Speech rulings can impact media


Student legal cases give campus publications glimpse into limits





In 1969, the Supreme Court established in Tinker v. Des Moines Independent Community School District that students have the right to freedom of expression at school as long as their expression does not cause “substantial disruption.” But when some colleges and universities tried to govern students’ rights, those students took the matter to court and, in some cases, prevailed. These cases did not involve the media, but the court rulings may impact student journalism.

At Texas Southern University in Houston and at Temple University in Philadelphia, Pa., students spoke out against their universities to have their First Amendment rights upheld. At Texas Southern a jury ruled that three students were retaliated against, while Temple’s speech code was found to be unconstitutional. Even though the cases are different, they illustrate the struggle some students face at colleges and universities

First Amendment Center scholar David Hudson pointed out that cases like Tinker and Bethel School District v. Fraser, in which the Supreme Court permitted a public school to punish a student for a campaign speech the school alleged was indecent, did not involve student media but the rulings may impact how other courts rule in media-related cases.

“Often times cases involving non-student media have discernible impact on student media cases because the courts do not distinguish between the two to any great degree,” said Hudson.

Suing Texas Southern

In 2005, three students at Texas Southern sued the university, alleging the school retaliated against them. The retaliation came after the students exposed the mismanagement of school funds by university officials by distributing fliers documenting the corruption.

Justin Jordan, William Hudson and Oliver Brown’s lives at Texas Southern began to change as they spoke out against university officials and got Texas’ governor involved. The corruption was found unexpectedly by the students after another student was murdered on school property. Hudson, Brown and Jordan, as part of student government, were surveying campus for safety improvements when they stumbled on payroll records in the front seat of a dump truck. The records documented the corruption of some university officials. The students distributed fliers with the information from the recovered payroll records and petitioned for new administrators.

Jordan said because of their speech, the university retaliated by kicking Hudson out of the university, forcing Brown to leave and pressing criminal charges against him on identity theft because the university alleged a flier gave an official’s Social Security number.

The students involved in the case were not associated with the media, but the fact that university officials tried to stop university-critical information from being disseminated may affect student publications.

“The students at TSU got punished for telling the truth and exposing wrongdoing, two things that go to the core mission of every journalist,” said Adam Goldstein, legal advocate for the Student Press Law Center. “How could a student reporter feel like they could do their job in a climate where that happened?”

Patrick Gilpin, civil rights attorney and a former professor at Texas Southern, represented the students in their case against the university. He said the students were appalled with the amount of corruption and the disregard to correct the problem by the authoritative figures at Texas Southern.

The lawsuit alleged the students’ First Amendment rights were violated, and the students asked that all of the disciplinary actions be dropped and removed from their academic records.

In August, a jury reached a general verdict in favor of Jordan, Hudson and Brown.

Together the students were awarded $200,000. Jurors decided the students’ First Amendment rights were violated, Hudson and Jordan were falsely arrested and the university “maliciously” prosecuted them. The jury also found that the four university officials involved did not qualify for immunity in regards to mistreating the students.

In the end, Jordan said they were glad they finally got their day in court.

Overbroad speech code

On Aug. 4, the Third U.S. Circuit Court of Appeals released an opinion in DeJohn v. Temple University, upholding a federal district court decision that the university’s speech code was unconstitutional.

The speech code prohibited “generalized sexist remarks and behavior.”

Christian DeJohn was a graduate student at Temple and a sergeant in the Pennsylvania Army National Guard when he was deployed to Bosnia. While away from school, DeJohn received anti-war e-mails from a history professor. He made his dislike for the e-mails known.

After his hiatus from Temple, DeJohn returned to complete his master’s degree. But his degree was denied. Represented by the Alliance Defense Fund, a non-profit that provides legal assistance in cases where civil liberties might be at risk, he filed suit against the university in 2006, alleging the school denied his degree because of his political views and that Temple’s speech code was unconstitutional.

David French, lead counsel in the case, said that DeJohn was acting selflessly in suing the university.

“He experienced actual discrimination based on his political views while he was there,” French said. “He wanted to get rid of the policy, essentially to protect the rights of all Temple students.”

In April 2007, in a federal district court ruling, DeJohn was awarded $1 in nominal damages, and the university was barred from reverting back to its original speech code. The university appealed.

“Temple University is disappointed that the court found that its former sexual harassment policy was unconstitutionally overbroad. The former policy, adopted in 1990, tracked the Equal Employment Opportunity Commission’s definition of sexual harassment,” Temple officials said in a press release.

Temple officials said the policy was amended in January 2007, and Temple’s current sexual harassment policy has not been challenged.

DeJohn’s claim that the university denied his degree because of his political views was dismissed and the university maintains that DeJohn did not meet the academic requirements for the degree.

“The opinion does not disturb the trial court’s determination that Temple appropriately exercised its academic freedom when its professors determined that DeJohn’s thesis did not meet the requirements for a master’s degree,” officials said.

After Temple appealed the federal district court’s decision, the Foundation for Individual Rights in Education and the SPLC, among other groups, supported DeJohn by filing a friend-of-the-court brief to the Third Circuit Court of Appeals.

“The constitutional rights of Americans are fundamental and may not be diluted or restricted simply because they hinder the plans of college administrators to establish an atmosphere free of discomfort or controversy,” the groups stated in the brief. “Nor can these rights be abridged under the guise of prohibiting the unlawful conduct that is distinct from speech, such as violence or true harassment.”

The groups requested that the court uphold the federal district court’s ruling. The brief said that Temple’s speech code was “vague and overbroad” and prohibited speech protected by the First Amendment for more than 20 years.

“First Amendment rights are precious and the mere fact that someone is angered or offended by your speech does not mean it loses its protection,” French said. “In fact, it is the speech that offends or causes people to get angry, that requires protection. Speech that pleases everyone does not need a First Amendment.”

In August 2008, the decision was upheld.

“What the court does a really good job of doing here, is to pierce the university facade that they can somehow re-label what is normal day dissent as harassment,” French said.

Although the cases involved speech and not the media, they may have the ability to affect the press.

“One of the prime roles of the media whether in the larger community or on campus, is to challenge the status quo, to examine claims of those in power,” said French. “That can be incredibly challenging and can anger those in authority.”

However, French said that the DeJohn ruling says that students are able to question what is being taught without a fear of punishment and that because of this, the press can freely question authorities and public figures without a fear of being censored.

William Creeley, director of legal and public advocacy for FIRE, said that the DeJohn case affirms that adult speech on campus cannot be prohibited.

“The ruling indicates that the student press is entitled to the same protection,” he said.


reports, Winter 2008-09