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FIRE Supports KKK, ADF Backed Homophobe Jennifer Keeton In Her Suit Against Augusta State

12/03/10-by Bridgette P. LaVictoire
Continuing their support of the Alliance Defense Fund and opposing LGBT rights and the rule of scientific method, the Foundation for Individual Rights in Education has filed an amicus brief in support of KKK backed Augusta State University student Jennifer Keeton. The claim is that, by requiring Ms Keeton to undergo “diversity sensitivity training’ and remediation assignments, the university violated Ms Keeton’s First Amendment rights while ignoring the fact that her religious beliefs are in direct contradiction with the Diagnostic and Statistical Manuel IV, and the professional standards of her chosen career.

Jennifer Keeton is proponent of reparative therapy, and would council her lesbian and gay clients that their ‘lifestyle choice’ was sinful and to change despite the fact that the accurate and scientific data shows that this is not the case. Keeton is represented by the ADF, and has so far lost her case.

Keeton would, of course, be better served by attending Liberty University. However, FIRE filed the brief that was written by UCLA law professor Eugene Volokh in support of Keeton and her homophobia despite the fact that the courts have supported the universities in these matters in the past based upon the professional standards of the college and the profession.

It should also be noted that, despite the fact that FIRE believes that the university is treating Ms Keeton’s First Amendment rights with isolated action, these are the standards that are applied to all students and not just Ms Keeton, and are similar to others across the nation.

Here is what Volokh wrote

The First Amendment forbids such government retaliation based on a person’s exercise of First Amendment rights. To prove retaliation, “private citizens” (as opposed to government employees) “must establish that the retaliatory acts would deter a person of ordinary firmness from exercising his or her First Amendment rights.” Bennett v. Hendrix, 423 F.3d 1247, 1252 (11th Cir. 2005). Students of ordinary firmness would certainly be deterred from expressing their dissenting viewpoints if the cost of such expression is many hours of extra university imposed burdens, coupled with the risk of expulsion from the program.

Besides violating Keeton’s own First Amendment rights, the university’s retaliation also sent a powerful message to other students: If you express views like Keeton’s, prepare to suffer the same consequences-prepare to incur many hours of extra obligations, and to put yourself at risk of expulsion. Just as campus speech codes that impose discipline for constitutionally protected speech unacceptably “inhibit [students] in expressing [their] opinions,” “in class” and outside, so ASU’s actions here likewise inhibited student expression.

In this respect, the university’s actions are much like those of the State of Florida in Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241, 94 S. Ct. 2831 (1974). There, Florida law required newspapers that published criticisms of candidates to also publish the candidate’s reply. Tornillo defended the law on the grounds that the law “‘ha[d] not prevented the Miami Herald from saying anything it wished,’” but the Court disagreed. The law, the Court held, “exacts a penalty on the basis of the content of a newspaper,” a penalty that included the “cost in … time” as well as in materials and space. Id. at 256-57, 94 S. Ct. at 2839. The Court continued:

Faced with the penalties that would accrue to any newspaper that published news or commentary arguably within the reach of the right-of-access statute, editors might well conclude that the safe course is to avoid controversy. Therefore, under the operation of the Florida statute, political and electoral coverage would be blunted or reduced. Government-enforced right of access inescapably “dampens the vigor and limits the variety of public debate.”

Precisely the same is true here: The university’s action “exacts a penalty on the basis of the content” of student speech, a penalty that includes the cost in time (likely more time than was usually required by the right-of-reply law in Miami Herald) as well as risk. Moreover, “[f]aced with the penalties that would accrue” to any student who made statements that could arguably be treated by the university as requiring “remediation,” students “might well conclude that the safe course is to avoid controversy. Therefore, under the operation of the [University policy], [student commentary on controversial issues] would be blunted or reduced.” “Government-enforced ['remediation' policies] inescapably ‘dampen[] the vigor and limit[] the variety of [student] debate.’”

Finally, the university’s actions sent another message as well: If you challenge the views that the administration seeks to inculcate, prepare to have even your private conversations with your classmates reported to the authorities, scrutinized for evidence of wrong thinking, and used as the basis for university retaliation. This creates the very sort of “atmosphere of suspicion and distrust” that the Supreme Court condemned in Sweezy v. New Hampshire, 354 U.S. 234, 250, 77 S. Ct. 1203, 1212 (1957).

(Citations and footnotes omitted; brackets in original.)

If Ms Keeton wishes to become a councilor and act in opposition to the standards of her profession, then she should attend a university that is more open to supporting her homophobia rather than those that want her to act in a professional manner.