I am a lawyer at FIRE, a free speech nonprofit that just launched a national litigation project to help students and faculty defend their expressive rights on college and university campuses. Ask me anything!

At the University of Illinois College of Medicine as a medical student I was egregiously mistreated and then shamelessly railroaded and denied due process, as a result of which my career is dead in the water. What recourse do I have if I can't afford a lawyer? Thanks :)

You should submit a case; here's our submission page: http://www.thefire.org/resources/submit-a-case/

What is your opinion about the professor at Harvard who had to resign after suggesting that men and women's brains may be different?

Do you mean Larry Summers? Here's what our president, Greg Lukianoff, had to say about the situation. Summers is now on our board of advisors.

But the more general answer is that if professors don't feel like they can freely discuss ideas without putting their jobs at risk, universities won't be able to be the "marketplaces of ideas" that the Supreme Court has said they should be.

As free speech advocates, how do you feel about the fact that your group's name cannot be shouted in a crowded theater?

Trust me, however much you love fire puns, FIRE loves fire puns even more.

New slogan.

Where there's smoke there's FIRE.

Done.

I also like: Has your speech been chilled? FIRE can help!

http://www.theatlantic.com/national/archive/2012/11/its-time-to-stop-using-the-fire-in-a-crowded-theater-quote/264449/

This is exactly the article I always refer people to! Thanks!

When I go through FIRE's case examples, there's nothing particularly egregious or offensive, and yet the administrations seem comically intolerant of even moderate ideological dissent.

Why do you think there's so much hostility to free speech on college campuses? Can you identify any particular changes that are to blame?

Students, professors, and administrators have been increasingly accustomed to censorship over the past few decades, with the proliferation of speech codes. Now many students don't even know what their rights are, or they think they have a right not to be offended. I think one of the saddest trends is that more and more students are trying to censor their peers, and these administrators who don't understand the law are acquiescing to those requests for censorship.

FIRE's president, Greg Lukianoff, has more on the history of speech codes here and in his book, Unlearning Liberty.

This is a very general question that I'm just pretending is a followup, so feel free to pass it up:

It seems that as long as freedoms are restricted slowly, the will to fight the change is much less likely to arise. This even happens on individual levels, where a bully might ever-so-slowly start stepping on another person's rights. Like for example they might use the slightest hint of a nasty tone with a person and then slowly evolve toward speaking to the person with utter contempt and disrespect.

It's like the frog being boiled alive by being placed in a pot of cold water which is then slowly heated to boiling.

On the one hand, responding to teeny-tiny slights invites a person to become oversensitive. On the other hand, the cumulative total of all those teeny-tiny slights might add up to major disenfranchisement, which if presented all at once would provoke a defensive response.

How can people combat this tactic of slow-motion attack?

It's important to remember that no one has a right not to be made uncomfortable. They have a right to be free from harassment, but the Supreme Court has already set forth the standard for what constitutes student-on-student harassment in the educational context.

The Court said in Davis v. Monroe County Board of Education, 526 U.S. 629 (1999) that harassment is conduct that is "so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims' educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities."

That definition should serve as the frog's thermometer. It's always there, and the frog should jump out when the thermometer says it's too hot. That is to say, schools should look to this standard when crafting and applying their policies, and make sure protected speech isn't punished or prohibited.

Recently FIRE wrote about a New York cyberbullying law that was invalidated, and we've expressed concerns about the Tyler Clementi Act as well.

So the generalizable strategy would be to maintain a "thermometer" which tracks a problem on an absolute scale.

But the words in that definition seem very subjective, very open to interpretation. Unlike a thermometer which basically gives you a number, this definition is in a way predicated not just on the message, but how it's received.

Not that I can think of a better alternative. Thanks for the response

It's still tough in some situations, but that's part of why the "objectively offensive" aspect is so important. That at least means that speech can't be punished just because an especially sensitive student can't handle it. Instead, the speech is assessed by whether a reasonable person in that student's situation would still be able to receive the benefits of his/her educational institution. The law uses a "reasonable person" standard a lot, and while it's not exact the way a thermometer is, it's much better than a subjective standard alone. Maybe more like a hypercolor t-shirt?

