Updated: Dec 20 2014
At the beginning of the 2003-04 school year, Southwest Missouri State University hosted its New Student Festival. The annual event welcomes incoming
students and provides an opportunity for campus student organizations to introduce themselves to potential new members and distribute flyers and other material. The event, however, was open only to recognized student groups and when Ryan Cooper, the student president of the SMS Young Americans for Freedom, a conservative student group not formally recognized by the university, attempted to distribute the first issue of their newspaper, the Bear Review, at the Festival, he said that a school official ordered him to leave the campus building where the event was being held. Cooper claims the official first told him that he could only distribute his material from an off-campus street corner two blocks away from the Festival. After pointing out to the official that there were no students at that location to whom his group could actually hand his newspaper, he says the administrator agreed to allow the group to distribute their publication from a table inside SMSU’s “free speech zone,” an area to which campus debates, rallies and protests were generally restricted. In truth, the free speech zone, at least on that late summer day, was an area where virtually no exchange of ideas, opinion or information — free speech — actually occurred.
Welcome to the American college campus of the 21st Century. With a flair for Orwellian Newspeak, campus administrators at many schools, beginning in the 1980’s and picking up steam in later years, created so-called Free Speech Zones. Lauded by school officials as places where students (and sometimes, but often not, non-students) can speak their minds, hold rallies and demonstrations, distribute literature and engage in unrestricted, robust, open discourse, these censorship-free zones sound like free speech heaven. The problem: students who step outside a marked 60-foot by 60-foot area — or as was the case until recently at Texas Tech University, a 20-foot wide gazebo that could hold about 40 people — to share those
same views with students in other parts of the campus risk being silenced or punished.
While courts have long recognized that schools have the authority to limit speech activities on their campuses so that classes and other normal school activities are not seriously disrupted, critics charge the trend toward campus speech zones has gone way too far.
“What they have done is turn the First Amendment on its head,” Harvey Silverglate, a former Harvard law professor who co-founded the Foundation for Individual Rights in Education (FIRE) recently told CNN.
Instead of designating places where students can speak, schools should be designating only places where they cannot, Silverglate says.
STUDENT MEDIA AND FREE SPEECH ZONES
Student media — whose primary business is expression — obviously have much at stake in the speech zone wars. While the official, mainstream student media generally seems to escape the grasp of such policies, either because of language in the policy (such as a policy that limits in-person distribution of publications but not their distribution from unmanned newsracks) or because of irregular enforcement of the policy by campus officials, smaller, independent student media — such as the Bear Review at Southwestern Missouri State, are often not so lucky. Speech zone policies often lump “distribution of printed material” into the category of expressive activities that should take place only in a school’s designated free speech zone. In such cases, the distribution of newspapers, leaflets or fliers in other parts of the campus is either prohibited or tightly regulated.
The policy at Florida State University is typical:
“The passing or handing out of literature, fliers, posters, advertisements, or any other material is limited to the following areas Oglesby Union, FSU Bookstore sidewalk area, Dirac and Strozier library sidewalk areas and the walkway between the Rovetta and Bellamy buildings.”1
In the last few years, such campus speech policies have come under increasing legal attack. The Foundation for Individual Rights in Education has led the charge to challenge free speech zones as unconstitutional under the First Amendment.2 So far, FIRE and others have met with good success, sometimes in a court of law, but more often in the court of public opinion — where campus speech zones have often not set well with the public — or in simply convincing schools that such policies are on shaky legal ground to begin with. For example, after Ryan Cooper filed a lawsuit against Southwest Missouri State University, the school eliminated its free speech area and opened the entire campus to free speech activities.3
Similar results have been achieved — short of an actual court ruling — at a number of schools. Among the places where campus free speech policies have been significantly modified or thrown out in the last few years: the University of
Texas at El Paso, Citrus College in California, the University of Houston, the University of Maryland at College Park, the University of Wisconsin-Whitewater, New Mexico State University, the University of Texas at Austin, West Virginia University and Western Illinois University.4 At Shippensburg University in Pennsylvania, the school eliminated its speech policies, which restricted speech that was “inflammatory, demeaning or harmful toward others” and limited student demonstrations and speeches to two speech zones on campus, after a judge, in a preliminary ruling in September 2003, said that the school’s policies were “likely unconstitutional.”5
Cases involving student speech generally — and campus speech zones specifically — have focused on an attempt to balance two competing interests: student free expression rights, which recognize the traditional notion of a campus as a robust, open marketplace of ideas and the need of school officials to ensure that students can learn — and faculty can teach — in a safe, productive environment. For courts, the balance is not always an easy one.
