all the congregation shall certainly stone him.”

“We’ve been pretty blessed with this campus,” said club president Nick Shaff. “We’ve had no problems besides the occasional student flipping us off.”

“But it’s nice that they can exercise their freedom of speech, too,” said club secretary Daniel McGill.

According to the Foundation for Individual Rights in Education’s (FIRE) website, FIRE is a watchdog group whose mission statement is “to defend and sustain individual rights at America’s colleges and universities.” FIRE includes freedom of speech and religious liberty among “the essential qualities of individual liberty and dignity. FIRE’s core mission is to protect the unprotected and to educate the public and communities of concerned Americans about the threats to these rights on our campuses and about the means to preserve them”.

FIRE uses its ‘Spotlight System’ as a database that profiles how American academic institutions stack up in their protection of individual liberties. It also keeps case files of instances of repression or potential abuse. The Spotlight System features a free speech policy code rating rubric which uses a traffic light to indicate whether an institution’s policies are good (green), mediocre (yellow), or bad (red).

The Event Management Office enforces Policy AD51. Registered student organizations and University-affiliated groups of ten or more students, faculty or staff apply to reserve space at the Event Management Office.

According to Brouse, the policy for reserving locations is written to accommodate guarantees of space.

FIRE gives Penn State a yellow light for Policy AD51, ‘Use of Outdoor Areas for Expressive Activities’. According to the Penn State Policy Manual, Policy AD51 “is applicable to University students, faculty, staff and others who wish to engage in speaking, literature distribution, poster or sign displays, petitioning and similar noncommercial activities (generally referred to as ‘expressive activity’) at outdoor locations on University property.”

According to FIRE’s Spotlight guidelines, a “‘yellow light’ institution is one whose policies restrict a more limited amount of protected expression or, by virtue of their vague wording, could too easily be used to restrict protected expression.”

FIRE improved Penn State’s rating from a red light to a yellow light in 2009. Then-president, Graham Spanier, agreed to revise the Penn State Principles preamble after William Creeley, FIRE’s Director of Legal and Public Advocacy, wrote a letter to Spanier. The letter cited “impermissibly vague terms” and stated that “the fact that a student seemingly may be punished for ‘demeaning the dignity’ of others means that engaging in wide swaths of constitutionally

protected expression may serve as grounds for punishment.”

FIRE staff member Samantha Harris commented that Penn State was “playing with fire...by maintaining a policy that so clearly violates what the Third Circuit [federal court] has said—on multiple occasions—about the extent to which schools may restrict student speech in the name of preventing harassment.”

Penn State is under the jurisdiction of the 3rd U.S. Circuit Court of Appeals. In the letter, FIRE cited two 3rd Circuit decisions which “unequivocally established the unconstitutionality of campus speech codes.” The first was Saxe v. State College Area School District, which struck down a high school’s harassment policy when the court found it unconstitutionally broad in its definition of “offensive content.”

The DeJohn v. Temple University ruling then specified that college administrators have even less license to regulate student speech than elementary and high school administrators.

The letter also cited several First Amendment U.S. Supreme Court cases in its appeal to change the policy’s language, including the landmark Hustler Magazine v. Falwell. Creeley pointed out that in this case, “the Supreme Court ruled that the First Amendment protects even the most “blatantly ‘ridiculing’ speech.” In Hustler, it was “a cartoon suggesting that the Reverend Jerry Falwell lost his virginity in a drunken encounter with his mother in an outhouse.”

“This blatantly ‘ridiculing’ speech is protected under the First Amendment, and such expression likewise must be protected at Penn State. Penn State is free to criticize such expression but is bound not to punish or prohibit it,” Creeley said.

“Penn State knows that if they do give us shit, all hell will break loose,” said Laura Bradley, vice president of the Penn State Atheist/Agnostic Association.

Shaff stated that he agrees with Bradley about the university’s support.

“Penn State’s been really great about letting us do what we want,” Shaff said.

“I go into Event Management or the ASA (Associated Student Activities) and say, ‘can you take care of our stuff?’ and they don’t ever bother us,” Shaff said. “They don’t ever do anything to prevent us from doing things.”

Policy AD51 indicates areas “suitable” for expressive activity “based upon careful study.” It does not expressly prohibit use of other campus areas.

“Technically you can do that anywhere on campus, said Robert Brouse, Manager of the HUB Information Desk and Event Management. “There’s no policy that stops you from that.”

“The policy was just written that way because ten or more normally means it’s an organization event or rally and they encourage it to be reserved,” Brouse said. “The only reason they put it that way is a space for someone to reserve, then you’re guaranteed the space. If another group reserves that space first, then you lose it.

“It’s not an issue of time, place and manner.”

FIRE also gives Penn State its yellow light rating for what it classifies as a posting policy, under the guidelines for “Decorations and Displays” in undergraduate residence halls. FIRE takes issue with the regulation which states that “Any materials found to be offensive or outside the boundaries of reasonable community expectations will be referred to the area Residence Life staff.”

Brouse referred to the display policy as the “fire policy.” The eight-point policy for student doors and the six-point policy for student room and lounge windows state that adherence prevents damage and “eliminate[s] potential safety hazards.”

“I can understand from the University perspective that it degrades from the look of campus if you’re posting posters on doors and windows, whether it’s commercial or noncommercial, when there are general use bulletin boards all over campus,” Brouse said.

According to its Posting Policies guidelines, FIRE finds that Penn State’s policy goes “beyond reasonable limits” of “time, place and manner restrictions.”

Auburn University also cited safety— “the safety, health, and wellbeing” of students—when student Eric Philips was forced to remove a Ron Paul poster from his window in November 2011.

Since then, FIRE has taken up the case and has been helping Philips document and publicize other instances of flags and banners left in residence hall windows and doorways across campus. The documentation is being used to undermine the “safety” rationale for such an unevenly enforced policy on student expression.

Peter Bonilla, FIRE’s Associate Director, Individual Rights Defense Program, wrote in an April 23 article that when administrations apply the “safety defense” this way, “it only makes them look foolish.”

FIRE president Greg Lukianoff wrote a September 20th Daily Caller column claiming that “censorship of [the] Ron Paul poster is part of [a] larger problem.”

“The problem is that students, educated on campuses that over-regulate and apply double standards to speech, have simply gotten used to it,” Lukianoff said. “The first [step] is simply misinforming students about the rights they have and the importance of those rights. The most dangerous stages, however, come later, when some students come to believe that not only should they not have those rights, but that censorship is what good and noble people do.”

To learn more about FIRE and its coverage of Penn State cases, visit thefire.org. You can submit your own case at thefire.org/cases/submit/.

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