Fighting the zoning of free speech
Colleges are being sued for speech policies they say protect students
Ruben Reyes, a student at University of Texas at El Paso, said he knew he could face punishment for jumping up on an outdoor stage to give a speech about the challenges women face as a minority.
The junior said he realized he was violating the school’s handbook because he did not ask for permission to give the speech on campus. Shortly after Reyes gave his speech he was notified that he was being investigated for misconduct.
UT El Paso is just one of several schools nationwide with a policy that prohibits students from giving speeches, holding rallies or distributing literature outside of designated areas of campus often referred to as “free-speech zones.” Students are often required to apply days in advance if they want to publicly speak outside of the set boundaries of these zones. At some schools, students might have a zone the size of a football field and at others it could be smaller than an average classroom.
College administrators argue that “free-speech zones” are necessary in order to protect students from being disrupted on their way to class by demonstrators. At the same time, colleges say they are upholding students’ right to free speech as long as they do it in designated areas.
This year several students and civil liberties organizations have contested speech codes, arguing that most codes violate the First Amendment. Lawsuits have sprung up at various schools across the country in an attempt to remove or revise speech zone policies.
Reyes said it was the university’s accusations of misconduct that prompted him to take legal action at UT El Paso. Although the university is alleging that Reyes delayed a band that was scheduled to play on the stage, he argues that the university’s charge is a way to censor his speech.
He filed suit in March, claiming that the university’s speech zones violate his free-speech rights. Since then, seven other students have joined the suit with Reyes.
University officials refused to comment on Reyes’ judicial hearing or lawsuit.
“This university is doing so much harm by stifling political debate,” Reyes said. “UTEP should be the gateway to the rest of the world, but at this point it is just the gate.”
Speech zones under “fire”
Civil liberties organizations like the Foundation for Individual Rights in Education and the American Civil Liberties Union have deemed free-speech zones unconstitutional.
FIRE is a nonprofit organization that defends and promotes free speech, rights of conscience, and academic and religious freedom at campuses nationwide.
Greg Lukianoff, its director of legal and public advocacy, said zones are becoming a tool for universities to repress speech. By making certain areas into “free-speech zones,” schools are essentially making everything else a censorship zone, he said.
“Speech zones were once designed to keep people from being woken up during the middle of the night by protests,” Lukianoff said. “They are now being used to move protests, or any other kind of speech that someone might find bothersome, to places far away from where anyone can hear it.”
Several schools also have speech codes that punish students for using racist or sexist language, Lukianoff said.
In a letter to colleges and universities in July, the Office for Civil Rights of the U.S. Department of Education said, however, its rules against discrimination are not intended to restrict free speech.
OCR enforces several statutes that prohibit discrimination on the basis of sex and race in federally funded educational programs and activities, according to the letter. The harassment must must be so serious that a student cannot participate in an educational program.
“OCR’s regulations and policies do not require or prescribe, conduct or harassment codes that impair the exercise of rights protected under the First Amendment,” the letter states.
Lukianoff said speech zones and codes are antithetical to the nature of college campuses. Requiring students to ask permission is “utterly unconstitutional” and a “mockery of constitutional law,” he added.
In an attempt to rid college campuses of speech zones, Lukianoff said FIRE has filed lawsuits on behalf of students at three separate colleges. FIRE’s ultimate goal, he said, is to win a case against a public university or college in each of the 12 federal court circuits, thus setting precedents so all schools will need to eliminate their restrictive speech policies.
The battle for speech begins
In April, FIRE filed its first lawsuit against Shippensburg University in Pennsylvania on behalf of two students. The suit takes issue with the school’s code of conduct that prohibits speech that is “inflammatory, demeaning, or harmful towards others.” The university also limits students’ demonstrations and speeches to two speech zones on campus.
Lukianoff said Shippensburg does not have an official “speech code,” but FIRE is concerned with the language in the university’s code of conduct. He said schools often hide speech codes in harassment policies or codes of conduct.
Peter Gigliotti, Shippensburg spokesperson, said the school encourages free speech, but it is expected that students comply with “general societal values of civility, community and citizenship.”
“We feel that we are right and we will continue to defend ourselves against the lawsuit,” he said. “We disagree that this is unconstitutional. We are not telling anyone what to say and what not to say.”
FIRE saw similar problems with Texas Tech University’s speech zones and speech code and filed suit on behalf of third-year law student Jason Roberts. Besides prohibiting students from using sexual slurs, the school also restricts free speech to several zones on campus.
