College students fight back against “free speech zones” that restrict student speech on campus
On the morning of Feb. 15, a group of students involved with the University of Cincinnati’s Young Americans for Liberty set off for a distant part of the school’s West Campus.
Weeks earlier, the students had requested permission to use the school’s free speech zone — an area of campus specifically reserved for “demonstrations, picketing or rallies.”
The YAL members initially wanted to travel campus-wide to collect signatures for a ballot initiative that would make Ohio a right-to-work state, but were told the only place they could do so was in the free speech zone. The zone consists of about 0.1 percent of the entire West Campus, which totals more than 8 million square feet.
Though the students stood in the zone for hours, clipboards in hand, they encountered a total of six passers-by, collecting just one signature along the way.
While the YAL chapter has since filed suit against UC for restricting its First Amendment rights, such free speech zones are commonplace at college campuses across the country.
In recent years, there has been a significant amount of movement in the push to rid campuses of free speech zones, with groups like the Foundation for Individual Rights in Education experiencing success at schools like West Virginia and Texas Tech.
But administrators who have kept free speech zone policies on the books maintain that these areas are in place to protect students’ rights and maintain the basic educational mission of their institution.
First Amendment advocates disagree.
“Speech zones represent something that’s gone seriously wrong with our attitudes about college campuses,” FIRE President Greg Lukianoff said. “Administrators are treating free speech as more of a nuisance than as the lifeblood of a university, and that’s a scary thought.”
A rocky — yet successful — past
Like many other schools, UC’s free speech zone was first created as an administrative response to Vietnam War-era protests.
Over the years, university spokesman Greg Hand said, the free speech area has evolved from what was once merely a free speech “alley” to an area today that is “meant to ensure no limitations are placed on the free exchange of ideas by students.”
In June, however, a federal judge issued a preliminary injunction declaring UC’s free speech policies a form of prior restraint and unconstitutionally vague. That order was made permanent in August.
Chris Morbitzer, a UC student and member of YAL, applauded the decision, saying he hopes it will serve as a catalyst to change other restrictive free speech zone policies across the country.
“What greater risk to campus does a person pose by holding a clipboard to collect signatures than carrying a notebook on the way to class? It’s just a policy that seems to make no sense at all,” Morbitzer said after the preliminary injunction was issued.
Eight years before the decision in UC’s case, a federal judge came down with a similar decision at Texas Tech University. At the time, the university had designated a single 20-foot-diameter gazebo as the only place in which a campus of nearly 30,000 students could speak freely.
In his 2004 decision, U.S. District Judge Sam Cummings wrote that the practice of restricting speech to the gazebo was unconstitutional, and required the school to amend its policies to allow speech rights in all common areas across campus.
Kevin Theriot, an Alliance Defending Freedom attorney who worked with the students to overturn the gazebo policy, said one of most limiting aspects of free speech zones like the one overturned at Texas Tech is that they effectively eliminate the possibility of spontaneous speech.
Even before the Texas Tech policy was abolished, students at West Virginia University successfully lobbied their school administration to revise a policy that limited open expression to two small areas of campus.
Michael Bomford, a then-graduate student at WVU who worked with the administration on the speech zone issue, said that, over time, the students were able to make their case that students at a publicly funded university should be able to speak freely throughout all open areas of campus.
“Coming to the U.S. from Canada, I was just shocked to learn of such a policy — that free speech would be quarantined to such a small part of the university,” he said.
Other free speech zone reversals over the years have been common, with high-profile cases coming out of schools like Appalachian State, Tufts and Valdosta State.
“When we’ve seen people challenge these free speech restrictions, these policies have not only gotten laughed out of court, they’ve gotten laughed out of the court of public opinion,” Lukianoff said. “The idea that these schools tried to put students into tiny, far-off corners shows that this isn’t anything more than trying to keep universities quiet when really they’re supposed to be chaotic homes for ideas.”
On the rise
Despite these objections, the past few years have come with an increase in schools that have free speech zone policies on the books, said Samantha Harris, FIRE’s director of speech code research.
Harris speculated that this recent uptick is a direct result of schools reacting to preachers from local, off-campus churches making spontaneous appearances on college campuses.
“A lot of these restrictions are driven by a more generalized fear of disruption rather than a specific concern,” Harris said. “Limitations on free speech should be the exception and not the rule, but what a lot of these policies do is the exact opposite.”