For example, in Widmar v. Vincent, a 1981 case frequently cited in campus speech cases by both sides, the U.S. Supreme Court noted “our cases leave no doubt that the First Amendment rights of speech and association extend to the campuses of state universities.”6 However, just a couple of pages later, in the same decision, the Court “recognize[d] a university’s right to exclude even First Amendment activities that violate reasonable campus rules or substantially interfere with the opportunity of other students to obtain an education.”7
Most speech zone proponents and critics recognize both of these sometimes conflicting interests. Both groups accept that the law requires a balance. But they approach the balance from different starting points.
School officials and other speech zone proponents argue that a public college campus is, as a rule, not generally open to free speech activities. While free speech is a part of the university experience, they argue that a university’s primary mission is education. And in order to fulfill that mission the administration must retain the authority to regulate how all campus spaces and facilities are used. They accept, however, that the First Amendment requires them to open defined and finite pockets of the campus — which they designate as free speech zones — for such activity.
Critics, on the other hand, argue that speech zones are based on a faulty presumption. A public college campus is, they argue, the quintessential marketplace of ideas. They point to a long line of court decisions recognizing the importance of free inquiry and debate on American college and university campuses.8 While there may be specific areas where speech activities can be limited, such as inside classrooms or administrative offices, the presumption, they contend, is that all other areas of the campus must be open to lawful speech activities and no special permission is required.
While the goal of balancing free speech against campus safety and order is fairly easily understood, applying it to the facts of a specific situation can get pretty messy.
In weighing the right of the government to regulate expressive activity that occurs on government property or that uses government resources, courts have turned to what is commonly known as “forum analysis.”9 The idea is that the government’s authority to regulate such speech varies according to the type of forum in which the speech takes place. Some places, it recognizes, are more appropriate for speech activities than others. For example, the government’s interest in regulating speech that takes place in a town’s public square, where speakers have traditionally been allowed to host gatherings and spread their message, is much less than on a tightly guarded military base or in the private office of a government employee where the government can demonstrate a
reasonable need to restrict free speech activities.
Thus, courts analyzing the constitutionality of a public college or university’s campus speech zone first look to determine whether the campus is a traditional public forum, a non-public forum, or a “limited” or “designated” public forum.10 In traditional public forums, such as streets, sidewalks and parks, the government must accommodate virtually all speakers. Non-public forums have not traditionally been opened to the public and speakers in such forums receive the least First Amendment protection. Limited public forums, meanwhile, have not historically been open to the general public but are considered to occupy a middle ground because the government has opened the forum for a specific expressive purpose or for free speech use by a specific group of people (such as students). Speakers using such forums in their designated manner are entitled to the same strong First Amendment protections as speakers in a traditional public forum.
An opinion handed down this fall by a federal district court judge in Texas provides the most detailed discussion yet of forum analysis as it relates to campus speech zones.
The case, Roberts v. Hargan,11 arose after Jason Roberts, a law student at Texas Tech sought to speak and distribute literature expressing his views on the perils of homosexuality to other students on campus. By university policy, the school’s designated “free speech area” was in a gazebo near the student union, but Roberts wanted to speak elsewhere on campus. University officials initially rejected his request and encouraged him to use the free speech area. He was later granted permission to speak close to, though not exactly in, the spot he requested. Instead of giving his speech, however, Roberts sued the school over its policy.
