Free Speech Under Assault at Sinclair Community College


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Yet another assault on First Amendment rights on college campuses is taking place in Dayton, Ohio. Last October, Sinclair Community College (SCC) prohibited a paralegal studies student, Ethel Borel-Donohue, from distributing pamphlets to her fellow students after a class. The pamphlets focused on the link between abortion and the use of oral contraceptives to higher rates of breast cancer. October is Breast Cancer Awareness Month, but Judge Michael Brigner, Paralegal Program Chair, banned the distribution after receiving a complaint from a student who had had an abortion, telling Borel-Donohue she “had no right to hand out any materials to students in the classroom.” Borel-Donohue, contacted the Foundation for Individual Rights in Education (FIRE) for help, claiming she was worried about repercussions from the incident. FIRE has taken up her cause.

Last Friday I spoke with Madeline Iseli, newly-appointed Vice President of the Sinclair College Advancement Division, who explained to me that SCC has restrictions contained in the Sinclair Community College Campus Access Policy which allows the “Board of Trustees of Sinclair Community College to regulate access to such property in such a manner that the purposes of the Community College are adequately served.”

Sounds reasonable enough. Yet in “Section IV, SOLICITATIONS AND LITERATURE DISTRIBUTION:” paragraph 3, the restrictions become problematic: “Literature may not be distributed in working areas, including: classrooms, laboratories, lecture halls, gymnasiums, libraries, offices, work stations, conference rooms, and corridors leading directly thereto which are an integral part of the work areas.” Ms. Borel-Donohue reveals the Constitutional dubiousness of such restrictions. ”So you can distribute literature, but you just can’t do it anywhere. I’ve been to several universities, but Sinclair, it seems, is really totalitarian in their control,” she said.

Enter FIRE. In February, the organization sent a letter to Sinclair President Steven Lee Johnson, noting that campus policies restricting distribution of literature outside of class time are unlawful. FIRE cited a 1979 federal district court decision, Solid Rock Foundation v. Ohio State University to back up its contention. In that case, the court ruled that Ohio State’s attempt to “regulate the distribution of plaintiffs’ publication so that the campus will be ‘aesthetically pleasurable,’” was “likely not to pass constitutional muster” and that distribution of [of literature] is not the kind of activity which “materially disrupts classwork or involves a substantial disorder or invasion of the rights of others.” Furthermore, in addressing the issue of complaints as a basis for restricting the distribution of literature, the court noted that  ”[T]here may be complaints from those in the campus community who desire not to be subjected to plaintiffs’ views, such as appear to have prompted the University action in the first place. But the University may not, in the interest of protecting particular persons from an unpopular viewpoint, substitute its judgment for the judgment of the individual, who has a right to determine whether or not he is willing to receive plaintiffs’ message.”

FIRE president Greg Lukianoff whittled the ruling down to plain language. ”If someone’s claim to be offended by speech were all it took to overrule the First Amendment, we would all be reduced to silence… the Constitution does not recognize a ‘right not to be offended,’” he said.

Yet Sinclair College attorney, General Counsel Lauren M. Ross, who is also the state of Ohio’s assistant attorney general, insists such restrictions do not violate the First Amendment. ”Sinclair embraces the principles of the First Amendment to the U.S. Constitution and the right of free speech …Citizens are free to peacefully share their thoughts and distribute literature on campus in common areas such as atriums, eating areas, and much of the Physical Activities Center and the outdoor plazas,” she said. She also sent a letter to FIRE vice president Adam Kissel citing both the aforementioned College Campus Access Policy and the  Student Judicial Affairs Code of Conduct as reasons for restricting Borel-Donohue.

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  • sedoanman

    I have been a monthly contributor to FIRE for years and have read all their newsletters in which they describe their speech code cases. Not one, not even one contained a case in which the code was unconstitutional and in which those responsible were fired.

    One would think that normal people would look at what is happening to speech codes in other schools and clean up their own act, but no. We are dealing with self-righteous liberals who think they are exempt from the law; and since nothing happens if they are caught, they adopt a "why-do-anything-to-correct-our-policies?" attitude. So organizations like FIRE are forced to dismantle the "Great Pyramid" one block at a time.