Given that you all wrote an amicus for CLS v. Marinez, I assume that you believe it was wrongly decided. Do you foresee another case which could lay the groundwork to overturn it?

Note for those who don't know, CLS v. Martinez held that:

A public college does not violate the First Amendment by refusing to officially recognize a student organization unless it allows all students to join the group, even if that all comers policy requires a religious organization to admit gay students who do not adhere to the group's core beliefs. -- From Scotusblog

It's hard to say whether there will be another big Martinez-type case, but we are seeing several states pass legislation to protect religious and political student groups on campus, which is great. Here is a recent blog post on such legislation, and for those who aren't familiar with the case, we have an FAQ here.

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They would join it in order to disrupt it.

Yep, this is part of what we're concerned about.

I don't agree with your characterization of Christianity, but I agree with the sentiment that it makes no sense for a gay person to want to join a group that teaches that homosexuality is wrong. Have an upvote.

it makes no sense for a gay person to want to join a group that teaches that homosexuality is wrong.

Sure it does, they want that group to not exist in that form.

Um, that's not how it works. I wouldn't join the KKK because I want them to stop being racist.

But would you support tax payers providing the KKK with funding? Because that was more the issue in this case.

It's not the taxpayers' money. In this case, and in most cases, it's mandatory student fees, which means the students attending the university pay a certain amount that's dedicated to supporting a range of student groups on campus. Some schools allow students to opt out.

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On the other hand, say someone wants to form a group for white students only. They ask the university to provide them funding. Should the university give them money? They don't need support from the university. They can go raise their own funds and rent a meeting room.

There is a difference, though, between discriminating based on status and discriminating based on belief and actions. What the group in Martinez was asking was that its leaders behave a certain way in accordance with the Bible—and those restrictions affected both gay and straight students.

As for funding, institutions can choose to simply not fund student groups. But the Supreme Court has determined that if a school sets up a system where student groups are funded by mandatory student fees, those fees have to be distributed in a viewpoint-neutral manner. Think about the result otherwise: A public university could decide it wants to take student fees and distribute them only to pro-choice organizations, or anti-gay organizations, or the opposite.

These funding systems are meant to help students express a diverse range of views on campus. That won't happen if only groups with certain viewpoints get the benefits of official recognition.

I agree that schools shouldn't fund or not fund groups based on the groups political beliefs. But I also think it is reasonable for the school to insist that if they are spending money funding something that it be open to everyone who is paying for it. Groups can form that don't get free resources from the school. It would be more of an issue if the school prohibited students from being in such groups.

A lot of groups allow everyone to come to meetings but limit who can hold leadership positions. Not speaking for FIRE, but I think this is a good balance. That way, everyone can pretty much participate and learn about what the group does, just not implement a hostile takeover.

What are your thoughts on the recent NYT editorial which argued that "lower evidentiary standards seem justified" in campus administrative proceedings regarding rape and sexual assault?

We were pretty disappointed. I wrote a blog post about it here but the tl;dr is that these cases are not equivalent to civil trials (either in terms of safeguards or repercussions) and our concerns are not hypothetical.

What is the most extensive case you've had to take on? I know at my University (North Carolina State) you have basically no rights when meeting with student conduct and you have no right to intellectual property. If you engineer some new product or code a computer program while a student, the University takes all rights to it. How is this even legal?

It’s hard to say, but a lot of our due process cases have hundreds of pages of relevant documents because those cases are so fact-intensive. (For a recent example, check out the documents relating to the recent Occidental case.) In contrast, a lot of our free speech cases are simple issues of the law (well-settled law, at that). Even then, however, cases can stretch on—like our case involving Hayden Barnes, expelled from Valdosta State University for a Facebook collage back in 2007. His case is still ongoing—he’s won at both the district court and appellate court levels, but some claims remain outstanding—and Hayden’s now a practicing attorney himself.