In the wake of the lawsuit, Texas Tech adopted less restrictive policies, but Roberts challenged those rules as well. The new policies designated “forum areas” where unrestricted student expression was allowed on a first-come, first-served basis. Those interested in conducting “free expression activities” outside the forum areas had to request permission two days in advance. The policy also stated that university officials could restrict the campus distribution of printed materials, except for those passed out in the forum areas.
In striking down Texas Tech’s policy, the court first determined that campus areas such as campus parks, streets, sidewalks and “other similar common areas” (a term the court did not define) are “[traditional] public forums, at least for the University’s students.”12 Texas Tech could not limit speech activities in those areas, the court said, without showing that doing so would serve a significant purpose. It would also have to show that its rules were content-neutral. Finally, any policy that prohibited speech in such “public forum” areas had to be drawn narrowly and leave plenty of other opportunities for free speech. This is traditionally a very difficult test for government officials to meet.
The court stated that: “[t]he University has failed to convince this Court that burdening all expressive activities in public forums with its prior permission requirement is necessary to serve its significant interests, even though the University may indeed have a significant interest in controlling some expressive activities.”
The court found the restrictions on the distribution of printed materials in public forum areas unconstitutional for the same reasons. Speech restrictions for areas of campus not considered traditional public forums, the court concluded, were subject to a lesser standard. In those areas, school officials could regulate speech where rules were not based on the content of the speech and the regulations were merely reasonable.
STUDENTS V. NON-STUDENTS
While court decisions such as Roberts provide students and other members of the campus community wanting to challenge free speech zones with
valuable legal ammunition, courts appear more willing to endorse campus speech zones as they apply to campus outsiders.
Courts frequently point to the Supreme Court’s decision in Widmar v. Vincent to justify such restrictions.13 While the case did not involve campus speech zones, its reasoning and language have formed the
basis for almost every other case involving such zones. In Widmar, the University of Missouri at Kansas City barred a student religious group from
using a campus building for its meetings citing a school regulation prohibiting the use of university buildings for religious worship or teaching. The Supreme Court viewed this as content-based discrimination against religious speech and voided the regulation. However, in a much-cited footnote, the Court indicated that the decision might have been different had the case involved non-students:
“A university’s mission is education, and decisions of this Court have never denied a university’s authority to impose reasonable regulations compatible with that mission upon the use of its campus and facilities. We have not held, for example, that a campus must make all of its facilities equally available to students and nonstudents alike, or that a university must grant free access to all of its grounds or buildings.”14
In fact, three cases, all decided in 2004, have recognized a distinction between student and non-student campus speakers in upholding restrictions on the latter group. In 2003, the University of Maryland at College Park revised its speech zone policy in response to a lawsuit filed by the American Civil Liberties Union. Previously, all campus demonstrations were restricted to speech zones and students were required to apply for permits to engage in free speech activities elsewhere. Students wanting to hand out written material were also limited to one campus sidewalk. The new policy eliminated campus free speech zones and now allows students to hold demonstrations or protests and pass out published material in all areas of the campus.
However, the school refused to back down from the restrictions as they applied to groups or individuals who were not students at the University of Maryland. In June 2004, a federal district court upheld their policy.15 Unlike in the Texas Tech decision, the Maryland court concluded that the university as a whole was a “limited” rather than a “traditional” public forum. The court further recognized two standards for such limited public forums. An “internal standard” applied, the court said, when the government excludes a speaker for whom the forum was generally made available (in this case, University of Maryland students). An “external standard” applies if the government excludes a person or group for
whom the forum was not generally made available. In limiting “campus outsiders”
to designated speech areas, the court said the external standard required only that the university’s restrictions be “viewpoint neutral and reasonable in light of the objective purposes served by the forum.” The court found that the University of Maryland’s restrictions on non-students met this test. The ACLU has appealed the decision.
