all FIREd up: McSwane update

This just in: The following letter was sent earlier today with regard to the McSwane hearing scheduled for tomorrow. (You'll remember FIRE from their free-speech advocacy on the CSU campus last spring.)

October 3, 2007

James Landers
Interim President, Board of Student Communications
C225 Andrew G. Clark Building
Colorado State University
Fort Collins, CO 80523

Sent via U.S. Mail and Facsimile (970-491-2908)

Dear Dr. Landers:

As you can see from our list of Directors and Board of Advisors, FIRE unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals across the political and ideological spectrum on behalf of liberty, due process, legal equality, voluntary association, freedom of speech, and religious liberty on America's college campuses. Our web page, www.thefire.org, will give you a greater sense of our identity and activities.

FIRE is deeply concerned about the decision of Colorado State University's Board of Student Communications to hold a formal hearing on charges against J. David McSwane, editor-in-chief of The Rocky Mountain Collegian, for a constitutionally protected staff editorial printed on September 21, 2007. The editorial reads, "Taser this…FUCK BUSH."

In his September 21, 2007, statement in response to the editorial, President Larry Edward Penley correctly noted that "Colorado State, as a state institution, is prohibited by law from censoring or regulating the content of its student media publication" (emphasis in original). Indeed, as a public institution of higher learning, Colorado State University and its Board of Student Communications have a constitutional obligation to uphold students' First Amendment rights to freedom of expression and freedom of the press. President Penley also noted that Colorado State University's Board of Student Communications derives its authority directly from the university:

The Board of Student Communications has the authority – granted by the Board of Governors of the Colorado State University System – to hear any and all grievances and complaints related to student media operations and performance.

The Board of Student Communications (BSC) is thus equally prohibited by the U.S. Constitution from punishing McSwane simply because the Collegian printed "profane and vulgar words" in an editorial. Although the BSC has the authority to "remove from office" the head of a student publication, that authority must be exercised within the clear parameters of constitutional obligation. Colorado State University may not perform an end-run around its First Amendment responsibilities by delegating its authority to the BSC and then suggesting that the BSC may remove McSwane from office because of his publication's protected speech.

Moreover, the BSC's own bylaws state that it has the responsibility to "assure students' First Amendment rights are protected." But the language restrictions on student media, given at length in the BSC bylaws, are plainly unconstitutional. The threat of punishment for constitutionally protected speech likely prevents many ideas from ever appearing in student media. This is known as a "chilling effect" on free speech, and it is something the First Amendment abhors. Even when protesters' expression is coarse or vitriolic, CSU and the BSC are constitutionally and morally bound to protect it.

Let us be clear that while the content in question—an editorial containing an expletive—might offend members of the campus community, it is unquestionably protected expression under the First Amendment. The principle of freedom of speech does not exist to protect only non-controversial speech; indeed, it exists precisely to protect speech that some members of a community may find controversial or "offensive." The Supreme Court stated in Texas v. Johnson, 491 U.S. 397, 414 (1989) that "[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Similarly, the Court wrote in Papish v. Board of Curators of the University of Missouri, 410 U.S. 667, 670 (1973) that "the mere dissemination of ideas—no matter how offensive to good taste—on a state university campus may not be shut off in the name alone of 'conventions of decency.'"

Editorial comments about political figures—even when they include "offensive" language—comprise the core of our country's honored tradition of political dialogue. The landmark Supreme Court cases Cohen v. California, 403 U.S. 15 (1971) and Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988) clearly protect—as core political speech—shocking or deeply offensive material, farce, profanity, and exaggeration, and they confirm the essential role of parody, satire and hyperbole precisely because such rhetorical instruments effectively challenge readers' deepest assumptions and beliefs. No campus that claims to take seriously the free speech rights of students may retaliate against students or a student publication because others on campus felt offended by fully protected speech.

Further, a public university such as Colorado State cannot lawfully ban "four-letter words," no matter how offensive some may find them. In Cohen, for example, the Supreme Court overturned the conviction of a man for wearing a jacket emblazoned with the words "Fuck the Draft" into a county courthouse. The Court held that the message on Cohen's jacket, however vulgar, was protected speech, writing that "one man's vulgarity is another's lyric." In Papish, the Court determined that a student newspaper article entitled "Motherfucker Acquitted" was constitutionally protected speech. Indeed, the Supreme Court has held that the Constitution protects many kinds of expression arguably much more offensive than what was printed in the Collegian editorial. For example, in Hustler v. Falwell, the Court ruled that the First Amendment protected a cartoon suggesting that the Reverend Jerry Falwell lost his virginity in a drunken encounter with his mother in an outhouse. Under these standards, there can be no question that the Collegian's speech is protected by the First Amendment.

We hope to see this matter resolved with respect for the principles of freedom of speech and freedom of the press. Because of the urgency of this situation and the continuing investigation of David McSwane, please respond to us by Wednesday, October 10, 2007.

I look forward to hearing from you.

Sincerely,

Adam Kissel

Director, Individual Rights Defense Program