The intellectual property question is an interesting one, but not really within FIRE’s scope. Try our friends at the Electronic Frontier Foundation for help with that one.

What sort of backlash have you received from public universities that are averse to your cause?

Thanks for doing an AMA!

Good question! Some universities are pleased to work with us. Others aren't. The bottom line is that we stand ready to provide free assistance to any college that wants to protect the expressive rights of its students. And, of course, we're willing to step in on behalf of students and professors who have had their rights violated, whether the school likes it or not.

How many interns do you have working on the project?

FIRE has seven undergraduate interns and one legal intern, but none of the interns are working on the litigation project—that's mostly up to the lawyers.

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We have our job and internship listings here: http://www.thefire.org/about-us/jobs-internships/

Do you exclusively handle cases arising out of public universities? It would seem like the legal leeway to regulate speech arising at private universities would be far greater than at public ones.

Private universities are not bound by the First Amendment, but most colleges and universities state their commitment to free expression in their student handbooks or other materials, and they should abide by those statements. That's why even though we're not involving private universities in the litigation project, our work generally includes cases at private universities as well as public ones.

What, if anything, can be done to enforce that? Or is it just moral suasion?

E.g., if a student handbook says "we respect the right to free speech for all students and faculty" in one spot, and in another spot says "all students and faculty shall refrain from speech that makes anyone feel offended."

The moral argument is always strong, but depending on the language in the institution's materials, a student might have a breach of contract claim as well. It's hard to say what would happen in court with a private institution that has inconsistent statements in its handbook, though. At the very least, students at schools that aren't internally consistent should publicly call the schools out on that and force them to make up their mind.

You mentioned:

• Private universities are not bound by law to uphold the First Amendment.
  
• Many universities however state that they are committed to free speech.
  

Given this, it seems like legal pressure might not have leverage to make universities recommit to free speech.

Have you considered publishing a score (maybe you already do) for various institutions, representing their adherence to that commitment? This could be useful to college-bound HS students who are choosing based on various factors.

We don't keep an official tally of schools' behavior the way we do with their written policies, but prospective students should definitely do a quick Google of site:thefire.org "Whatever Public University" to see what comes up.

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FIRE has worked closely with state chapters of the ACLU many times since our founding in 1999. Recently, we collaborated with the ACLU-KS on a joint letter to the Kansas Board of Regents about their vague and overbroad social media policy, and sent a letter to the University of Colorado - Boulder protesting their treatment of a professor. We also worked with the ACLU-TX on litigation involving Tarrant County College's unconstitutional speech code, for example. Many more examples are available on our website.

With a half dozen professors in the family, I hear some frightening stories of faculty politics and political correctness.

What's the biggest punishment you've seen a faculty dole out, in comparison to the "offense"?

There is a lot of competition for this one, but the case of a student getting in trouble for swearing outside of class is pretty nuts. Or if you want overreactions to professor speech, we all laugh/cried when a Bergen Community College prof was put on unpaid leave for posting on his Google+ a picture of his daughter in a Game of Thrones shirt.

What about when you consider severity of punishment on an absolute scale?

Do these punishments go beyond expulsion?

Expulsion is pretty much the worst a school can do. But /u/onecorntorulethemall just reminded me of this case of a student getting expelled for some Facebook comments. Not by any means the only case like it but worth sharing.

Pardon my ignorance, but defend students from what?

The First Amendment was created to prevent government actors—that includes the staff at public universities—from punishing people for expressing ideas they don't like. Unfortunately, students and professors are frequently punished for expressing ideas that administrators disapprove of.

What are your thoughts on "Free Speech Zones"? Meaning on my campus there are only some places where free speech is allowed.

FIRE has been at the forefront of fighting against the ironically-named “free speech zones.” Free speech zones that restrict expression to tiny portions of campus are unconstitutional at public institutions and unconscionable at private ones. Time after time, FIRE has successfully challenged these policies (for example, recently at Modesto Junior College, at the University of Cincinnati, and many others). The lawsuit against Citrus College in California filed last week also challenges a free speech zone. We will continue to fight these egregious policies until universities get the message and eliminate them voluntarily. If you think your school’s free speech zone is unconstitutional, submit a case to us.

