Judge: U. of Cincinnati speech code likely unconstitutional

OHIO — The University of Cincinnati likely violated students’ First Amendment rights when it restricted members of the UC chapter of Young Americans for Liberty from circulating a petition across campus, the U.S. District Court for the Southern District of Ohio ruled Tuesday.

Judge Timothy Black issued a preliminary injunction declaring that the university’s free speech policies are a form of unconstitutional prior restraint and are unconstitutionally vague. If the decision is not overturned, UC will be required to amend its policies in line with the court’s order.

UC students filed suit in February, claiming that the school was in the wrong when it confined their ability to collect signatures for a petition to make Ohio a “right-to-work” state.

Under the university’s “use of facilities” policy, the students were required to gain prior permission to gather signatures in a part of campus that is designated as a “Free Speech Area.” The area consists of approximately 10,000 square feet — about 0.1 percent of the school’s West Campus.

If any signature gathering had occurred anywhere else on campus, the students could have been arrested.

The students contended that, after complying with UC’s regulations, they were only able to collect one signature during their day of work, due to low pedestrian traffic in the Free Speech Area.

Central to Tuesday’s decision was the clear distinction Black placed between a designated and a limited public forum.

Citing Pleasant Grove City, Utah v. Summum, a 2009 case decided by the U.S. Supreme Court, Black defined a designated public forum as one where the government makes available a specific piece of property to the public at large. A limited public forum, on the other hand, is one that is restricted for use by certain groups or limited to the discussion of certain topics, he wrote.

While UC had argued that both the Free Speech Area and other parts of campus should be classified as limited public fora, the court agreed with the Chapter of Young Americans, ruling that those areas were designated public fora when applied to student speech.

In response to UC’s contention that it should be able to limit student speech to certain topics, Black wrote that “such a theory is an anathema to the nature of a university, which is ‘peculiarly the marketplace of ideas’ and runs contrary to the Supreme Court’s holding that ‘the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.’”

The court also addressed the inconsistency of the university’s policies for prior approval to use the Free Speech Area.

When the students first filed suit, they alleged in their complaint that web pages and administrators at UC had provided inconsistent time frames for a prior notice requirement before any “demonstrations, picketing and rallies” took place. For example, an email sent to Young Americans for Liberty set the time requirement at five business days, while a separate university website said it was 15.

On April 24, the school announced that it had revised its Expressive Activity Policy to include a three-day prior approval requirement that “supersedes any other written policy or actual practice that is inconsistent with it.”

Despite this, the court held that the advanced notice requirement amounted to a form of unconstitutional prior restraint.

“Such expansive permitting schemes place an objective burden on the exercise of free speech,” Black wrote. “Further, they essentially ban spontaneous speech.”

Additionally, Black ruled that the university’s policy imposing a requirement that all “demonstrations, picketing and rallies” may only take place in the Free Speech Area was unconstitutionally vague, given that the regulations did not provide specific criteria regarding what constitutes these events.

As part of the court’s preliminary injunction requiring the school to revise its student speech policies, UC will, among other remedies, have to eliminate its prior approval mandate for signatures and allow students to solicit signatures of petitions in any designated public forum.

Executive Director of Ohio’s 1851 Center for Constitutional Law Maurice Thompson, who represented the students, applauded the court’s decision.

“I think today’s decision really set in stone that the First Amendment applies on college campuses, especially when it comes to political speech,” he said. “The court did what we asked it do — it reaffirmed that open spaces on campus will almost always be public fora, which was a little bit in doubt in this case.”

Thompson speculated that the reason why the court’s injunction on Tuesday was preliminary — rather than permanent — was that it needs more time to consider the merits of UC’s April 24 policy revision.

He added that the university has “used a labyrinth of permission regulations to regulate your ability to speak and criticize the government” throughout the case.

UC spokeswoman M.B. Reilly said that the preliminary injunction was “a step in the process. That process will move forward, and we’re analyzing our options at this time.”

She declined to comment further.

Like Thompson, Frank LoMonte, executive director of the Student Press Law Center, was also pleased with the court’s decision.

“This was a very resounding validation of First Amendment rights for students to express their opinions on the grounds of a college campus,” he said. “It showed that you can’t ghettoize speech into a remote corner of campus and get away with it.”

However, LoMonte did express concern with some parts of the ruling.

Traditionally, he explained, courts have made no distinction between the concept of a designated and a limited public forum — essentially defining both as areas that the government cannot interfere with once it has determined what individuals and subjects may use it for speech.

Recently, though, some courts have begun to classify a limited public forum under a lower speech standard than a designated public forum, he said.

“It seems like we’re stuck with the fact that the courts are deeming the limited public forum to basically be a meaningless term,” LoMonte said. “From what they’ve said, your rights in a limited public forum are no different than if no forum existed at all.”

LoMonte also believes that one may reasonably interpret Tuesday’s ruling to say that, while designated public fora on college campuses are intended to provide the maximum speech rights to students, they are not meant to provide those same rights to the community at large.

The decision “seems to include a bit of a mash-up between terms that benefits students but perhaps disadvantages speakers from the general public,” he said.

The university can now either await a permanent injunction from the district court or petition the 6th U.S. Circuit Court of Appeals for review.

UC’s policy “reinforces the idea that you have to get the government’s permission days or even weeks in advance to criticize the government,” LoMonte said. “That sends a message of intimidation that will deter all but the most determined people from speaking up, and that’s just wrong.”

By Seth Zweifler, SPLC staff writer

First Amendment, free speech zones, news, Ohio, University of Cincinnati