    • ajnn

      "two thirds of public universities have un-Constitutional speech codes"

      As a practicing attorney I see these 'speech codes' as an unparalleled opportunity to advance conservative issues and themes.

      Enforcing these codes against the intolerant and provacative Left can be an effective tool to bring out the issues.

      THESE 'SPEECH CODES' ARE A GOLD MINE FOR CONSERVATIVE ADVOCACY !!!!

      • sedoanman

        "As a practicing attorney I see these 'speech codes' as an unparalleled opportunity to advance conservative issues and themes."

        "Enforcing these codes against the intolerant and provacative Left can be an effective tool to bring out the issues."

        "THESE 'SPEECH CODES' ARE A GOLD MINE FOR CONSERVATIVE ADVOCACY !!!! "

        Pray tell how.

        • ajnn

          under the law, an agency is required to follow their own rules.

          applying these rules to the racist jew-hatred will embarreass them and win a case.

          the injuries are inferred as 'impairment of educational opportunity', as indicated in Brown. v. Board of Ed.

          This is very fertile ground for aggressive, very aggressive advocacy.

  • wingwiper

    Incrementalism, by definition.

    And, it has been destroying our culture one day at a time for the past sixty years.

    • Ozzy

      The past Sixty years would put us at, when,.. approximatively 1950, women had only had the vote for 30 years and there were still laws concerning a citizen's color. this was our culture. and it needed destroying.

      • wingwiper

        And, this is what was decided it should be replaced with:
        http://hotair.com/archives/2011/05/11/video-texas

      • ajnn

        Hmmmmm, so you want to 'destroy' rather than 'reform' ? classic.

        I wonder how many millions will die from your 'destroy' prescription ?

  • John

    While Congress passed a resolution in 1998, that is without any legal meaning. It is simply a resolution–right up there with recognizing a college team that wins a national championship.

  • StephenD

    Just makes it that much more acceptable when we're told by an international court that we cannot say something that may offend Islam…that would be hate speech. After all, "that's not who we are"…I would bet and give odds that our POTUS would back such measures. How far away from such proposals do you think we are; especially when our Academia is supporting it?

  • dpg

    The policy as qouted does not restrict distribution outside of the buildings, on the campus. There may also be other "non-working" areas where it is permitted. The US
    Constitution applies to the federal government and does not regulate work places. You do not have free speech at work. Ironically the same folks who are so defensive about their right to free speech are less concerned over the established ( by the Supreme Court of the United States) constitutional right of women to make decisions about their own bodies and health and to choose to get an abortion if necessary. Some are even OK with harassment, terrorism (bombings) and murder (including a security guard at a clinic and a doctor in church) to deny women that right. So hand out your literature in the light of day, not in the classroom.

    • ajnn

      universities take federal funds and, more importantly, they are often arms of the individual states. And the states have constitutions with the same 1st A rights for their citizens.

      your point is only relevant for a private college.

  • mike

    education about breast cancer link to abortion should be told, if you can prevent women from dying from breast cancer, truth may hurt but dying a slow death hurts more.

  • Prfsr Dubious

    I would be interested to see what other "literature" has been allowed to be passed out without restrictions. If they truly don't allow any, except in approved areas, it wouldn't be so bad, but my suspicion is that is not the case. How much propaganda do the professors pass out during class time?

  • Bob

    I am a bit concerned about the clause "without fear of retribution". The First Amendment does not guarantee that the speaker is free from consequences of actions–only that the speech is prohibited. It is much more reasonale to expect the clause "without fear of retribution from public sector institutions or employees of said institutions". After all, if someone in their private life wishes to yell bad things at the speaker or boycott the speaker's place of business then that is their right as well. But it is absolutely unacceptable for any publicly funded institution to do that.

  • The_Lord_Regent

    I wonder if the "university" administration can be charged criminally for 1st Amendment violations under the Klu Klux Klan act. Opinions?

    • sedoanman

      Interesting. See http://www.enotes.com/major-acts-congress/ku-klux… and page down to "KEY PROVISIONS AND THEIR CURRENT RELEVANCE".

      As a sidebar, I'd like to see someone pursue anti-sexual harassment laws as bills of attainder because they target only men.