This column originally appeared in Human Events on August 27, 2009.

Harvard’s Sad Censorship Campaign

by Jessica Peck Corry

Poor, poor Harvard. The prestigious institution has once again found itself in the embarrassing position of defending a push for campus censorship. This round’s sad irony: student leaders are now the ones trying to throw the First Amendment out the school bus window.

The Harvard Law Review, a student-edited publication claiming President Barack Obama and four current U.S. Supreme Court justices as alumni, recently endorsed a major screw up on its own pages after it ran an eight-page factually-void analysis of the nation’s latest First Amendment case law.

The piece, authored and edited by unnamed students (consistent with the journal’s policy of group authorship and editing),specifically took issue with DeJohn v. Temple University, a 2008 3rd Circuit Court of Appeals case striking down Temple University’s broad sexual harassment policy as unconstitutionally overbroad. In addition, it argued that campus administrators should be afforded broad latitude, similar to that provided to high school principals or employers, in their ability to shut down controversial speech.

While acknowledging that the Temple policy “may properly raise constitutional questions,” the article’s authors still backed the policy, saying its chilling effect did reach to a level of causing a “deterrent effect on legitimate expression,” as required to strike down a campus harassment policy.

This conclusion was made in spite of the exhaustive speech prohibited, which included, “[A]ll forms of sexual harassment…including the following: an unwelcome sexual advance, request for sexual favors, or other expressive, visual or physical conduct of a sexual or gender-motivated nature when…(c) such conduct has the purpose or effect of unreasonably interfering with an individual’s work, educational performance, or status, or (d) such conduct has the purpose or effect of creating an intimidating, hostile or offensive environment.”

Imagine life as a Temple student under this policy, where attempting to get a date, benign eye contact with a stranger, or an honest classroom dialogue about heated political issues could land you in hot water with the speech police.

Proving their status as legal novices, the student authors also threw in the possibility of a “limiting instruction” as a way to address concerns about the policy’s broad prohibitions. But for those sanctioned under the policy, such an addition would offer little comfort, as a tyrannical majority of administrators would still have the power to determine whether the “purpose” of questioned speech was sufficiently evil to constitute a violation.

Shaky in terms of its philosophical conclusions, the journal’s argument is also legally flawed — connecting dots where none could have been properly drawn. The saddest part is the argument’s source: young legal scholars, ideally the world’s leading litigators of tomorrow, who believe law students and faculty are so weak they must be shielded from adverse viewpoints.

Constitutional experts quickly pounced on the journal’s analysis. According to the Foundation for Individual Rights’ Kelly Sarabyn, “the [Harvard] analysis does not acknowledge that any case law on speech codes exists, let alone the fact that prior to DeJohn, eight different federal courts struck down speech codes as unconstitutional.”
In fact, courts have been united in their push to strike down censorship in higher education. In addition to DeJohn, seven of the eight cases on point threw out “harassment” policies similar to the one at issue in DeJohn, with the eighth case going a step further by articulating the actual harassment eligible for prohibition. As Sarabyn concludes, defining offensive speech under a “harassment policy” does not magically render it constitutional.
As much as they might want to, private institutions cannot run from First Amendment protections simply because of their private status. While all colleges accepting federal funding must ban legitimate harassment under the 1964 Civil Rights Act, they are not entitled to make such restrictions overbroad. “As the Supreme Court has made clear, true harassment in the educational context is conduct ‘so severe, pervasive, and objectively offensive’ that it effectively bars the victim’s access to an educational opportunity or benefit,” Sarabyn recently wrote.

The Harvard analysis, meanwhile, rejects even the minimal protections afforded under DeJohn, where the court concluded that university speech or harassment codes must only provide students with the same free speech rights of younger students in primary or secondary schools. And while the Harvard analysis also suggests that college students could also be properly censored under a broader framework utilized to prohibit workplace harassment, such a comparison is improper, given both its lack of legal basis and a elementary misunderstanding of the vastly different atmospheres, and thus free speech standards that should be applied to the two environments.

Harvard’s harried relationship with speech goes back for at least two decades, notably punctuated by its creation of a speech code in 1996, a move coming in response to a growing push for political correctness. An inflammatory parody by conservative students mocking radical feminism a few years earlier only provided fuel to the fire. In addition, Harvard also earned the scorn of radical feminists in 2007 after then-Harvard President Larry Summers sparked outrage for discussing a hypothesis that biological differences between men and women played a role in scientific abilities and interests. In response, MIT’s Nancy Hopkins led an emotional charge against Summers, seemingly unaware that her behavior only furthered a thesis that women might be just a little more emotional than men. In the end, Hopkins won and Summers was booted off campus.