I attended UC when this happened and had no idea. Thanks for doing it as I'm going back for grad school.

Our pleasure! Let us know if you see any additional shenanigans.

Do you take cases with students of varying ideological backgrounds? Would you, for example, defend the free speech of students (or faculty) with views you find personally offensive or deeply mistaken?

Absolutely! The FIRE staff is remarkably diverse politically, so we have tons of cases where at least a few of us disagree with whatever the student/prof is saying. But free speech is a nonpartisan issue. We've defended speech that's pro-choice, pro-life, pro-LGBT, anti-same-sex-marriage, pro-gun, anti-gun... Pretty much you name it. Just not true threats or the other unprotected categories of speech.

If you had a public college-bound child, what advice would you give? Would your advice differ depending on the child's gender or level of religious observance?

Great question! Make sure to check out our Spotlight database to see what kind of speech codes exist at the university your child is considering.

Freedom of expression is critical to a good college education, regardless of gender or religious persuasion. As FIRE president Greg Lukianoff says, if you get through college without being offended, demand your money back.

What is one thing that you feel everyone should know about their rights?

What do you feel is a misconception about people's rights that people should be aware of?

Other than that, great work! We need more folks like you people out there.

A lot of people think that you need a reason for your speech to be protected—like it has to be valuable or persuasive, or something. The fact is, the default is that your speech is protected unless it falls into one of just a few narrowly-defined categories of unprotected speech: true threats, incitement, fighting words, defamation, obscenity, child porn, or commercial fraud. Harassment isn't protected because, properly defined, it's a pattern of conduct.

But other than that, even if your speech is offensive, even if people call it "hate speech," it's still protected from punishment by government actors. There's no right not to be offended, and sometimes offensive speech is the most powerful. This is one of my favorite Supreme Court quotes, from Terminiello v. Chicago (1949):

Accordingly, a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.

Can I help?

Well, Mr. or Ms. Cash Cow...

is there a similar organization for high school students? this seems to be a much steeper problem in high school where students have far less power.

Not to the best of our knowledge. There is certainly a need for students’ rights advocacy in the K–12 context too, and organizations like the ACLU have sometimes taken those cases. The Student Press Law Center focuses on student journalism, including in the high school context. It’s an important issue, but FIRE has our hands full with higher ed!

Aside from raising awareness, what can we on Reddit do?

Raising awareness is a big one, and you can check out our student activist tips for some ideas on how to do that. But also, make sure that if someone you know has been censored or punished for their speech, they know they can come to us for help. A lot of students just think they don't have options, but they do.

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This is a real problem—universities feel a lot of pressure to find accused students guilty so that they can't be accused of ignoring complaints of sexual assault. Some institutions are even going back and re-opening old cases when the Office for Civil Rights starts investigating.

FIRE has written many times to OCR to raise our concerns about due process issues, and we've submitted a formal comment to the White House Task Force to Protect Students from Sexual Assault to explain how the current system of adjudicating campus sexual assaults puts students at risk. We also try to raise awareness through news media and speaking with lawmakers directly.

It's a hard battle, but we've seen some positive developments. Proposed regulations that came after the Violence Against Women Reauthorization Act of 2013 turned out better than they could have—check out our blog post on that for details.

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Well, I don't know about the EEOC, but there are about a dozen men who are suing their universities after being punished for sexual assault, alleging they were denied a fair hearing, and several of those cases allege sex discrimination. So you're not alone with that sort of idea. FIRE's watching these cases to see what happens.

Back in May, one student's Title IX claim against Saint Joseph's University was dismissed but the judge is gave him the chance to amend his complaint, and he's done so. Some of his other claims survived motions to dismiss, so either way it's a case worth watching.

• Are you receiving many submissions of due-process violations from students accused of sexual assault?