In May 2004, a federal district court rejected a First Amendment claim brought against the University of Texas at Arlington by a non-student, Christian evangelist who was prohibited by campus police from preaching on campus without permission from university administrators.16 When the
evangelist sought such permission, he was turned down, which led to his lawsuit.
The court upheld the university’s decision and found that because the University of Texas system had not opened up university property for use by those outside of the university community, the university as a whole was a limited public forum. The court found the restriction against outsider speech was reasonable to further the university’s mission and did not discriminate against the evangelist’s Christian viewpoint as it was uniformly applied to all outside speakers regardless of their message. The case is ongoing.
Yet another Texas case, this one at Sam Houston State University, also upheld restrictions against outsider campus speech but in the context of a criminal, rather than civil, case.17 In this case a controversial street preacher and anti-abortion activist who frequented colleges and universities across the country was speaking to a group of students in the mall area of the campus when a dean at SHSU asked him to move to the campus’ free speech area. After refusing repeated requests for him to move, the defendant was arrested for trespass. In its April 2004 decision, the court upheld the conviction, concluding that, “[n]othing in the Constitution requires a government entity to freely grant access to all who wish to exercise their right to free speech on every type of government property without regard to the nature of the property or to the disruption that may be caused by the speaker’s activities.” The court concluded that the
university was either a limited public forum or a traditional public forum for student speech. Because the court had no evidence the defendant was asked to move because of the content of his message, it found the enforcement of the trespass statute constitutional.
Assuming the outcomes do not change on appeal, the courts’ findings in all of these cases that the campuses as a whole were either “limited” (University of Maryland and University of Texas at Arlington) or “traditional” (Texas Tech and perhaps Sam Houston State) public forums bodes well for student media and other students wanting to challenge speech zones and engage in mostly unregulated on-campus expressive activity. Such rulings reject the claims of many school officials and the presumption implicit in speech zones that a public university campus is generally a nonpublic forum where speech can be tightly controlled and limited to specific times and places.
The picture for non-student speakers is, obviously, not so rosy. In many cases, off-campus speakers or publishers may be able to work around university restrictions by finding students to sponsor their campus visit or assist in the on-campus distribution of their materials. Also, even where a university’s rules prohibit or limit outside speakers, the school must still demonstrate a reasonable justification for its restrictions. For example, some courts have rejected government attempts to ban the distribution of material because of potential litter or other aesthetic concerns.18 Other courts have rejected attempts to ban publications because they contained advertising.19 Such justifications fall particularly flat where other “outside” groups (for example, a local commercial newspaper or USA Today, etc.) have been allowed campus access. Such specious reasons, the courts determined, were outweighed by concerns for a speaker’s free speech rights. Similarly, while a rule banning the in-person distribution of materials without prior permission may further a school’s goal of campus safety, a ban on the placement of materials in an unmanned campus distribution box might not.20 Finally, any restriction on outsiders must be viewpoint-neutral. Allowing speakers on one side of an issue to come on campus to speak or distribute material while denying permission to groups on the opposing side would clearly violate the First Amendment.
Despite their name, campus “free speech zones,” at their best, tolerate speech but have little to do with actually encouraging lively and spirited expressive activities on campus. At their worst, by effectively fencing in campus speech — specifically including the distribution of newspapers and other printed material in some cases — and restricting such activity to a closed and limited physical area of campus, they represent a serious threat to the traditional model of a university operating as a “quintessential marketplace of ideas.” In such cases, the market may still exist, but it is only open a few hours a day in an inconvenient part of town.
Fortunately, recent victories — both in and out of court — suggest that the trend toward free speech zones may be nearing an end. While non-students may still sometimes have a tough time spreading their messages on campus, students of public colleges and universities have increasingly seen free speech zone policies relaxed or the zones themselves eliminated altogether. As students, courts and finally even some schools have begun to recognize, free speech on campus — if it is truly free — cannot be limited to a gazebo.
