Lawsuit Alleges Oklahoma State University’s Policies Violate Free Speech

Edmon Low Library on the Oklahoma State University Stillwater Campus in Autumn 2008. Helluvamatt/CC-BY-3.0/Wikimedia Commons

A free-speech group has filed a lawsuit against Oklahoma State University (OSU) over policies that it alleges violate constitutional rights to free speech.

The lawsuit, filed by Speech First, a Washington-based nonprofit organization dedicated to the defense of freedom of expression on campuses, challenges several university policies that it says “deter, suppress, and punish speech about political and social issues of the day.”

“Under these policies, students can be disciplined for ambiguously defined ‘intimidating’ speech, discussing politics in emails, commenting in class, or even, in the words of the University, for showing ‘a disproportionate weight in favor of or against an idea or thing,’” the group said in a Jan. 10 statement.

In an interview with The Epoch Times, Cherise Trump, executive director of Speech First, no relation to Donald Trump, said that contrary to what people might expect, some of the most serious cases of censorship that have come to her organization’s attention have happened on campuses in “red” states, namely Texas, Florida, and now Oklahoma.

For a university to try to censor words and curtail students’ legal political activities, while drawing on taxpayer money, sets the school directly at odds with the explicit language of the First Amendment, Trump noted.

“Public universities are taxpayer funded, and therefore extensions of the state, and they are going to be very much more beholden to the Constitution than private universities,” Trump said.

“Obviously, Oklahoma is a red state and you would think they would be favorable to the Constitution. But students there have told us the campus is not friendly to free speech.”

Trump said that the public character of the university hasn’t stopped it from enacting and enforcing official policies that bar students from engaging in online activity that wouldn’t get them into trouble at most schools and that make it easy for one student to report another for perceived “bias,” without offering a clear definition of what such bias does or doesn’t entail. This has resulted in a censorious atmosphere and an environment where students who might otherwise want to engage in good faith in discussion or debate over social and political topics refrain from speaking up, for fear of the potential consequences.

In its complaint against OSU, filed in the Western District of Oklahoma on Jan. 10, Speech First draws attention to the school’s policies regarding the use of computers, under which it’s a punishable offense for a student to use his or her OSU email account to “transmit political campaigning.” Under OSU’s Code of Conduct, the complaint alleges, violations of this policy can result in the offender being locked out of the school’s network.

The complaint characterizes OSU’s email accounts and internet networks as “traditional public forums” and charges that the prohibition against the transmission of such political content amounts to “a content-based restriction on political speech” and therefore a violation of the First Amendment.

Right to Assemble

In her interview with The Epoch Times, Trump characterized this prohibition as one that would curtail totally harmless activities, not just on the part of conservative students but of those with any ideology or affiliation.

“You have college Democrats and Republicans. What if they want to host a campaign watch with their fellow students? If they send out an email, would they lose access to their email account?” she said.

Another section of the complaint addresses the university’s policies with respect to “bias incidents.” These policies complement, and go considerably further than, the bans already in place at OSU against harassment, bullying, verbal abuse, and threats, the complaint charges.

“On top of its speech codes, the university has adopted a ‘bias incidents’ policy designed to deter, suppress, and punish disfavored and controversial speech,” the complaint states.

In that policy, according to the plaintiffs, the school relies heavily on a vagueness and lack of definition so severe as to fall afoul of commonly understood legal standards under the “vagueness doctrine” codified through such landmark Supreme Court decisions as Grayned v. City of Rockford in 1972.

The complaint cites the definition, in OSU’s official policies, of bias as “a disproportionate weight in favor of or against an idea or thing, usually in a way that is close-minded, prejudicial, or unfair” and of a bias incident as “actions committed against or directed toward a person or property that are motivated, in whole or in part, by a bias against a person or group of persons who possess common characteristics.”

The vagueness of such definitions falls far short of commonly accepted legal standards, and under this standard, making a comment such as “Democrats are wrong about the economy” could be considered a bias incident subject to disciplinary action.

The complaint goes on to enumerate some of the instances of speech subject to the bias incident policy, such as a “Comment in Class,” a “Comment in Writing,” an “Offensive Picture or Image,” or even “Incorrect name or pronoun usage.”

Informing on Others

OSU explicitly encourages anyone who has seen or experienced such a bias incident to report it using the “Bias Incident Report” form posted on the university’s website, the complaint notes. People can submit such reports anonymously, and they are encouraged to provide the personal details of the alleged perpetrators of such incidents, including their name, phone number, email address, and other sensitive personal information.

The complaint lists, but doesn’t name, a number of students who have come to the attention of Speech First because they feel that their mainstream positions on certain issues, such as opposition to illegal immigration, affirmative action, or abortion, or criticisms of Black Lives Matter, might incur charges of harassment or bias, and they feel too cowed to express their views in class or even to engage in discussion of these topics at all.

The definitions of bias and harassment that OSU has codified are unconstitutionally vague, Speech First’s complaint alleges.

“Students know this definition could mean anything, anyone who has an opinion you disagree with. It’s all determined by how someone interprets something that you’ve said,” Trump said.

“Our goal is to get these policies removed or rewritten.”

Trump said she believes the OSU’s lawyers are currently working on a reply brief.

OSU’s policies aren’t unique but are increasingly favored at universities that draw on taxpayer funds. One case where Speech First brought a successful challenge involved the University of Central Florida in Orlando. Speech First’s attorneys argued the case before the 11th Circuit Court and brought about a settlement under which the university agreed to abolish its bias response team and refrain from bringing it back in anything close to the same form.

In response to an inquiry from The Epoch Times about the Speech First lawsuit, a representative of Oklahoma State University didn’t address any of the specific claims raised, saying it was “inappropriate to comment on pending litigation.”

“Oklahoma State University values and cherishes everyone’s right to free expression on campus as an essential pillar of democracy. The free exchange of ideas and opinions is part of the educational experience and fosters excellent critical thinking insight. We respect different viewpoints and strive to promote healthy and considerate discussion,” the spokesperson wrote in an email.