• What is FIRE's stance on how (or even if) colleges should adjudicate these cases? It's been pointed out that since these tribunals lack both professional criminal investigation expertise and subpoena powers that they're not competent to even hold inquiries to determine whether such a serious crime occurred or not.

Yes, we receive submissions about due process violations all the time. We've been very active on this issue. For example, in March FIRE submitted a formal comment to the White House Task Force to Protect Students from Sexual Assault, so you can read about our position in detail there.

Universities are both morally and legally obligated to respond to known instances of sexual assault in a manner reasonably calculated to prevent its recurrence, but they are also bound by the Constitution to provide meaningful due process to accused students.

FIRE shares the concern you raised that even the best-intentioned campus administrators simply lack the necessary expertise to properly handle these cases.

Any general advice for a law student interested in breaking into the subfield? Have you seen it easier to lateral into nonprofit work after a clerkship/biglaw stint or do you recommend aiming for public service off the bat?

If you really want to practice in a particular field, especially a sexy one like free speech law, I'd recommend focusing on it from the start. I was doing substantive civil rights work during my first winter break my 1L year of law school, and the summer after my first year I worked for a free speech nonprofit, the Thomas Jefferson Center for the Protection of Free Expression, researching and helping to draft amicus briefs. Everything else on my resume built on that, and I can't imagine I'd be where I am without such an early and specific start. Essentially, make sure you have as much real-world experience and legal knowledge in your field as you possibly can before you finish law school.

Have you started a planning session for the second round of law suits?

We always accept case submissions, and we're considering new plaintiffs on an ongoing basis.

Why did you decide to get in this line of work? Story time.

I love story time! Well, my parents are both lawyers and raised me to be interested in civil rights—as in, my dad got me an ACLU membership for my birthday when I was around 10. And my mom made sure my sister and I knew that we didn't have to stand up and say the pledge of allegiance if we didn't want to! And then I got pretty into LGBT rights in high school. I planned on being a lawyer eventually.

In college, I suddenly was inspired by the Lord of the Rings film trilogy and decided I wanted to do film. I ended up doing internships at a few documentary companies, particularly inspired by some of Kirby Dick's docs.

One documentary I worked on was about lesbians and one of our interviewees was talking about how obscenity laws are often selectively enforced against LGBT filmmakers. So my various interests—LGBT rights and First Amendment and film—all kind of collided there. I was having a really hard time getting a paid film job after college (surprise!) but that documentary interview really stuck with me. So I decided to go to law school and do free speech work.

How many's old 60's radical are apart of your team? Any good stories?

Our staff here in the Philadelphia office is pretty young, but you can check out our YouTube page for some good stories, particularly our Founders Series. I reckon a few of us are '60s radicals at heart.

I'm starting law school in a month and what is the best advice you could give to get into this type of law?

Like I said to /u/goddamnkoalas, get real work experience in the field as early and often as you can. Winter break, see if the local ACLU or some other nonprofit can give you a 20-40 hour project to complete, and do it well. You'll still have time to relax, but you're already a huge step ahead of a lot of your peers.

Follow the news with respect to your field. And know not just individual cases but how they fit into the overall structure of that area of the law. Not all interviewers will ask you substantive questions, but there are others that will and that will be visibly psyched when you nail it.

And don't be afraid to be enthusiastic in cover letters and interviews. Some interviewers are stuffy but in my experience nonprofits respond positively when they can tell someone's really into what they do.

CUNY (city university of New York) put forward a rule change that limits students right to assemble without authorization, essentially taking away our right to protest. Is this legal?

That sounds like something we'd definitely want to take a look at. Public schools can't just disallow students from protesting on campus, but they can put some restrictions on protests (reasonable time, place, and manner restrictions). Can you grab the text of the rule and send it to us?

What should student who want to form clubs or organizations do if the feel like they can't get chartered or recognized, because the collge does not like the speech that may come from the clubs?

