Newsletter

September 2008

Victory For Free Speech As Third Circuit Issues Ruling Against Temple University

PHILADELPHIA, August 4, 2008—Today, the United States Court of Appeals for the
Third Circuit issued an opinion in
DeJohn v. Temple University upholding a decision by a federal district
court that Temple University’s
former speech code is
unconstitutional. Temple’s code prohibited, among other things, “generalized
sexist remarks and behavior.” In September 2007, the Foundation for
Individual Rights in Education (FIRE) filed a
friend-of-the-court brief urging
the Third Circuit to uphold the lower court’s ruling.

“The Third Circuit’s ruling today is a clear and crucial victory for freedom of
speech at our nation’s public colleges and universities,” FIRE President Greg
Lukianoff said. “The court’s decision serves as unequivocal notice to university
administrators across the country that the First Amendment still applies on
campus. Today’s victory demonstrates, yet again, that public universities
maintain unconstitutional speech codes at their peril.”

The
lawsuit against Temple University was filed in the U.S. District Court for the
Eastern District of Pennsylvania in February 2006 by attorneys from the Alliance
Defense Fund (ADF) on behalf of Temple student Christian DeJohn. DeJohn’s
complaint alleged both that Temple had engaged in actions that violated his
rights and that Temple was violating the free speech rights of all of its
students by maintaining an unconstitutional speech code.

Temple finally revised its speech code more than a year into the lawsuit, but
had argued on appeal to the Third Circuit that its original policy was
constitutional despite the District Court’s holding to the contrary. In today’s
ruling, the Third Circuit held that Temple’s speech code was unconstitutional
because it restricted speech protected by the First Amendment.

In
DeJohn v. Temple University, the District Court had declared Temple
University’s former speech code unconstitutional. On appeal, Temple argued that
the Supreme Court’s 2007 ruling in Morse v. Frederick—a decision
upholding the narrow right of high schooladministrators to regulate
student speech “reasonably regarded as encouraging illegal drug use”—permitted
Temple to place broad and onerous restrictions on the free speech rights of
college students. In response, FIRE’s brief argued that Temple’s policy
contradicts both decades of legal precedent and
the guidance of the federal Department of
Education’s Office for Civil Rights, which is responsible for enforcing
harassment laws on campus.

Today’s ruling, authored by Judge D. Brooks Smith, unequivocally states that “[d]iscussion
by adult students in a college classroom should not be restricted.” In holding
that Temple’s former speech code “provides no shelter for core protected
speech,” Judge Smith found the policy to be facially overbroad.

“As
adults, college students are entitled to the full protection of the First
Amendment on campus,” William Creeley, FIRE’s Director of Legal and Public
Advocacy, said. “Today’s opinion makes clear that attempts to equate the rights
of high school students with those of college students are without merit.
Thankfully, the Third Circuit has dealt a devastating defeat to those seeking to
infantilize our nation’s college students.”

FIRE’s amicus brief was joined by a remarkable coalition of
organizations including the ACLU of
Pennsylvania, the Christian Legal
Society, Collegefreedom.org,
Feminists for Free Expression,
the Individual Rights Foundation,
Students for Academic Freedom, and
the Student Press Law Center. The
coalition was represented in the filing by attorney L. Theodore Hoppe, Jr.

CONTACT:

William Creeley, Director of Legal and
Public Advocacy, FIRE.

FIRE Press Release, August 4, 2008.