Ultimately, law schools should be first in line to defend even the most offensive speech. But they’re not, and sadly, Harvard isn’t alone in its continued censorship campaign. In 1994, it took a ragtag team of crusading law students, including my husband, Robert J. Corry, Jr., to litigate into extinction Stanford’s own speech code, which had provided severe punitive sanctions for any speech failing to meet political correct standards of acceptability.

Today’s law students should be very concerned. “Law schools are supposed to teach us to analyze and understand opposing perspectives, but they don’t achieve this when they attempt to shield us from any viewpoints with which we might disagree,” said Bresee Sullivan, a third year student at the University of Denver, which is also my alma mater.

Sullivan was outraged earlier this year when her school’s dean sent out a campus-wide email warning students and faculty about a student-initiated display containing offensive material. The source of outrage: pro-life materials provided by a small coalition of Christian law students. There were no mutilated fetuses or proclamations of abortion-seekers as murderers. Instead, students quietly displayed posters and distributed leaflets documenting benign scientific images explaining fetal development.

Still, the dean’s message was clear: certain perspectives are unwelcome and should be shunned. While the campus frequently serves as host to liberal student groups condemning “blood” diamonds, supporting radical feminist viewpoints, or promoting safe abortion access, administrators apparently believed students were too weak to handle viewpoints allegedly not shared by the majority.

“In the real world, we’re going to have way more at stake than just our fragile feelings and we should be prepared for the prospect of our perspective losing out to other arguments,” said Sullivan, who is both pro-choice and Republican. “Otherwise, we’re doing a disserve to our clients and to our judicial system as a whole.” Fortunately, Denver’s dean has since been replaced by a new leader — one who has proven unwavering commitment to a diversity of viewpoints.

Sullivan is right. Without exposing law students to true diversity — diversity of thought — we have failed them before they ever even step foot in a courtroom for the first time. Harvard may lead the national rankings in terms of its formal reputation, but when it comes to free speech, it definitely earns an “F”.

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Jessica Peck Corry (Jessica@i2i.org) is a policy analyst with the Independence Institute in Golden, Colo., where she specializes in land use, higher education, and civil rights policy.”

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When free speech means life or death
Don’t demean those fighting for their health care

By Jessica Peck Corry

This column originally ran in the Colorado Daily on August 24, 2009

Free speech can be complicated, as evidenced by the call from U.S. Rep. Betsy Markey (D-Fort Collins) for “civility” in the passionate debate over President Barack Obama’s plan to socialize American health care.

At town hall meetings and through online campaigns, millions of Americans have expressed heated opposition to Obama’s proposal.

Markey, justifiably nervous about the response she’ll face at her own upcoming meetings, plans to provide attendees copies of George Washington’s “Rules of Civility & Decent Behavior in Company.”

The Denver Post’s Monte Whaley writes that “if voters angry over (Obama’s) attempts to overhaul the nation’s health care system don’t heed her plea, maybe they’ll listen to the father of our country.”

Markey emphasizes Washington’s first rule: “Every action done in company ought to be with some sign of respect to those that are present.” Markey implores participants to “respect one another. Don’t yell at people. Don’t hold a sign in front of someone’s face. You may not agree with what they say, but everybody deserves a right to speak.”

However, invoking Washington in America’s current debate yields new questions. Would America’s first president encourage respectful debate or call for a revolution against expanded government control?

According to Washington expert Joseph C. Smith, the analysis is complicated. While Washington encouraged political civility, he recognized the necessity to fight against oppression.

“He obviously did not believe that civility was more important than freedom,” Smith said. “Otherwise he would have condemned the notoriously uncivil Boston Tea Party, which he did not.”

As Smith notes, Washington backed a resolution in the Virginia House of Burgesses expressing solidarity with Bostonians and calling for a day of prayer and fasting. When Virginia’s colonial governor responded by dissolving the chamber, Washington still observed the day, a move Smith calls an “in your face” gesture.

At critical moments, Washington believed the need for civil discourse was outweighed by the call for freedom. While history books will define whether this is one of those moments, recent events have certainly put Democrats in a tough position. Having remained silent as liberal radicals repeatedly have silenced the speech of others, they now proclaim the First Amendment’s necessity.

Democrats are mum every October as radicals make their annual Denver pilgrimage to shut down the city’s Columbus Day Parade. They said nothing as protest ringleader and ousted University of Colorado professor Ward Churchill waged his censorship campaign on the Boulder campus, shouting down countless political opponents, including David Horowitz.

Democrats failed to condemn paid CU staffers who welcomed former University of California Regent Ward Connerly to campus years ago by donning faux Klu Klux Klan garb and holding signs calling Connerly “a puppet for the White man.”

There was no voice of outrage after students, during a taxpayer-funded lobbying trip to Washington, D.C., interrupted a congressman with, “Education is a right! Not just for the rich and white!”

