Free Speech Roundup: Month of November, 2018

Free Speech Roundup November 2018

A summary of the top free speech related news and events from the past month. This month we have news on a Supreme Court case and university rulings and controversies.

Freedom of speech is the right from which all other human rights follow because it allows people to address grievances and protest for their other rights. It is therefore of the utmost importance to protect the right to express oneself freely from those who seek to restrict it.

Supreme Court Considers Question Of Free Speech And Retaliatory Arrests

https://www.nytimes.com/2018/11/26/us/politics/supreme-court-free-speech-police-power.html
In Nieves v. Bartlett, the Supreme Court addresses for a third time the question of whether the existence of probable cause was always enough to defeat a lawsuit claiming retaliatory arrest. In the current case, Russell P. Bartlett argues that his arrest at the Arctic Man snowmobile event in Alaska for disorderly conduct and resisting arrest violated his First Amendment rights. He was arrested after yelling at police officers and refusing to answer questions and an officer allegedly told him, “Bet you wish you would have talked to me now.” The justices struggle to find where the line should be drawn. In June, they ruled a retaliatory case could be pursued where an official policy of harassment is established. In 2006, it was ruled government officials could not be sued under the First Amendment for retaliatory prosecutions where there was probable cause to pursue the prosecution. This case addresses whether that also applies to arrests.

Rutgers Reverses Ruling Against Professor

https://www.thefire.org/victory-rutgers-reverses-punishment-of-professor-who-posted-about-resigning-from-the-white-race-on-facebook/
Rutgers University reversed its decision finding professor James Livingston guilty of violating university policy for Facebook posts critical of white gentrification in Harlem. He was found guilty of violating policy prohibiting discrimination and harassment and his initial appeal denied, but the university president ordered a review following a letter by FIRE. The reversal affirms the right of professors to speak as private citizens on matters of public concern. Marieke Tuthill Beck-Coon, FIRE’s director of litigation wrote, “FIRE is pleased that Rutgers did the right thing and reversed the charge of racial discrimination against Professor Livingston. Any other result would have undermined the free speech and academic freedom rights of all Rutgers faculty members.”

Proposed Title IX Revisions Also Safeguard Free Speech

https://www.thefire.org/new-proposed-title-ix-regulations-feature-essential-safeguards-for-free-speech-and-due-process-on-campus/
In addition to much needed protections for due process, the proposed revisions to Title IX regulations by the Department of Education also protect free speech. The new proposed rules would redefine and clarify what constitutes harassment. Current overbroad harassment codes stem from a 2013 Department of Education initiative to define sexual harassment as “any unwelcome conduct of a sexual nature,” including “verbal conduct.” Speech protected under the First Amendment could be punished or censored under this broad definition. The new rules redefine harassment based on the Supreme Court’s definition of student-on-student discriminatory harassment, set forth in Davis v. Monroe County Board of Education. This definition states, “Unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.”

Federal Judge Rules Against Professor’s Free Speech Argument

https://www.thefire.org/federal-judges-dangerous-speech-code-ruling-overshadows-promising-due-process-decision/
University of Michigan sociology professor Pamela Smock filed a lawsuit against the university after being disciplined for alleged misconduct in 2016. Three students accused Smock of making “inappropriate jokes and [having] conversations of a sexual nature with them.” The university ruled that her conduct was inappropriate and violated professional standards, freezing her wages for three years, forbidding her from serving as the primary advisor to graduate students, and significantly limiting her sabbatical privileges. Smock argued in the suit that the policy was overbroad and vague and that her comments were protected under academic freedom, given the focus of her teaching. The court ruled in her favor on the due process claims, but rejected her arguments regarding freedom of speech. The court ruled that the policy was not overbroad as universities have broad powers to dictate faculty standards of civility and her speech did not address a matter of public concern.

Reprimand For University’s Porn Star Talk

https://www.thefire.org/wisconsin-system-president-reprimands-uw-la-crosse-chancellor-for-free-speech-week-talk-by-porn-star/
University of Wisconsin-La Crosse Chancellor Joe Gow was reprimanded by the UW System President Ray Cross for allowing a speech by adult film star Nina Hartley. The speech, given November 9th, was titled “Fantasy vs. Reality: Viewing Adult Media with a Critical Eye.” Following some controversy, Gow personally reimbursed the university for her speaker’s fee and invited a speaker from an anti-porn advocacy group to give an alternative perspective. While Gow stayed true to UW’s commitment to the Chicago Statement, Cross issued a formal reprimand to Gow suggesting the controversy would impact his salary adjustment and could affect state funding. The UW system, as a public institution, is bound by the First Amendment to protect such controversial speech.