Assuming this is at a public institution or a private one that promises freedom of expression/association, go ahead and submit your application for recognition. Get everything in writing, so if you get rejected, you have a record of their reasoning. If it's just because they don't like what you have to say, then submit a case to FIRE! That's exactly the type of viewpoint-based discrimination that the First Amendment was meant to prohibit.

Socks? Is that you?

No, but I will shout "Socks!" around the office tomorrow and see if anyone turns around.

Have you ever seen a ghost?

Follow-up question: is FIRE working with one firm in particular? Or is there a way for other litigators to get involved?

Nope, never seen a ghost!

We've been working with the law firm of Davis Wright Tremaine, but we anticipate working with many attorneys as the project progresses. If you're an attorney who would like to help, you can join our legal network. Thanks!

Do you have any thoughts on Brother Dean Saxton?

Here's our blog post on the situation.

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Wow. I'd say go ahead and submit a case.

Is there a school that actually has acted helpfully regarding an alleged violation of their students' rights?

Yes! We've worked with several universities in the past to get rid of their unconstitutional speech codes. For example, these were before my time, but my colleagues tell me that University of Mississippi and Mississippi State University were good to work with.

What's the most out-there (either offensive or just plain crazy) sort of speech you've had to defend?

Mostly wondering if you've had any cases like Skokie (for those unfamiliar, when the ACLU defended the rights of neo-Nazis in Chicago)

We've defended people's rights to express lots of ideas that people find objectionable, but we try to avoid making value judgments on that speech, because legally it just doesn't matter unless it falls into one of the narrowly-defined categories of unprotected expression.

Personally, though, I've found statements/behavior of administrators trying to justify censorship way more offensive and crazy than most of the stuff we defend, anyway.

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Yes! That case was nuts! We have a video on it.

The fact is, no matter how clear the law is, universities are often ignorant of their obligations under the First Amendment, or choose to ignore them, because they think they can get away with it. But they can't get away with it if students challenge them in court. Which is why we decided we absolutely had to get into the litigation side of things more. We just need to get to a place where universities know that if they violate the Constitution, someone's going to hold them accountable for it.

Hi there, I'm a big fan of FIRE's motives and work. I've seen that FIRE focuses on first amendment violations by public universities, but does FIRE also have good standing to launch litigation against private universities for similar offenses (understanding that private universities receive just as much public funding as public universities do, generally speaking, whether it's through research grants, tax exemptions, or student loans)? If not, why not? Thanks!

I'm not OP or anything, but receipt of government funds through the various channels you mentioned is not generally enough to turn a private institution into a government actor for purposes of requiring adherence to the First Amendment. You'd have to explore breach of contract or fraudulent misrepresentation claims against private schools.

Thanks, this is generally what I've heard before. I'm still hoping OP can say a little on what FIRE can or does do to stand against private universities on these issues. Also I'm interested in whether OP personally agrees with the idea that private universities should not be considered government actors, but didn't want to overload my question.

We typically write letters to schools and publicize cases involving private universities to try to get them to abide by their promises to grant students freedom of expression, since a court case would be less clear-cut.

However, some private schools openly prioritize other values over freedom of expression, and they are legally allowed to do that. I think that's how things should be.

North Carolina recently passed a law giving public university students accused of certain offenses the right to counsel in disciplinary proceedings.

Are there efforts in other states to do the same thing?

FIRE is extremely proud of North Carolina’s Student and Administration Equality Act, which we supported through the legislative process. We are hoping and expect other states to follow suit including Virginia and Massachusetts. Interestingly enough, these bills have been sponsored by legislators from both sides of the aisle.

What attracted you to FIRE?

I'd been interested in free speech work for a while when I heard about FIRE's First Amendment work. Free speech is so critically important—without it, we might not be able to defend all our other rights. But I especially love the focus on colleges and universities, the places where young adults are supposed to be exposed to all sorts of new ideas before they go out into the real world and start running things.

I eventually learned about FIRE's other work too, and as I read more about the organization I realized there was no other place where I would find all of my work truly compelling, and at the same time really feel like I was fighting on the right side of pretty much every battle I fought. Very few lawyers have that privilege.