Certainly, America’s health care debate, and the debate over how it should proceed, will continue. There have been some on both sides of the political aisle guilty of attempting to silence opposition.

But to understand where Obama’s opponents are coming from, look to the words of patriot Patrick Henry, who, in 1775, famously proclaimed, “Give me liberty or give me death.”

Ultimately, for families facing serious health problems — resistant to any suggestion of rationed care — this is about fighting for the freedom to choose life over death.

Jessica Peck Corry is the director of the Independence Institute’s Campus Accountability Project.

see “NORML newsmakers” here. Interview is last 14 minutes of hour-long show.

Monday, August 10, 2009

Available at MomLogic.com

A controversial new movement promotes pot use instead of alcohol. These parents want to ban pot prohibition because they believe it will save lives.

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Gina Kaysen Fernandes: Alcohol and marijuana are the two most popular — and easily accessible — substances on college campuses, but they’re not treated the same under the law. Possessing pot can land you in jail, but drinking too much at a keg party can kill you. “This highlights the absurdity in how we treat these two substances,” said Mason Tvert, the co-founder and executive director of the group Safer Alternative for Enjoyable Recreation, or SAFER. Mason has made it his personal mission to debunk the government’s anti-marijuana message. “The fact that we have students drinking themselves to death made us realize we had to start some awareness on college campuses,” says Mason.

According to the U.S. Centers for Disease Control and Prevention, nearly 20,000 Americans die every year as a result of drinking too much. It’s a tragedy that Mason narrowly escaped. He nearly died from an alcohol overdose in the summer of 2000. The high school senior guzzled beer all day at a country music festival in Arizona. “Beer was widely available, and my friends gave it to me,” recalls Mason. Paramedics rushed him to a nearby hospital, where doctors pumped his stomach. Mason’s mother didn’t know what happened to her son until the next day, because he was 18 years old and the hospital was not required to notify his parents. “He could have died — I was so worried about that,” said Diane Tvert. As a practicing physical therapist, Diane is supportive of her son’s efforts to dispel marijuana myths. “I would so much rather he smoke pot than drink and get behind the wheel of a car,” said Diane.

Many like-minded moms share her opinion. “I want my children to grow up to believe that laws are just and rational, and if there’s injustice, they should fight it,” said Jessica Peck Corry, a Denver-based Republican political strategist. Jessica, a former GOP candidate for state senate, is also a cannabis activist who campaigned for a ballot initiative that would decriminalize marijuana possession in Colorado. “We can no longer afford to wage war on a substance that people can grow in their backyard. It’s a war we can’t win,” says Jessica. As a mother of two young children, Jessica says she plans to have an open dialogue with her kids about drug and alcohol use, even though, she says, “I want to place them in this bubble where I can protect them.” Jessica believes that by arming her daughters with accurate information, “they will respect their bodies and make good decisions.” These moms insist they’re not pushing their kids to abuse drugs, but prefer they choose the lesser of two evils. “Things have gotten so skewed. People look at pot like it’s the bogeyman. It’s not going to kill you; alcohol can kill you,” said Diane.

The statistics on the dangers of alcohol are staggering. Drinking on college campuses led to 1,400 deaths, 500,000 injuries, and 70,000 cases of sexual assault or date rape, according to a 2002 study by the National Institute on Alcohol Abuse and Alcoholism (NIAAA) task force.

The risks associated with getting stoned are fuzzier. No studies have found a direct link between marijuana overdose and death. There’s no objective research that finds pot use contributes to violent or aggressive behavior. “They’re correct. Typically people don’t get violent; I’ll be the first to admit that,” said Ken Winters, Ph.D., a psychiatry professor at the University of Minnesota-Fairview who specializes in adolescent substance abuse. “But there are plenty of issues with marijuana. It’s not a healthy option,” says Winters, who believes parents are fooling themselves if they think smoking pot has no long-term consequences. “Prolonged marijuana use appears to increase memory and learning problems,” said Winters, who adds, “like tobacco, habitual pot smoking can also lead to cancer and respiratory diseases.” Winters also warns there’s new research emerging that suggests marijuana can effect your DNA, which has risky implications. He thinks that parents who rationalize marijuana use are being naïve. Instead, Winters recommends we teach our kids to drink responsibly by sticking to the two-drink rule. “It’s no fun to be the ‘no-fun police,’ but that’s what you got into, that’s part of parenting.”

The so-called “Marijuana is Safer” movement is gaining momentum among college students, but is facing a lot of resistance from campus officials. Mason believes the institutions are part of the problem. On one hand, school administrators are trying to promote responsible drinking, yet “universities are fostering this behavior,” argues Mason, by allowing beer companies to sponsor campus events like fraternity parties.

