So, What is Our Freedom of Speech at CU?

We're all aware that free speech is a hot topic at Columbia recently. The violence at the Minutemen speech was an interesting intersection of free speech in the right to protest and free speech in its pure form. As Bollinger pointed out in his first response, it's part of the American ideal of free speech that even ideas we disagree with should be allowed to be heard, and that we should counter them by exercising our own right to free speech, not through suppression. Various student groups replied that for some, the presence of the Minutemen is not a free speech issue; it's creation of a hostile environment. Less emotionally affected groups pointed out that Bollinger has excluded other speakers from campus because of security concerns, and that perhaps he should have exercised that discretion in this instance; and as a larger point, that the exercise of his discretion needs to be more transparent, with guidelines for student groups to work with.

All of this raises a threshold question for me (keep in mind I'm a 1L, so I haven't taken Con Law yet): What is the place of freedom of speech at private institutions? And at the particular kind of institution that Columbia represents?

According to the Foundation for Individual Rights in Education (FIRE), a watchdog group for freedom of speech on college campuses, private universities are not bound by the First Amendment. No surprise there. But FIRE then points out that most universities represent themselves as forums for debate and free thought and expression, and that they have a duty to adhere to that representation – which in many cases would mean using the same standard as a public university (which can, of course, limit the time, place, and manner of a speech so long as the limitation is without discrimination). Furthermore, FIRE points out, “private colleges and universities are contractually bound to respect the promises they make to students.” So what promises has Columbia made us regarding free speech? (Side note – Columbia gets a “red light,” the worst designation, on FIRE’s map of colleges across the nation.)



Oddly, the CLS free speech page is blank (does this have a meaning of its own?). Bollinger’s message in response to the Minutemen protest says that Columbia is dedicated to “respect[ing] the rights of others to express their views…students and faculty have rights to invite speakers to the campus. Others have rights to hear them. Those who wish to protest have rights to do so.” He then refers to “extensive University policies governing the actions of members of this community with respect to free speech and the conduct of campus events.” But I can’t find them. Maybe because I’m not a leader of an organization at Columbia, or because they’re not posted online. That might be first step toward repairing Columbia’s free speech reputation.

According to a Columbia Spectator article, however, Columbia’s position on free speech is in the appendix of the student handbook, Facts About Columbia Essential to Students. According to the article, the handbook states, "While the University as a private institution is not subject to the Constitutional provisions of free speech and due process of law, the University by its nature is dedicated to the free expression of ideas and to the evenhanded and fair dealing with whom it conducts its affairs." Apparently the handbook then goes on to say that protests and petitions are regulated by the University's rules in order to "protect the rights of all members of the University community." Some of these regulations include scheduling student protests with Columbia security, and the University’s right to restrict students from interfering with events on campus.

Student leaders quoted in Part II of the article, however, do say that cost of speakers and security are the biggest roadblocks to bringing speakers to Columbia, and that they’ve never seen a proposed speaker rejected for viewpoint or content. The article leaves the question hanging, however, of whether the University’s policies on security discourages student groups representing the minority from bringing controversial speakers, because the required security is so much more expensive.

Professors quoted throughout Part I of the article – including Dorf – emphasize that while the university is committed to free expression, any commitment to the First Amendment is entirely voluntary. All of this brings us full circle: Other than what the university chooses to publicly say, that we can hold it to, we don’t have freedom of speech on this campus. And Columbia’s not saying much. Back to state schools, anyone?

Google Earthy-mander

Google has just added a bevy of election information to its fantastic Google Earth product.

Users of Google Earth will notice a new layer called "2006 US Election Guide." Once activated this layer displays red lines to indicate our various Congressional districts, along with information regarding candidates purusing these seats this November.

Below is a snapshot of those candidates pursuing Tom DeLay's vacated 22nd District, Texas seat.



Far more interesting than the information available about candidates is this easy birds-eye view of the gerrymandering that has captured our system. Click on any of the cities below to see the monsters that Safe Seat congressional districting has created:

Los Angeles	New York City
Dallas/Ft. Worth	Philadelphia

You can download Google Earth for free here.

Thanks, Don!

Advice & Consent & Judge Janet T. Neff

Senator Sam Brownback (R-KS) is blocking the confirmation of Bush-nominated Judge Janet T. Neff, who currently sits on the Michigan Court of Appeals.

Senator Brownback's reason for holding up her nomination? Well, it seems that Judge Neff once attended a commitment ceremony for a lesbian couple.

