As faculty members devoted to the study of constitutional issues, we wish to defend Penn State University's position regarding recent events on campus designed to educate students about women's issues and sexual health matters.  These provocatively entitled events sparked controversy among some state legislators, particularly State Rep. John Lawless of Montgomery County who has threatened to suspend funding to the University because he finds the speech at these events offensive and disagreeable.

                  We are not here to attack Rep. Lawless, but to remind him about a concept that has been safeguarded and sacred in this democracy for well over 200 years.  That concept is freedom of expression.  It is protected by both the Pennsylvania Constitution and the First Amendment to the United States Constitution.  While courts decide First Amendment issues of free speech every day, the underpinnings of free expression are as time honored as the Constitution itself.

                  Rep. Lawless does not like the message he heard at the event he attended.  Yet, information about sexual health issues for young people constitute ideas—important ones for today’s society—and what better place to examine and debate ideas than a university campus—the quintessential “marketplace of ideas”?  As the United States Supreme Court wrote in 1972, “the college classroom with its surrounding environs is peculiarly the ‘marketplace of ideas.’” Fifteen years earlier, the Court remarked that “teachers and students must always remain free to inquire, to study, and to evaluate, to gain new maturity and understanding.” 

                  Rep. Lawless wants to remove the students’ speech from the marketplace of ideas.  The preferred remedy under the Constitution, however, for speech with which we disagree is not to remove it from the marketplace, but to add more speech designed to counteract it.  Justice Louis Brandeis, in his concurring opinion seventy years ago in the criminal syndicalism case of Whitney v. California, articulated the premise of what today is known as the doctrine of counterspeech.  When it came to expression that was perceived by some to be dangerous, threatening, or harmful, Brandeis wrote, “If there be time to expose through discussion the falsehoods and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”

                  We do not always agree with what our students say or do, and perhaps they could frame issues a bit more gingerly, but we do not—and legally cannot—attempt to limit their expression simply because someone might find the message distasteful or offensive.  Clearly, the Supreme Court has made it well-settled law that bad taste is not a sufficient reason to censor speech.  Perhaps the late Justice William Brennan summarized it best when he wrote:

                  Rep. Lawless objects to the students’ speech because he finds it offensive.  This raises an important and troubling problem.  In particular, how is the concept of offensiveness defined?  The United States Supreme Court in 1971 famously wrote that it is “often true that one man’s vulgarity is another’s lyric.”  The Court added that “because government officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.” 

The Court’s comments suggest the dangers of the slippery slope of censorship.  For example, would the state legislature prohibit the speech of pro-life advocates on campus who often demonstrate with graphic posters of aborted fetuses because some people find those images offensive?

                  As a state-related university, Penn State is a part of government for purposes of the First Amendment.  All the prohibitions government face when attempting to restrict speech apply to Penn State.  Rep. Lawless, in essence, is asking Penn State to violate settled principles of law and is basing his decision on the University’s funding on its refusal to do so.  We find that to be a rather odd position for a lawmaker. 

Quite simply, the legislature should not condition funding on an unconstitutional mandate.  It cannot say, “We’ll fund you, but only if you agree to waive your First Amendment rights.”

                  We find it troubling that Rep. Lawless would embrace a system where government is the arbiter of good taste and sound judgment and can dictate what can and should be said.  While college students do not always exercise good judgment, they are young adults and should be treated as such.  There is no better time or place for young adults to learn about the values of a democratic society than their years in college.

Respectfully submitted,

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Robert D. Richards                                                                            Clay Calvert

Associate Professor of                                                                      Assistant Professor of

 Journalism and Law                                                                         Communications and Law

The Pennsylvania State University                                              The Pennsylvania State University

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Robert M. Hendrickson                                                                  Thomas M. Place

Professor of Higher Education                                                 Professor of Law

The Pennsylvania State University                                            Dickinson School of Law of

                                                                                                              The Pennsylvania State University

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Geoffrey R. Scott

Professor of Law

Dickinson School of Law

The Pennsylvania State University