A number of well-known party schools are starting to mellow out on pot penalties. Students are adopting SAFER measures at about a dozen college campuses nationwide, including Colorado State University, University of Colorado-Boulder, Florida State University, University of Maryland, University of Texas-Austin, University of Central Florida, and Ohio State University. Students on these campuses are working to make sure the school penalties for marijuana use are no greater than those for alcohol use.

Mason makes his case for SAFER Referendums in a new book hitting shelves this month, titled “Marijuana is Safer, So Why Are We Driving People to Drink?.” Mason co-authored the book along with two other prominent legalization advocates, Steve Fox of the Marijuana Policy Project, and Paul Armentano of the National Organization for the Reform of Marijuana Laws (NORML).

Marijuana is so easily accessible that one in three Americans have tried it at least once, including the three most recent U.S. presidents. The nation’s marijuana business is estimated to rake in $113 billion in annual sales. That’s not far behind the alcohol industry, which pockets $130 billion per year. For parents like Jessica, it’s the fiscal concerns that make her blood boil. “It costs $30,000 a year to incarcerate a pot dealer, and we spend $10,000 a year to educate a child.” Jessica thinks it’s time that more mothers come forward “because for so long, others have been exploiting our children by perpetuating this war on drugs in the name of our children.”

Gina Kaysen Fernandes is an award-winning documentary producer and a former TV news producer/writer. She lives in Los Angeles with her husband and son.

How couch potatoes can save the world

By Jessica Peck Corry

This column originally appeared in The Denver Post on August 3, 2009

This just in: if you want to save the world, you may just want to stay on your couch. And if you must get up, throw a steak on the grill.

According to a mounting arsenal of evidence, efforts to fight global warming could bring devastating consequences to the environment.

Take American dairy cows, for instance. These anti-environmentalist livestock are threatening our very human existence because of their emissions. In response, a proposal is floating around the nation’s capital seeking to tax these pests for their intentional release of methane into the atmosphere.

As Congressman James Sensenbrenner, R-Wisc., recently warned agribusiness leaders, we should brace ourselves for a showdown over “cow farts.” The idea — a brainchild of vegan Europeans — is to cut down on human dairy consumption as a way to reduce the number of cows needed to meet demand.

While the U.S. Environmental Protection Agency has distanced itself from such a proposal, Sensenbrenner and others aren’t convinced. Under a 2007 Supreme Court decision, the EPA is afforded broad discretion in its regulation of greenhouse gasses. The American Farm Bureau calculates the total cost a methane tax to the average American farmer as between $80 and $175 per animal.

According to a British Parliament study, such a tax could rid grocery store shelves of dairy and beef entirely. Bad for business and consumer choice, the move could also be bad for the environment. Farmers would be forced to raise the price of milk. Consumers would seek out alternatives — including soy and organic choices.

While the soy industry has worked diligently to avoid its “gassy” reputation, endless websites proclaim soy’s “flatulence factor,” an embarrassing reality resulting in greater methane production. Organic options present their own problem, with organic cattle emitting more methane and producing less milk than their hormone-injected peers.

Getting cars off the streets may also harm the cause. According to another British study, people opting to walk to the store instead of driving may cause more damage than their gas-guzzling neighbors.

Study author and environmentalist Chris Goodall concluded that the average 3-mile drive to a supermarket would add 0.9 kg of carbon dioxide to the atmosphere, whereas, “if you walked instead, it would use about 180 calories. You need about 100 [grams] of beef to replace these calories, resulting in 3.6 [kilograms] of emissions, or four times as much as driving.”

Sounds crazy until you consider the cost of food transportation and refrigeration. The only real solution to fighting greenhouses gasses, according to Goodall: exercise less, eat less, and become a couch potato.

But even in agnostic Europe, today defined by religious fervor for fighting global warming, skepticism is growing about our sanity or ability to fight global warming through reduced emissions.

As the G-8 Summit wrapped in Italy last month (with officials returning to their homelands via private jet), American and German leaders gathered in Berlin for the American Council on Germany’s annual summit. Predictably, global warming was a hot topic. But while one Bundestag member boasted that Germany has seen the creation of more than 200,000 green jobs during the current economic downturn, he was subsequently forced to concede that the jobs were created almost exclusively through government dollars.

And these jobs may just hurt the cause. As Holger-Heinrch Haibach, a member of the Bundestag’s global warming committee, told me, legislators were recently informed that Germany’s program to reduce carbon dioxide emissions by cars may result in greater nitrogen pollution.

Time to go sit under a tree to ponder? Think twice. While trees are heralded as shields against global warming, researchers from multiple nations have found that plants contribute 10 to 30 percent of all methane in the atmosphere.

Oh, you’ve just got to love that cattle smell. It may just be better than all other alternatives. Unless, of course, the alternative involves chilling out on your couch.

Jessica Peck Corry (Jessica@i2i.org) is a policy analyst with the Independence Institute in Golden.