University of South Carolina – November 23, 2015

Free Speech event or attack on minorities?

Columbia, SC

Administrators at the University of South Carolina (USC) served two student groups with a “Notice of Charge” letter for discrimination, after the groups organized an outdoor event entitled “Free Speech on Campus: A Dialogue of the First Amendment.” The two student groups, the College Libertarians and Young Americans for Liberty (YAL), claim that they scheduled the event with the consent of a university administrator and conducted it in a designated Free Speech zone on campus. It featured homemade posters that replicated several forms of speech that had been restricted or reprimanded at other colleges across the United States. These included large drawings of swastikas and some racial epithets. USC allegedly threatened student organizers with expulsion, and as a result, the students sought help from a nonprofit Free Speech advocate, the Foundation for Individual Rights in Education (FIRE), in bringing a lawsuit. Ross Abbott, one of the co-organizers of the event and the plaintiff in FIRE’s lawsuit, said the posters were meant to serve as an exciting way to stimulate discussion and not as an attack against minority students.

Key Players

Ross Abbott (‘16) was a student of business and president of the College Libertarians at USC in 2015 when he decided to host the Free Speech event with his friend and YAL President Michael Kriete. Upon serving the students with the “Notice of Charge” letter, the university threatened Abbott and the other students with expulsion. Abbott became the plaintiff in Abbott v. Pastides in 2016, when he joined forces with FIRE to sue USC and its President, Harris Pastides, in U.S. District Court for South Carolina for allegedly violating the First Amendment.

FIRE is a nonprofit organization that investigates civil liberties in academia and especially defends First Amendment rights in higher education. FIRE assisted Abbott and the student groups in their civil suit against the university as a part of its Stand Up For Free Speech Litigation Project. Until the court dismissed the USC lawsuit in 2017, plaintiffs in FIRE’s Litigation Project remained undefeated. StandUpForFreeSpeech.com claims that the project has seen 10 victories and $400,000 in settlements, and that 250,000 students have benefited from its legal actions.

Further Details

Abbott, Kriete, and their respective student groups were inspired to host the Free Speech event when they learned how many other students across the country had seen their First Amendment rights purportedly violated by their universities. In a video interview with FIRE, Kriete recalls that he and Abbott were outraged by the “safe space” movement at other colleges, aimed at providing a nonjudgmental environment void of emotional or physical harm.

Abbott and Kriete wanted to explain to fellow students how safe spaces and other restrictions on speech were direct violations of the First Amendment. After detailing their plans to Director of Campus Life Kim McMahon and allegedly gaining her approval, the student groups set up a series of tables in the Free Speech zone on campus, the only place where they say the University permits students to express their opinions. Both the students and FIRE describe the process of gaining approval as clumsy, explaining that requiring students to seek approval for the time, place, and content of proposed events from a university official ironically restrains Free Speech. “You actually have to wait for the privilege of using this spot on campus,” FIRE’s Vice President of Legal and Public Advocacy Will Creeley says in the video.

The event’s setup featured posters that repeated the “speech of other groups that had been censored across the country. . . . The idea was that people would see what we were doing, would come over . . . and we could explain it to them,” Abbott says in the FIRE video. Examples of incidents included a “Taco Tuesday” sign in homage to a California State University, Fullerton sorority that was sanctioned in 2014 for a Mexican-themed recruitment event; a swastika to represent the George Washington University student who was suspended and evicted from university housing for hanging a bronze swastika on a dorm bulletin board in a supposed effort to restore the symbol to its Hindu origins; and a poster with the definition of the word “wetback,” in reference to a professor at Brandeis University who was reprimanded for using the slur against Latin Americans as a historical term in a lecture. All of these examples were cases that FIRE had investigated. The event also featured a large baby crib emblazoned with the words “safe space.”

After University Police received complaints about the display, the student groups were served with a “Notice of Charge,” which indicated that the university was investigating them for discrimination. According to FIRE, three individuals walking by the event complained that the display was “hate speech” that “could have incited a riot,” and suggested that Abbott should be punished and the student groups defunded.

Abbott and Kriete claim they were threatened with punishment and possible expulsion. They were required to meet with Carl Wells, assistant director of equal opportunity programs (who later became a defendant in Abbott’s lawsuit), for 45 minutes, in which Wells allegedly asked Abbott to justify each poster. In turn, Abbott requested from Wells that negative notations on his academic record be expunged and that the University adopt the so-called University of Chicago Principles, which state that controversial speech is protected on campus under the First Amendment.

Two weeks later, Wells notified Abbott that his case had been dropped, but Abbott says that Wells made no mention of his requests. FIRE says that the “inaction” of Wells and the university prompted the lawsuit, which Abbott and the student groups filed in February 2016. According to the Southern Poverty Law Center, the plaintiffs called USC’s Free Speech policies “overbroad, restrictive and unconstitutional.” The suit asserted that a Free Speech zone is antithetical to the First Amendment and complained that the school’s nondiscrimination policy is too narrowly tailored. USC later said in court documents that it had amended some of these policies while the case was being litigated, but the plaintiffs did not accept those actions as an adequate solution.

Outcome

Abbott’s Case Dismissed

In July 2017, Senior United States District Judge Margaret B. Seymour dismissed Abbott’s case against USC on the grounds that the university’s actions were “a narrow approach to addressing the rights of all students on campus: those who participated in the event and those who felt discriminated by it.” In her decision, Judge Seymour indicated that Free Speech rights are not absolute, especially if some students’ Free Speech infringes upon other students’ rights to be free from discrimination. USC’s actions were justified, said Judge Seymour, because universities have “a substantial interest in maintaining an educational environment free of discrimination and racism.”

However, Judge Seymour also found that Abbott, Kriete, and their respective student groups could have self-censored in the remaining months of the academic year due to fear of more persecution, thus “chilling” their Free Speech rights. The Judge suggested that USC better balance the necessity of Free Speech and the necessity of freedom from discrimination.

The plaintiffs plan to appeal the court’s decision, according to FIRE.

External References:

Students Interrogated for Organizing Free Speech Event File First Amendment Lawsuit Against University of South Carolina, FIRE

South Carolina students file free speech lawsuit against university, Southern Poverty Law Center

No Limits: University of South Carolina Students Fight for Free Speech, FIRE on YouTube

Abbott v. Pastides

Student groups to appeal after court dismisses lawsuit against University of South Carolina administrators, FIRE

Prepared by Adelina Lancianese ‘17

August 22, 2017