1 University Policy for Posting, Promotions, Advertising, Chalking and the Distribution of Materials on FSU Campuses, Sec. 8(b)(promulgated May 10, 2002).
2 In April 2004, FIRE announced the launch of its Speech Codes Litigation Project that would fight campus speech codes and speech zones by filing suit in most of the federal appellate districts in the country. For more information see the FIRE’s Web site at: www.thefire.org (last viewed Dec. 2, 2004).
3 Colleges adopt new policies on free speech, SPLC Report (Spring 2004), p. 28.
4 See Fighting the zoning of free speech, SPLC Report (Fall 2003), p. 34. More information about many of these cases is available on the FIRE’s Web site.
5 Bair v. Shippensburg Univ., 280 F.Supp. 2d 357, 373 (M.D. Pa. 2003). See also Pa. college changes speech policies in settlement of First Amendment suit, SPLC NewsFlash (Feb. 26, 2004)( http://www.splc.org/newsflash.asp?id=758&year=2004)(last viewed Dec. 2, 2004).
6 Id. at 268-269.
7 Widmar v. Vincent, 454 U.S. 263, 277 (1981).
8 See e.g., Healy v. James, 408 U.S. 169, 180 (1972)(“the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools”); Rosenberger v. Rectors and Visitors of the Univ. of Virginia, 515 U.S. 819, 835-36 (1995)(“For the University, by regulation, to cast disapproval on particular viewpoints of its students risks the suppression of free speech and creative inquiry in one of the vital centers for the Nation’s intellectual life, its college and university campuses.”)
9 Perry Educ. Ass’n v. Perry Local Educator’s Ass’n, 460 U.S. 37 (1983).
10 While some courts debate whether there is a distinction between a “limited” and a “designated” public forum, we use the terms interchangeably here. See note 12, below.
11 Roberts v. Haragan, 2004 WL 2203130 (N.D. Tex. Sept. 30, 2004).
12 Public forum analysis has always been somewhat complicated, and often misapplied, even by courts. For instance, by most courts’ definitions, a public forum designated for use by a particular group of individuals — such as students at Texas Tech University — would be categorized as a “limited” or “designated” public forum and not a “traditional” public forum, as this court has described it. Traditional public forums are open to speech activities by the general public. This court further took it upon itself to recognize four, rather than the traditional three, categories of public fora by distinguishing “designated” public forums from “limited” public forums and finding the latter subject to the same, lower free speech standard applicable to nonpublic forums. The court’s
fairly novel and rather confusing approach to forum analysis is almost certain to be questioned by future courts in other cases, but because it does not alter the practical effect of the case, we do not address it further here. Id. at 4-5.
13 Widmar v. Vincent, 454 U.S. 263 (1981).
14 Id. at 268, n. 5.
15 ACLU Student Chapter – University of Maryland, College Park v. Mote, 321 F. Supp. 2d 670 (D. Md. 2004).
16 Bourgault v. Yudof, 316 F. Supp.2d 411 (N.D. Tex. 2004).
17 Spignola v. State, 135 S.W.3d 330 (Tex. Ct. App. 2004).
18 See City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993); Hays County Guardian v. Supple, 969 F. 2d 111 (5th Cir. 1992), cert. denied, 113 S. Ct. 1067 (1993); Miller v. City of Laramie, 880 P.2d 594 (Wyo. 1994).
19 Hays County, 969 F. 2d at 118-119 (rejecting university policy prohibiting non-student paper
containing advertising from being distributed on campus).
20 See Partnership Press, Inc. v. Madden, Civ. No. 96-70715 (S.D. Iowa Dec. 4, 1997), discussed
at, Iowa State wins one, loses one against Ames Tribune, SPLC NewsFlash (Feb. 19, 1998)(http://www.splc.org/newsflash.asp?id=57)(last viewed Dec. 2, 2004).