It's Time to End Public University Speech Zones
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by David Hacker, Alliance Defending Freedom, Jurist Hotline, May 21, 2014
Free speech zones on public university campuses sound wonderful in the abstract—a special zone just for free speech! But don't be fooled. Colleges sell the idea of free speech zones like used car salesmen. They make students think that they want the zones, but in reality, students don't want them and they don't need them. And in the end, students realize they've been duped.
Several recent news stories highlight the troubling irony of so-called free speech zones on public university campuses: they are used to stifle speech rather than encourage it. In one story, administrators at the University of Hawaii-Hilo stopped two students from handing out free copies of the US Constitution—the very document that gives us the right to free speech—because the students were standing outside the university's "free speech zone." According to a complaint [PDF] filed in federal court in Hawaii, the university's free speech zone is essentially a muddy ravine that occupies less than one percent of the university's campus. This is the only place students may speak on campus without prior approval from administrators.
In another story, administrators at Modesto Junior College stopped a student from distributing free copies of the Constitution on Constitution Day. The reason? Although he was standing in front of the student center on campus, a likely forum to communicate with his peers, administrators told him that he could not distribute the Constitutions without getting permission five days in advance and even then he could distribute them only in the "free speech area." Like the Hawaii case, the complaint alleged that the so-called "free speech area" was a mere 600 square foot stage. The college eliminated the speech zone and settled [PDF] the case in March.
These cases would be funny, if only they weren't true. Sadly, despite decades of legal precedent declaring university campuses to be the "marketplaces of ideas" in keeping with their historic role, the restrictions public universities place on student speech today would come as a great surprise to James Madison and the Founding Fathers. A basic review of public forum case law reveals the multiple legal problems these policies present.
Generally speaking, to assess a First Amendment claim arising on government property, the US Supreme Court determined in Cornelius v. NAACP Legal Defense and Education Fund that a court must first "identify the nature of the forum, because the extent to which the Government may limit access depends on whether the forum is public or nonpublic." Streets, sidewalks and parks are traditional public forums, where restrictions on speech are subject to strict scrutiny. Most public university campuses resemble traditional public forums with streets, sidewalks and open-air quads used by students not only to get around campus, but to socialize and debate ideas. As the court said in Widmar v. Vincent, the "campus of a public university, at least for its students, possesses many of the characteristics of a public forum."
When analyzing public university campuses, many courts have ruled that student free speech rights are at their apex in the common outdoor areas of campus. And yet some universities still persist in attempting to classify the entire campus as non-public or limited public forums with lesser protections. But in University of Cincinnati Chapter of Young Americans for Liberty v. Williams, the US District Court for the Southern District of Ohio commented that it was unaware of any precedent establishing that a "public university may constitutionally designate its entire campus as a limited public forum as applied to students." (In a limited public forum, restrictions on speech need only be reasonable and viewpoint neutral.) This makes sense. As the US Court of Appeals for the Fifth Circuit noted in Hays County Guardian v. Supple, students "live and work on campus, making the campus . . . a 'town' of which the resident student will be a 'contributing citizen.'" Thus, it should be no surprise that the Ninth Circuit recently declared that Oregon State University's campus was a public forum for students.
Universities often intertwine speech zone policies limiting the location of student speech with policies that require advanced approval for speech. These prior restraints censor speech before it occurs, so there is a heavy presumption against their constitutionality. As the Supreme Court said in Forsyth County v. Nationalist Movement, in order to survive constitutional scrutiny, a prior restraint may not delegate overly broad discretion to a government official; it may not be based on the content of the message if it regulates the time, place or manner of speech; it must be narrowly tailored to serve a significant governmental interest; and it must leave open ample alternative channels for communication.
Campus speech zones often fail the content-neutrality requirement because the policies implementing these zones grant administrators unbridled discretion. Thus, administrators allow popular student groups to speak outside the designated zones, but deny the same accommodations to less popular speech, like prolife or Christian students. That is exactly what happened in Pro-Life Cougars v. University of Houston, where university policy allowed administrators to restrict speech to certain areas of campus if it was "potentially disruptive." The Supreme Court warned of these dangers in Forsyth County. It said that policies which vest government officials with unbridled discretion to regulate speech will violate the content-neutrality requirement by allowing for veiled discrimination against some speakers.
Universities claim that free speech zones protect student safety, preserve campus aesthetics and prevent disruption of the educational environment. But restricting student speech to one area of campus is not narrowly tailored to any of these interests. Placing all student speech in a small zone on campus actually causes more danger to student safety by requiring competing student groups to voice their ideas in close proximity. Everyone likes a beautiful college campus, but campus aesthetics can be preserved by prohibiting litter, not speech. And preventing substantial disruption of the educational environment can be accomplished by prohibiting bullhorns and loud events near classroom buildings, regardless of where the speech occurs on campus.
Of course, free speech zones close off all alternative channels of communication in the outdoor areas of campus. Alternatives are not ample if the speaker is unable to reach his intended audience. So if students want to set up a "debt clock " [PDF] near the economics department, but the speech zone is located in a different part of campus, the policy fails constitutional review because it does not allow the students to reach their audience.
Students have been incredibly successful in challenging speech zone policies in court. In Roberts v. Haragan, Texas Tech University limited speech to a gazebo on campus. A student who wanted to distribute religious literature elsewhere on campus sued and the Northern District of Texas struck down the policy because its regulation of even simple conversation between classmates was not narrowly tailored to the university's interest in preserving the educational environment.
In Williams, the university restricted all "demonstrations, picketing and rallies" to a free speech area which constituted less than 0.1% of the campus. The Southern District of Ohio enjoined the policy because it determined that the outdoor areas of the university's campus were designated public forums for students to speak freely and the policy was not narrowly tailored to the university's interest in maintaining a peaceful and safe campus.
Similarly, in Burbridge v. Sampson, the South Orange Community College District restricted student gatherings of twenty or more people to three "preferred" areas. The Central District of California enjoined the policy because the college failed to articulate any interest in limiting the location of speech and the designation of three preferred areas only did not leave open ample alternative channels of communication.
Despite courts uniformly striking down university speech zone policies, they persist from coast to coast. "Free speech zones" might sound great at first glance, but they put the First Amendment rights of students in a box and in some cases, a ridiculously small box. When free speech zones prevent students from distributing the US Constitution, we know it is time to put the zones in a box—six feet under—and let students participate freely in the "marketplace of ideas."
David J. Hacker serves as senior legal counsel with Alliance Defending Freedom at its Sacramento, California Regional Service Center, where he leads litigation efforts to uphold the constitutionally protected rights of Christian students, faculty and staff at public universities across the nation. He joined Alliance Defending Freedom in 2005 and earned his J.D. from Washington University in St. Louis, Missouri.