Roberts said he filed the suit after he was denied a request to give a speech outside of a zone.
“The zone limits the effectiveness of your right to speak,” Roberts said. “It puts you in a box. If you are in a ‘free-speech zone’ and everyone knows it is there then people can walk around it and avoid the speech that is taking place in the zone.”
Prior to the lawsuit, the university began implementing a new interim policy that increases the number of speech zones on campus from one 20-foot gazebo to four different zones, said Victor Mellinger, associate general counsel for Texas Tech. He said the university also has shortened the approval process from six days to two for students who want to hold demonstrations or speeches outside of those zones.
Schools change their policies
The argument that speech zones are unconstitutional seems to be spreading, Lukianoff said. Several schools have revised or dropped their policies because of public outcry, he said.
Lukianoff said the reason some schools drop their policy is because they do not realize that speech zones are a form of censorship until someone raises the issue. Other schools just need public pressure to review their policies, he added.
The University of Maryland at College Park revised its speech zone policy in response to a lawsuit filed by the American Civil Liberties Union in March.
University spokesperson George Cathcart said the new policy removed the “free-speech zones” and now allows students to hold demonstrations or protests in all areas of the campus. Students who plan on holding demonstrations involving large groups of people are still required to apply for permits, he said.
Previously, all demonstrations were restricted to zones. Students were required to apply for permits to engage in free-speech activities elsewhere. Maryland students also were limited to one sidewalk to hand out written material.
Arthur Spitzer, the ACLU attorney representing the two students who filed the suit, said the new policy is still unconstitutional because it forbids non-students from participating in the same free-speech activities as students. Non-students must be invited by a student, faculty or staff to speak on campus, or they must apply in advance for a permit.
“We have agreed with the school’s regulations with respect to the rights of students,” he said. “But the lawsuit will be continuing with respect to the rights of outsiders and the rights the students have to hear what they have to say.”
He added that reasonable restrictions on speech are acceptable.
“We don’t think students have the right to hand out leaflets during class, or to have a demonstration that would be disruptive to students taking a test,” he said. “But as a general matter, if students want to stand on a sidewalk and talk to people they should be able to do it.”
Cathcart said the university filed a motion to dismiss the lawsuit.
“We don’t see the campus as being a place that anybody can come at any time and say whatever they want anywhere,” he said. “In order to maintain civility, we think it is important to guarantee folks’ safe passage so they can conduct their work on campus. We are trying to find a balance that affords people their right to speak out as well as their rights to go about their daily business.”
Citrus College in California removed its speech zone policy in June after it was sued by FIRE, marking the organization’s first victory of its three lawsuits.
The rescinded policy had restricted free speech to three areas on campus and required students to notify the campus security office of their intent to use the areas and what they planned to speak about. FIRE sued the college on behalf of student Christopher Stevens in May.
Michelle Small, director of publications and student recruitment, said the college decided to drop the speech policy until it could be revised. A committee of faculty, staff and students will reevaluate the policy in the fall, she said, and the board of trustees will vote on a final policy.
Western Illinois University President Al Goldfarb threw out a policy regarding speech zones after a group of students brought it to his attention.
“The president decided to drop the policy that designated certain areas for free speech,” said spokesperson John Maguire. “There is no better place for freedom of expression than a public university.”
Two colleges in Texas recently revised their speech zone policies in response to lawsuits filed by anti-abortion groups.
At the University of Houston, a settlement was reached in June after an anti-abortion group sued the university for refusing to let them display photographs of dead fetuses in heavily traveled areas of the campus in 2001.
Under the settlement, the university was required to revise its policy to allow for more free speech areas. The university was also required to pay $93,000 to the Pro Life Cougars in attorney fees.
The University of Texas at Austin is still in the middle of a lawsuit that was filed by another anti-abortion group in 2002. But in response to the suit, the school created a task force to revise the free speech policy.
The new policy, which is in effect, removed all speech zones, opening up the entire college to free speech.
The policy still bans students from holding loud demonstrations. However, Lukianoff said UT Austin’s policy is a reasonable one for colleges to have.
He said restrictions on the time, place and manner of speech are acceptable.
“There is nothing reasonable about turning 99 percent of a campus into a censorship zone,” Lukianoff said. “Speech zones are antithetical to the nature of the university. Universities should be the ‘free-speech zone’ of society.”
Fall 2003, reports