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Harvard Law Review Speech Code Comment Ignites FIRE-storm

At issue, an April 2009 Harvard Law Review comment which argues that DeJohn v. Temple University, 537 F.3d 301 (3d Cir. 2008), the most recent and leading federal court of appeals precedent to strike down a campus speech code, was decided incorrectly. Members of FIRE, the Foundation for Individual Rights in Education, take the student author and Harvard Law Review to the woodshed because “the comment takes the shocking position that speech codes on campus are constitutional. Even more surprising than the conclusion, though, is the shoddy analysis supporting it.” Quoting Kelly Sarabyn in ‘Harvard Law Review’ Gets Lazy: Prestigious Journal Publishes Article Ignoring Case Law, Defending Speech Codes. Sarabyn continues, the author and Harvard Law Review editors appear “completely unaware of the larger legal landscape concerning campus speech codes. Amazingly, the analysis does not acknowledge that any case law on speech codes exists, let alone the fact that prior to DeJohn, eight different federal courts struck down speech codes as unconstitutional.” Sarabyn offers the following errata for the comment:

Here are the citations for cases the comment’s author and editors missed: Dambrot v. Central Michigan University, 55 F.3d 1177 (6th Cir. 1995) (declaring university discriminatory harassment policy facially unconstitutional); College Republicans at San Francisco State University v. Reed, 523 F. Supp. 2d 1005 (N.D. Cal. 2007) (enjoining enforcement of university civility policy); Roberts v. Haragan, 346 F. Supp. 2d 853 (N.D. Tex. 2004) (finding university sexual harassment policy unconstitutionally overbroad); Bair v. Shippensburg University, 280 F. Supp. 2d 357 (M.D. Pa. 2003) (enjoining enforcement of university harassment policy due to overbreadth); Booher v. Board of Regents, 1998 U.S. Dist. LEXIS 11404 (E.D. Ky. Jul. 21, 1998) (finding university sexual harassment policy void for vagueness and overbreadth); The UWM Post, Inc. v. Board of Regents of the University of Wisconsin System, 774 F. Supp. 1163 (E.D. Wis. 1991) (declaring university racial and discriminatory harassment policy facially unconstitutional); Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989) (enjoining enforcement of university discriminatory harassment policy due to unconstitutionality).

In Pushback on Speech Codes,  Alliance Defense Fund Senior Counsel and former FIRE president David French says the comment “could have been ghost-written by Temple’s attorneys.” William Creeley adds “the real problem with this bogus comment seeing the light of day in a prestigious journal like the Harvard Law Review is that lawyers and scholars arguing on behalf of unconstitutional speech codes now have a piece of purportedly reputable ‘scholarship’ to point to as some kind of authority for their argument.” And that’s already happened; French reports that the comment has been cited by Los Angeles City College in a motion asking Judge George King to reconsider his injunction against the College’s speech code.

Obviously FIRE is trying to minimize the impact the comment may have by all means possible. For the moment, French has the last word in this firestorm over the comment:

the truth of the matter is that there is simply no credible constitutional argument for speech codes … that relies on  historic free-speech jurisprudence, controlling precedent, or the fundamental nature of the public university. The only real argument is ideological. So the speech code’s ideological defenders are left doing just what the students at the Law Review did — try mightily to pound the square peg of workplace harassment concepts into the round hole of the university’s marketplace of ideas.

When was the last time you saw a student comment achieve this level of debate or be cited in pleadings so quickly?