She explained that the accepted legal standard for regulating student speech is placing restrictions on the “time, place and manner” of the speech in a narrowly tailored way that achieves the university’s legitimate interest in preventing disturbances of class-related activities.
Some students believe the speech codes at their universities overstep these bounds.
Since he graduated from Indiana University this spring, Nico Perrino has been asking his former administration to consider revising its policies.
In one handbook, IU says organizations must register to use the school’s Dunn Meadow 24 hours in advance of speech-related activities. A different policy states that the area is open to everybody for spontaneous speech all the time. And yet another instructs those who wish to speak openly to register to use the space at least 10 days in advance.
While Perrino said the administration never shut down student speech in an objectionable way while he was a student, he said the inconsistency between the policies had a “chilling effect” on student speech — essentially scaring students off before they start expressing themselves.
Similarly, Jerry Hosey, who graduated from Florida State University in the spring, wrote an opinion piece in The Seminole Sentinel newspaper in which he criticized his school for maintaining a free speech zone policy.
Under FSU’s Free Speech Zones and Open Platform policy, “the green area on the east side of Moore Auditorium, the central portion of Landis Green and the football stadium outside gate D in the grassy area are designated ‘open platforms.’ Any student or other individual who desires to be heard publicly on any issue of concern may use these areas subject to the provisions of this regulation at any time when previous scheduling does not preclude such use but only from 8 a.m. to 10 p.m. local time.”
Though Hosey was never inconvenienced by the school’s policy, he said it “seemed like you needed to have a permit to do anything. I’m not sure how you can tell people where they can say what they want to say.”
However, Arthur Wiedinger, who works in FSU’s Office of General Counsel, distinguished the school’s policy from a traditional free speech zone.
“The big difference is that we’re by no means saying the First Amendment applies in a single spot,” he said. “We’re just saying that we’ve set aside areas where there’s going to be unrestricted time, place and manner access. Our goal is to make access to speech as easy as possible.”
While there are many opponents of free speech zones, some see a place for them, especially given the increase in protesters on college campuses over the past year stemming from the Occupy movement.
Divya Kumar, a rising junior at the University of South Florida and the editor-in-chief of the Oracle student newspaper, wrote a column last year in which she urged USF to consider implementing a free speech zone.
Kumar argued that students on campus should have as much of a right to avoid hearing offensive speech than individuals should have to espouse it — especially when the speaker is unaffiliated with the university.
“At one level, it’s important that everyone has free speech everywhere,” she said. “At another level, the delineation between free speech and hate speech is very murky. I think that having free speech everywhere on a college campus is going to lend itself to having students subjected to what borders on hate speech.”
Other campuses across the country feature slightly different iterations of free speech-designated areas.
North Carolina State University, for instance, is home to a Free Expression Tunnel, an on-campus site of sanctioned graffiti in which any member of the public is able to paint messages.
Though the tunnel serves as a supplement — and not a substitute — to a campus-wide free speech policy, it has been at the center of several national controversies in recent years.
For example, in 2008, authorities investigated threatening graffiti in the tunnel directed at President-elect Barack Obama. In 2011, staff members of the Brick student publication found themselves in hot water with their administration after a racial slur surfaced in the background of a photo taken inside the Free Expression Tunnel.
While Bradley Wilson, former coordinator for student media advising at N.C. State, applauded the university for maintaining the tunnel over the years, he believes it has wrongly chosen to paint over controversial graffiti rather than start a campus-wide conversation about it.
“By doing this, they’re not dealing with the issues,” he said. “The highlights of the tunnel seem to be its lowlights.”
Although most free speech zone policies refer explicitly to campus protests or petition-gathering efforts, they can sometimes run the risk of impacting student media.
“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 or because of irregular enforcement of the policy by campus officials, smaller, independent student media … are often not so lucky,” Student Press Law Center attorney Mike Hiestand wrote in a 2005 guide. “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.”
Lukianoff added that, in order to run a successful anti-free speech zone campaign, one of the most important components is having students on the ground dedicated to the cause.
More than anything, he emphasized that administrators need to start embracing open expression as something that can create a more dynamic, enriching educational environment.
“The thing that continues to amaze and sadden me is the popularity of this idea — that universities can somehow get away with quarantining free speech into a tiny corner of campus and that people can be duped into believing that’s a good thing,” Lukianoff said. “That’s a mindset that has to change.”
By Seth Zweifler, SPLC staff writer.
Fall 2012, reports