CLS 12th Annual Supreme Court Round-Up

Columbia Law School
Social Justice Initiative Presents:

Twelfth Annual U.S. Supreme Court Round-Up

Wednesday, October 4, 2006

Participants:

Robert Garcia, Public Defender with the Neighborhood Defender Service of Harlem and a Special Litigator working with the NYU Community Defender Clinic

Thomas W. Merrill, Charles Keller Beekman Professor at Columbia

Michael Ratner, President of the Center for Constitutional Rights

Steven R. Shapiro, Legal Director of the ACLU

Overview “The First Year of the Roberts Court”

Professor Merrill opened the evening with a synopsis of the tumultuous transition and entrance of the two new justices. Cautious decisions and a more conciliatory demeanor on the court marked this period of transition. Later in the terms, a few more controversial and fragmenting decisions were levied. A honeymoon of sorts lasted throughout the term. The Supreme Court is such a unique institution, that it takes quite a long time for justices to get acclimated and become full players on the bench. More turnover of the Court’s lineup is likely: only Justice Thomas is under 67 of pre-Bush appointees.

Shapiro echoed Merrill’s general assessment, but comically pointed out Merrill’s failure to address the aborted Harriet Myer’s nomination. He too foresaw increasing divisiveness in the upcoming term, especially in two high-profile civil liberties issues: abortion and affirmative action. Both cases force the court to revisit issues decided fairly recently with 5-4 decisions. This puts Chief Justice Roberts in an awkward position as the Court’s novice leader: should his vote overrule such a recent precedent? Finally, Shapiro noted a center-ward shift in Rehnquist when he became Chief Justice, and wondered about a similar move for Roberts.

Michael Ratner- The Aftermath of Hamdan

Ratner began by describing the frustrations and complexity of his vantage point as a representative of Guantanamo detainees. “We are one vote away from tyranny,” he declared, invoking “tyranny in the Madisonian sense as the power of all three branches being practically vested in one individual.” Illegal wiretapping and the military commissions for enemy combatants were his prime examples of the accumulation of executive power. He then discussed the statutory issues at play in Hamdan v. Rumsfeld in detail, with the Court finding a narrow range of action for the executive in the formulation of military commissions. The most interesting repercussion of Hamdan is that it permits the application of language in the Geneva Conventions that was not directly at issue in the case, potentially to torture cases.

Shapiro chimed in, lauding the bar generally, as well as military lawyers, for stepping up to combat abuses of executive power and the deprivation of rights incidental to the “War on Terror.”

Thomas Merrill- A Look Ahead: Administrative Law and Other Important Cases

Merrill returned to his theme of the court in transition, using two voting rights cases as illustrations. First, he addressed Randall v. Sorrell, which dealt with campaign contributions law in Vermont. This case has reified the three-way split among the justices that has existed regarding the precedent in Buckley, both new justices residing in a center group and signing on to Justice Breyer’s plurality opinion in Randall. Moving to LULAC, the Texas redistricting case, Merrill pointed to the claim that mid-decade redistricting was an unconstitutional and partisan gerrymander. The court has never laid down a doctrine to assess political gerrymandering, and again, the two new justices aligned themselves in the centrist position of judicial restraint in deciding gerrymandering cases. Merrill opined that the presence of the two rookie justices in the center on these two cases is likely a place holding maneuver in the temperate spirit of newcomers on the court, and therefore not indicative of their potential future positions on similar legal issues.

Looking forward to the coming term, Merrill anticipated Massachusetts v. EPA as an important case on the standing of U.S. state attorney generals to challenge the federal government’s non-enforcement of the emission of greenhouse gasses. In Waters v. Wachovia Bank, a case for which Merrill contributed an AMICUS Brief may prove to be an important precedent determining the relationship between state statute and federal agency decrees.

Robert Garcia- A Look Ahead: Criminal Justice Cases

Garcia began with a discussion of Hudson v. Michigan as an unanticipated ruling that was questionably consistent with precedent. In a criticism of the narrow holding of the case, he suggested that the Court forgot about privacy. Garcia worried that the logic of this opinion could be used to eliminate the exclusionary rule of the 4th Amendment. Turning to more optimistic cases, Davis v. Washington and Hammon v. Indiana. These cases involved convictions without the ability to cross-examine the alleged victim. The Supreme Court stated that an ongoing emergency was an exception to the procedural rule mandating a right to confront adversarial witnesses.

Steven Shapiro- A Look Ahead: First Amendment and Other Important Cases

Shapiro began by announcing the score of the Mets-Dodges playoff game, and – in a further audience-friendly move – announced his intention to be brief and permit time for questions. Shapiro also commented on the Randall case, observing that the two new justices relied heavily on stare decisis in their voting. He then moved to LULAC case, and pointed to the issue of gerrymandering as the single largest hurdle to a more efficient federal electoral government. “Justice Kennedy has now become Justice O’Connor” as the critical middle of the court, proclaimed Shapiro, and considering his ongoing judicial evolution, he is the most interesting justice to observe. Kennedy, in the abortion and affirmative action cases, was in the dissent in precedents, so he will be torn between his commitment to stare decisis and his own prior votes. Shapiro worried about the repercussions of Gacetti v. Ceballos because that decision held that government employees have no right to free speech while under the auspices of their post. One potentially detrimental consequence of this decision is that public employees would be protected when revealing information to the press and public, but not when discussing issues with superiors or colleagues, creating a warped set of incentives for public officials.

