Here is the text of a letter sent to Colorado State University on behalf of LPCSU,
SSDP, and others at CSU by FIRE.

Dear President Penley:
As you can see from our Directors and Board of Advisors, the Foundation for
Individual Rights in Education (FIRE) unites leaders in the fields of civil rights
and civil liberties, scholars, journalists, and public intellectuals across the political
and ideological spectrum on behalf of liberty, legal equality, freedom of religion,
academic freedom, due process, and freedom of speech and expression on
America’s college campuses. Our web page, www.thefire.org, will give you a
greater sense of our identity and activities.

We are writing to express our grave concern regarding restrictive speech codes
currently in place at Colorado State University. In August 2006, FIRE recognized
Colorado State as a “Speech Code of the Month” for the Hate Incidents Policy in
your Residence Hall Handbook. We hoped that public awareness would have
been sufficient motivation to amend this policy and are disappointed to see that
this has not been the case. Since that time, we have also been contacted by a
group of concerned Colorado State students about several additional policies that
unlawfully restrict students’ right to freedom of speech.

As a public institution, Colorado State is bound by the First Amendment and may
not violate the expressive rights of its students. In spite of this, Colorado State
maintains the following unconstitutional restrictions on speech:

1) The aforementioned “Hate Incidents” policy, which prohibits
“expressions of hostility against a person or property because of a
person’s race, color, ancestry, national origin, religion, ability, age,
gender, socio-economic status, ethnicity, or sexual orientation.”

2) The “Peaceful Assembly at CSU” policy, which designates just one area, the Lory
Student Center Plaza, as “the ‘Public Forum’ space for Colorado State
University—open to all individuals for the purpose of free speech,” and requires
students wishing to assemble to reserve the Plaza “at least 14 days in advance of
the event.”

3) The Residence Hall Handbook’s “Advertising Policy,” which prohibits the use of
“offensive language” as well as any reference to alcoholic beverages or drugs.

We will address these policies in the order in which we have cited them above.

1) The Hate Incidents Policy: A public university such as CSU cannot lawfully ban “expressions
of hostility.” Under even the most rudimentary definition of freedom, people are allowed to be
hostile. Only when those expressions cross the line into constitutionally unprotected
harassment—i.e., when they are, in the words of the U.S. Supreme Court, “so severe, pervasive,
and objectively offensive that [they] effectively bar[] the victim’s access to an educational
opportunity or benefit”—may a public university like Colorado State prohibit them. In fact, the
Supreme Court has explicitly held on numerous occasions that speech cannot be restricted
simply because it offends people. In Street v. New York (1969), the Court held that “[i]t is firmly
settled that under our Constitution the public expression of ideas may not be prohibited merely
because the ideas are themselves offensive to some of their hearers.” In Papish v. Board of
Curators of the University of Missouri (1973), the Court held that “the mere dissemination of
ideas—no matter how offensive to good taste—on a state university campus may not be shut off
in the name alone of conventions of decency.” In Terminiello v. Chicago (1949), the Court held
that “a function of free speech under our system of government is to invite dispute. It may
indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction
with conditions as they are, or even stirs people to anger.”

From a practical standpoint, this policy shuts down a lot of legitimate discussion in the residence
halls, which are traditionally spaces where students interact openly and learn from one another in
an informal way: many formative discussions take place over late-night pizza in the dorms.
Under this policy, the university could punish a student for saying the school gives “rich snobs
preferential treatment” (an expression of hostility because of socio-economic status), or for
harshly criticizing the Catholic Church for preventing the ordination of women (an expression of
hostility because of religion).

It is not a legitimate response to say that the university wouldn’t punish this type of expression,
because the mere existence of this vague and overbroad policy may—because of the threat of
punishment it imparts—prevent those discussions from ever taking place. This is known as a
“chilling effect” on free speech, and it is something the First Amendment does not permit.

