Dear President Spanier,
On behalf of the National Writers Union, I'd like to express our grave concerns about the Undergraduate Student Government (USG) Supreme Court decision denying registration to a student organization, Students Reinforcing Adherence in General Heterosexual Tradition (STRAIGHT). We understand that STRAIGHT has appealed this decision to the Student Organization Appeals Board. We sincerely hope that this board will reverse the prior ruling and permit STRAIGHT to register. Should this not occur, decisive action on your part will be necessary for Pennsylvania State University to avoid unnecessary and expensive litigation.
What the USG Supreme Court did was illegal--in defiance not only of the First Amendment of the US Constitution but of established case law. Viewpoint discrimination is patently illegal at a public university. See especially Rosenberger v. Rector and its cited precedents. In this case, a Christian student group sued the university because it wouldn't authorize payments for printing costs from the Student Activities Fund. The Supreme Court ruled in the students' favor, holding that the Universities actions violated:
"the principles governing speech in limited public forums...this Court has observed a distinction between, on the one hand, content discrimination--i.e., discrimination against speech because of its subject matter--which may be permissible if it preserves the limited forum's purposes, and, on the other hand, viewpoint discrimination--i.e., discrimination because of the speaker's specific motivating ideology, opinion, or perspective--which is presumed impermissible when directed against speech otherwise within the forum's limitations."Rosenberger was a difficult case because Rosenberger represented a Christian organization and the University of Virginia argued that funding them would violate the Establishment Clause of the First Amendment. STRAIGHT, however, is not a religious group and therefore their case is much stronger than was Rosenberger's.
In Police Department of Chicago v. Mosley the Supreme Court stated:
Above all else, the First Amendment means that the government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. To permit the continued building of our politics and culture, and to assure self-fulfillment for each individual, our people are guaranteed the right to express any thought, free from government censorship. The essence of this forbidden censorship is content control. Any restriction on expressive activity because of its content would completely undercut the "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open."The USG Supreme Court decision is astonishingly naive. The Court claims that it must "create an environment in which diversity and understanding of other cultures are valued." (Illegal viewpoint discrimination.) It claims that "STRAIGHT would have created much bitterness and tension in the Penn State community, as well as exacerbating anxiety and fears among the lesbian, gay, and bisexual community and their supporters." This is illegal on two counts: it burdens speech because of speculation about its effects (see New York Times Co. V. United States) and it burdens speech because of its emotive impact (see Cohen v. California). The decision further claims that STRAIGHT: "would not have fostered a positive image for, or have benefit to the University community in any substantial way. Indeed, the Court feels that the purpose of the organization came close to being detrimental to the University community." This is irrelevant--the purpose of student activities is not and can not be the enhancement of the University's "image." The USG Court suggested that this is not a First Amendment issue because registration was not a right but a privilege. Wrong. The rules of limited public forums apply and viewpoint discrimination is patently illegal. Moreover, Courts have historically accorded maximum protection to political speech, including political speech that is currently unfashionable or unpopular.
Should STRAIGHT not be registered and should the matter be settled through litigation, the best evidence supporting STRAIGHT's case is the USG Supreme Court decision itself--because the viewpoint discrimination is made nakedly apparent.
The statement made by the USG Supreme Court that personally alarmed me the most was, "the Supreme Court has indeed been committed to building a structure whereby every organization and individual can promote their views, without having to fear being directly opposed by an organization created for that purpose." (My emphasis). The mind boggles! Are they seriously saying, for example, that if a Young Republican club existed on campus they would refuse recognition to the Young Democrats? Do they really believe that they are so privileged that they should be allowed to "promote their views" without having to "fear" opposing views? Is Pennsylvania State really a place where students are taught to "fear" ideas, and are taught that the appropriate response to ideas one disagrees with is to use state power to silence the speaker? I hope that this is not the case, Dr. Spanier, for if it is, your university has failed, and failed miserably, in fulfilling what should be its most essential mission.
Finally, I want to emphasize that neither myself nor the National Writers Union are insensitive to the concerns of sexual minorities. Quite the contrary. I am a gay man myself and--having been born in 1942--I've experienced and fought homophobia almost every day of my live for nearly four decades. In 1991, the National Writers Union was debating affiliation with the United Auto Workers. As a Delegate to our annual assembly, I authored a resolution mandating that the NWU as an affiliate work within the UAW to amend their Constitution to be inclusive of sexual orientation. Our efforts were successful, and the UAW Constitution was so amended in 1992.
Because of the universal human urge to silence those whose speech offends us, freedom of speech is a most fragile right, a right that demands the most uncompromising defense. The free-speech rights of all minorities are vulnerable--but the rights of sexual minorities most of all. As a proud gay man, I consider the First Amendment my best friend. In 1959, when I entered college, the viewpoint of the members of STRAIGHT was the nearly universally accepted and promulgated viewpoint in our society. It was held not just by conservatives--it was held by "liberals," elected officials, the medical and legal professions, academics, and especially the media. Those dark days may well return. But if they do return, it will not be because the members of STRAIGHT are allowed to exercise their First Amendment rights of speech and association. It will be because the First Amendment will be so enfeebled by those who fear ideas that it protects none of us, sexual minorities least of all.
The National Writers Union represents freelance writers nationwide. We are journalists, book authors, poets, writers of short fiction, business and technical writers, academics, cartoonists, and workers in all genres. Our membership comprises some of the most distinguished names in American letters. We abhor the abuse of both state and corporate power to crush freedom of expression.
We hope that you will act prudently and save Pennsylvania State University from unnecessary, expensive, and embarrassing litigation. Nothing will be gained by foolishly turning the members of STRAIGHT into First Amendment martyrs. We are most eager to hear your views on this vitally important issue.
Sincerely,
Robert B. Chatelle, Co-Chair, Political Issues Committee
National Writers Union, UAW Local 1981 AFL-CIO
cc: Barbara Copland; Ann Beeson, ACLU; Hans Bader, Center for Individual Rights; Leanne Katz, National Coalition Against Censorship; David Mendoza, National Campaign for Freedom of Expression; Anne Green, People for the American Way; other members of the Free Expression Network; Aimee Harris, The Collegian; Nat Hentoff, Village Voice and Washington Post; Harvey Silverglate, Boston Phoenix; Bay Windows; other members of the press