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A federal judge has enjoined Shippensburg University from enforcing key provisions of a speech code that bars all “acts of intolerance” — including racist, sexist and homophobic speech — after finding that the Pennsylvania university failed to show that the code was needed to protect students’ rights or to avoid disruption of the educational process. In his 32-page opinion in Bair v. Shippensburg University, U.S. District Judge John E. Jones III of the Middle District of Pennsylvania found that while the speech code was “obviously well-intentioned,” it simply went too far in attempting to regulate the speech of adult students. The ruling is a victory for attorneys David A. French of Greenebaum Doll & McDonald in Lexington, Ky., and William Adair Bonner of Media, Pa., who urged the court to “restore the marketplace of ideas and remind the university that it is a laboratory of democracy — not an incubator of indoctrination.” In an order handed down yesterday, Jones issued a preliminary injunction that bars the university from enforcing four sections of its speech code: “Acts of intolerance directed toward other community members will not be condoned. This is especially true, but not limited to, acts of intolerance directed at others for ethnic, racial, gender, sexual orientation, physical, lifestyle, religious, age and/or political characteristics.” “The expression of ones’ beliefs should be communicated in a manner that does not provoke, harass, intimidate, or harm another.” “No person shall participate in acts of intolerance that demonstrate malicious intentions toward others.” “Racism shall be defined as the subordination of any person or group based upon race, color, creed or national origin. It shall be a violation of this policy for any person or group to maliciously intend to engage in any activity, (covert or overt that attempts to injure, harm, malign or harass), that causes the subordination, intimidating and/or harassment of a person or group based upon race, color, creed, national origin, sex, disability or age. Shippensburg University’s commitment to racial tolerance, cultural diversity and social justice will require every member of this community to ensure that the principles of these ideals be mirrored in their attitudes and behaviors.” Jones found that “the university speech code, even narrowly construed, prohibits a considerable amount of speech … [that] is neither vulgar nor obscene.” Lawyers for the university argued that the speech code was “merely aspirational” and therefore was not subject to First Amendment scrutiny. Jones disagreed, saying “this argument fails because it is obvious that violations of the express provisions of the code subject Shippensburg students to the disciplinary process set forth therein.” Jones found that the speech code was “part of an attempt to achieve a utopian community within Shippensburg” in which “students are directed to respect the rights of other students in a world where reasoned, rational debate is the norm.” The university’s lawyers, Jones noted, argued that the code “will foster free speech, rather than discourage it.” But Jones said “this sword has two edges.” During the tenure of the university’s current president, Jones said, the speech code “has not been used, and likely will not ever be used, to punish students for exercising their First Amendment rights.” But in a lawsuit that presents a facial challenge to the code, Jones said, “our inquiry must assume not the best of intentions, but the worst.” “While we recognize that citing students under the suspect provisions has not been a common practice, in the hands of another administration these provisions could certainly be used to truncate debate and free expression by students,” Jones wrote. Jones found that the speech code was not saved by the fact that some of the forms of discrimination it prohibits are also prohibited by federal law, such as race and sex discrimination. “While the university’s objective of preventing forms of discrimination against these protected classes of individuals is certainly laudable, this ambition still runs afoul of First Amendment concerns if discrimination policies have the effect of prohibiting protected forms of expression,” Jones wrote. “Simply utilizing buzzwords applicable to anti-discrimination legislation does not cure this deficiency.” Jones found that the university went too far when it directed students to communicate their beliefs “in a manner that does not provoke, harass, intimidate or harm another.” “The concept of prohibiting communications which ‘provoke’ suggests that a student’s beliefs should not be communicated in a way that arouses interest and stimulates a response. Aside from the constitutional concerns of the policy, it is worth noting that such a view is inconsistent with our nation’s tradition of safeguarding free and unfettered interplay of competing views in the academic arena,” Jones wrote. “Communications which provoke a response, especially in the university setting, have historically been deemed an objective to be sought after rather than a detriment to be avoided. Moreover, the terms ‘provoke’ and ‘intimidate’ focus upon listeners’ reactions to speech,” Jones wrote. The government, Jones found, “may not prohibit speech … based solely on the impact that its offensive content may have on a listener.” Even offensive speech is protected by the First Amendment, Jones found. “As the Supreme Court has emphatically declared, ‘If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable,’” Jones wrote, quoting from the U.S. Supreme Court’s 1989 decision in Texas v. Johnson.

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