2) The Peaceful Assembly Policy: The only possible defense of Colorado State’s assembly
policy would be that it is a “reasonable time, place and manner” restriction as allowed by cases
like Ward v. Rock Against Racism (1989). There is nothing “reasonable,” however, about
transforming the vast majority of the university’s property—indeed, public property—into a
“censorship area,” and in maintaining a system of onerous requirements by which students must
abide in order to exercise their fundamental rights. Federal case law regarding freedom of
expression simply does not support the transformation of public institutions of higher education
into places where constitutional protections are the exception rather than the rule. Time and
again, courts have determined that to be considered legal, “time, place, and manner” restrictions
must be “narrowly tailored” to serve substantial governmental interests. The generalized concern
for order that underlies the establishment of free speech zone policies is neither specific enough
nor substantial enough to justify such restrictions.

FIRE has challenged the establishment of free speech zones at universities across the nation,
including at West Virginia University, Seminole Community College in Florida, Citrus College
in California, the University of North Carolina−Greensboro, Texas Tech University, and the
University of Nevada at Reno. In all of these cases, the institutions challenged have either
decided on their own to open up their campuses to expressive activities or have been forced by a
court to do so. For instance, in FIRE’s case at Texas Tech, a federal court determined that Texas
Tech’s policy must be interpreted to allow free speech for students on “park areas, sidewalks,
streets, or other similar common areas…irrespective of whether the University has so designated
them or not.” See Roberts v. Haragan, 346 F. Supp. 2d 853 (N.D. Tex. 2004). Colorado State
would be well advised to take this into account in considering its own policies.

Moreover, Colorado State’s strict regulations on speech are tragic in light of the fact that the
special function of the university as a whole, in any free society, is to serve as the ultimate “free
speech area.” Colorado State affirms this sentiment in its General Catalog, which states that
“[t]he policy of Colorado State University is to encourage members of the University community
to engage in discussion, to exchange ideas and opinions, and to speak, write, and publish freely
in accordance with the guarantees and limitations of our state and national constitutions.”
Colorado State’s Peaceful Assembly Policy runs afoul of both the First Amendment and the
university’s own commitments to free speech by restricting free speech to just one area of the
campus and by requiring two weeks of advance notice for events.

3) The Advertising Policy: As discussed above, the university cannot restrict speech simply
because it is offensive to some listeners. Moreover, the policy does not specify whether the
speech must be objectively offensive—that is, offensive to a reasonable person as opposed to
subjectively perceived as offensive by more sensitive listeners—nor does it specify who exactly
serves as the final arbiter of what is offensive. Presumably, that arbiter is someone within the
university administration, and any policy that gives the university unfettered discretion to
determine what speech is and is not permissible is dangerously arbitrary and overbroad.

In addition, the prohibition on “any reference to alcoholic beverages or drugs” in advertising is
also overbroad. This policy, taken literally, prohibits the advertisement of Alcoholics
Anonymous or Narcotics Anonymous meetings, as well as the advertisement of debates on
pertinent topics such as marijuana policy reform or the sentencing disparity between offenders in
possession of crack cocaine versus powdered cocaine. Again, the fact that the university might
claim it does not use the policy to prohibit those types of advertisements is irrelevant; the fact is
that the policy, on its face, prohibits an entire category of constitutionally protected speech,
which is simply unacceptable at a public university such as Colorado State.

Please spare Colorado State the embarrassment of fighting against the Bill of Rights—a
statement of both law and principle by which the university is legally and morally bound. We
urge Colorado State to undo these unjust policies, and to tell the world that free speech at
Colorado State is to be celebrated, honored, and broadened—not feared, restrained, and hidden.
Let your students exercise their basic legal, moral, and human rights; let them speak, assemble,
and protest as their consciences dictate.

FIRE is committed to using all of its resources to abolish the unconstitutional limits on freedom
of expression at Colorado State. We request a response on this matter by March 26, 2007.

Sincerely,

Samantha Harris
Director of Legal and Public Advocacy

cc:
James T. Dolak, Executive Director, Housing and Dining Services, Colorado State University
Michael E. Ellis, Executive Director, Lory Student Center, Colorado State University
Blanche Hughes, Vice President for Student Affairs, Colorado State University
Seth Anthony
Ian Bezek
Keith Anderson
Robert Drost
Andrew Lopez
Amanda Broz
Brooke Malcolm
Ben Prytherch