In general, the session provided an excellent overview of the serious jurisprudential issues facing the current Supreme Court with an eye toward possible policy repercussions. The CLS ACS and all present thank and commend the Social Justice Initiative at Columbia for sponsoring and presenting this fantastic program.

Gay Rights as the Cause of “Naughty Emails”?

By now, we’ve all heard about the inappropriate, lurid conversations, instant messages, emails, and possibly encounters of now-former Rep. Mark Foley, R-FL. The scandal has raised significant issues about accountability in Republican leadership and the oversight of the page problem in general. But many conservatives have been quick to characterize the problem differently- as one of an inherent problem with homosexuality, and in particular, a problem resulting from the granting of gay rights. Rather than seeing Mr. Foley as a troubled man, living in the closet (though he was outed in gay media in 1997), and abusing his power in a completely inappropriate way, members of the right wing are holding up Mr. Foley as an example of all gay men- and furthering the baseless accusation that gays are more likely to pursue relationships with children.

On one prominent right-wing blog sponsored by the inappropriately named “Accuracy in Media”, Editor Cliff Kincaid takes the media to task for not ascribing Mr. Foley’s behavior to his homosexuality, and takes the Republican Party to task for “protecting” Foley’s homosexuality, which he calls a perversion. The veritable Family Research Council has gone even further, saying that “Pro-Homosexual Political Correctness” is to blame for Rep. Foley’s behavior, saying that political correctness (or what we refer to as basic human rights and dignity) has come at the expense of child safety.

Disappointingly, these myths are being propagated by usually more reasonable right-wingers. The Wall Street Journal editorial page is claiming that Rep. Foley’s actions gives credence to the Boy Scouts of America’s anti-gay discriminatory policy. Ben Stein, former host of “Win Ben Stein’s Money” and Nixon Administration official, writes in the American Spectator, “I hope it won't come as a surprise to anyone that a big part of male homosexual behavior is interest in young boys.”

As a practicing male homosexual, I will be honest- it surprises me. Homosexuals, like heterosexuals, have a wide range of tastes in sexual partners. To say all male homosexuals have an “interest” in young boys is as absurd as saying all male heterosexuals have an interest in retired senior citizens from South Florida. Others are saying that the fact that Rep. Foley found 20-year old men attractive should have been signs of trouble. Many older heterosexual men find 20-year old women attractive—that doesn’t mean they’re pedophiles. The double standard is fairly clear.

Stein also argues that LGBT individuals aren’t expressing their support for Rep. Foley as they have for other gays involved in scandals. But there is a difference between supporting someone’s homosexuality and ability to openly express it, and supporting their inappropriate behavior. Had Rep. Foley simply “come out”, he surely would have had as much support as any other politician who has decided to cease hiding his sexuality.

If anything, the continued repression and subordination of LGBT Americans likely had a greater influence on Mr. Foley’s behavior than “political correctness.” I do not condone Mr. Foley’s behavior in any way, but the fact that Mr. Foley’s homosexuality is part of the “news” at all is a sad commentary on the state of affairs in this country. If the circumstances of his affair were exactly the same, but merely concerned female pages instead of male pages, Mr. Foley’s behavior would have been as inappropriate and unacceptable. However, the sad truth is that the scandal would likely be considered more forgivable if the pages involved were female.

The only sympathy that Mr. Foley deserves today is due to the fact that he could not be openly gay throughout his tenure as a legislator. (Currently, there are only 3 openly gay members of Congress- .6%) In fact, when rumors started swelling around his 2003 Senatorial run, he left the race rather than admit that he was a gay man- facing the choice between being himself openly and his career- a choice that too many LGBT Americans face daily. To save face, Mr. Foley even went so far as to say “I like women…” and call it "revolting and unforgivable" that people were openly speculating that he was gay.

The good news is it seems unlikely that the majority of Americans will buy the argument that treating LGBT Americans with respect, dignity, and the equal protection of the laws “caused” Mark Foley’s immoral, condemnation-worthy behavior. Mark Foley’s inappropriate behavior towards pages cannot be used to justify discrimination towards LGBT Americans. LGBT Americans deserve to be treated with equal rights, and Mr. Foley’s actions are condemnable regardless of his sexual orientation. If anything, Mr. Foley’s inability to live openly as a gay man should remind us of the need to protect LGBT Americans, not rollback their civil rights.