A University of South Carolina student and two campus chapter organizations have filed a free speech lawsuit against their university, calling the school’s policies on student protests and speech overbroad, restrictive and unconstitutional.
The lawsuit comes months after a university administrator questioned USC student Ross Abbott about his participation in a free speech event on campus. The event, put on by the campus chapters of Young Americans for Liberty and College Libertarians, aimed to call attention to censorship incidents at various colleges across the country, but drew complaints from fellow students who said event displayed offensive signs that could trigger students on campus.
The lawsuit, filed Tuesday, is supported by the Foundation for Individual Rights in Education, a free-speech advocacy organization. It’s the 12th lawsuit in the organization’s Stand Up For Speech Litigation Project, which aims to remove unconstitutional free speech codes through litigation.
“The University of South Carolina is so intolerant of free speech that students can’t even talk about free speech,” Catherine Sevcenko, FIRE’s director of litigation, said in a statement. “Ironically, the university’s current marketing campaign features the slogan ‘No Limits.’ But as Ross and his fellow students learned, that does not extend to their free speech rights.”
In particular, the lawsuit argues the university’s free speech zone, which restricts protests and demonstrations to a portion of campus, along with the school’s Student Non-Discrimination and Non-Harassment policy, is unconstitutional on its face and violates students’ free speech rights. The lawsuit argues the university’s non-discrimination policy is not narrowly tailored, does not serve a significant government interest and is vague in its definitions. The lawsuit argues the government is not allowed to set “overly broad” speech regulations, citing the 1973 U.S. Supreme Court case Broadrick v. Oklahoma in which the Court ruled that an ordinance limiting the speech can be struck down if it is substantially overbroad.
Free speech zones have popped up in colleges across the country as a limited and tightly-controlled space for students to freely express their opinions without disrupting classroom environments or their fellow students. Free speech advocates call the limiting of speech to small patches of campus unconstitutional and have sued several colleges, most of which have settled before going to court.
In November, the two USC student organizations hosted a tabling event with signs and information related to different campus censorship cases. One poster depicted a swastika in reference to a case at George Washington University where a student was suspended and temporarily removed from his housing after displaying a bronze swastika in his fraternity to educate his peers on the symbol’s origins. At the event, there was also a petition to support free speech on campus and a baby crib intended to represent safe spaces.
Before the event, the students provided campus officials with a detailed description of the event and received permission to go ahead from Kim McMahon, director of Campus Life and the Russell House University Union, according to the lawsuit.
Yet the day after the free speech event, Carl Wells, assistant director of the Office of Equal Opportunity Programs, sent Abbott a “Notice of Charge” informing him that students had filed three formal complaints in response to the event.
One complaint argued that the students hung several offensive signs during the event and as punishment should “lose access to University funding for future events,” according to the lawsuit. Another complaint alleged discrimination on the part of the students for displaying the swastika and reported that a friend now feels unsafe on campus after being “violently triggered” by seeing the symbol.
In the notice, Wells informed Abbott he would have to take part in mediation to “resolve the complaint,” according to the lawsuit. Then on Dec. 8, Abbott and Young Americans for Liberty President Michael Kriete met with Wells to discuss the event.
According to the lawsuit, Wells made Abbott explain the posters cited in the complaints — despite Abbott providing a letter outlining his defense of the free speech event at the start of the meeting.
In the letter, Abbott calls on the university to expunge the complaints and clarify that its policies should not violate students’ First Amendment rights. The letter also called on the university to adopt the “Chicago Principles,” a statement that reaffirms “the importance of free speech in a university setting.”
Later that month, Wells notified Abbott that the Equal Opportunity Office would not be pursuing an investigation into the situation and would not “move any further in regard to this matter,” according to the lawsuit. Still, the lawsuit argues Wells failed to address or acknowledge the other requests outlined in Abbott’s letter and did not give clarification on university policy.
The lawsuit slams the university’s non-discrimination and non-harassment policy, arguing the policy is not only unconstitutional, but stifles debate on public issues.
“The University of South Carolina’s policies governing expression are unconstitutionally overbroad, do not serve a significant governmental interest, are not narrowly drawn, and impermissibly restrict student and student expression,” reads the lawsuit. “They burden far more speech than is necessary to serve the asserted interest of minimizing discrimination and harassment at the university.”
The lawsuit also states the university’s free speech zone policy violates free speech rights by restricting speech to a small portion of campus.
“Defendants’ policies and actions create a hostile atmosphere for free expression on campus, chilling the speech of other registered student organizations, as well as students, who are not before the Court,” the lawsuit states.
A number of colleges across the country have settled First Amendment lawsuits regarding their free speech zone policies for tens of thousands of dollars. A article in SPLC’s fall Report magazine took a look at FIRE’s effort to eliminate free speech zones on campus through litigation.
Free speech advocates and attorneys told the SPLC that the number of colleges settling before going to court shows that administrators know that their policies are unconstitutional — and it signals the toppling of more free speech zones down the road.