4. Zoning Out Free Speech

RECOMMENDATIONS:

Although it is appropriate for colleges to recognize the differences in freedom of speech in different areas of the university (outdoor public space vs. meeting rooms vs. classrooms vs. personal offices vs. dorm rooms), colleges must be careful not to limit freedom of speech by requiring protests to be held in certain outdoor zones. The “time, place, and manner” exemption to free speech in Constitutional law does not allow for arbitrary outdoor zones or severe limits on free speech outside these zones. Time, place, and manner restrictions must have a clear rational basis (such as preventing protesters from taking over classrooms with bullhorns and interfering substantially with the learning process), and not merely exist for the convenience of administrators. Censorship zones are unnecessary and destructive to any college’s commitment to free speech.

Introduction:

In March 2003, the Foundation for Individual Rights in Education (FIRE) launched a crusade against speech codes, beginning with vague harassment policies at Shippensburg University. Thor L. Halvorssen, executive director of FIRE, stated: "We are going to bring them all down. We are hereby declaring war on speech codes at public universities." Greg Luckianoff, director of legal and public advocacy for FIRE, has claimed: "Students have a tiny fraction of the free speech rights enjoyed by the larger society.” (Oregon Daily Emerald, May 30, 2003) In reality, there is more freedom of speech in American colleges than in any other institution. But it is precisely because freedom of speech is so critical to higher education that any limits on free expression must be carefully scrutinized and criticized. Every college has a policy that could be used to unconstitutionally infringe upon freedom of speech. It is impossible to create a policy that prohibits all possible legitimate cases of harassment while simultaneously defending all protected free speech. The key for colleges is not to eliminate speech codes, but to improve speech codes and the campus climate by establishing strong protections for freedom of expression, due process, and sound enforcement.

(a) Chico State (California): In addition to limiting free speech to certain zones, Chico State limits expression within these zones. In April 2003, an anti-abortion group was ordered to leave a free speech zone because its posters of aborted fetuses offended people at an event sponsored by the Women’s Center.

(ErinOConnor.org, May 1, 2003 TrackBack, censors expression whole thing)

(b) Citrus Community College (California): The campus speech zone policy limits protests to 8am-6pm within three specified zones, and bans amplification even within the zones. Protesters must notify the College Security Office about the content of the message. When student Chris Stevens sought to hold a “Pro-America” rally and also to protest Gov. Gray Davis’ education budget, he was warned that he would be arrested and expelled if he went outside the free speech zones. Only registered student groups are allowed to hold events outside the zones.

Two pro-life activists were arrested on Nov. 13, 2002 for stepping outside a free speech area and refusing to return to the designated zone. Citrus College president Louis Zellers argues that the zones “protect not only the people who want to speak or demonstrate, but also our students who are intimidated by it.”

Citrus College also prohibits “indecent” and “offensive…expression or language.” All posters, fliers, and publications require prior approval from the administration, and banners must be approved by Student Affairs staff using student artists hired by their office. In June 2003, the Board of Trustees rescinded the speech zones policy.

(Clarion, Nov. 20 2002; FIRE, May 20, 2003; USA Today, May 19, 2003; San Gabriel Valley Tribune)

(c) Iowa State University: Although a new policy enacted in 2001 allows protest outside two official "free-speech zones," some students have urged overturning restrictions on the size of groups and proximity to buildings. The Campus Greens were asked to move away from a building during a September 2002 protest against EPA Director Christine Todd Whitman.

(AP, Nov. 21, 2002)

(d) Irvine Community College: In April, 2002, a federal judge ruled that the South County Community College District in California violated student free speech in a 2000 policy requiring students at Saddleback and Irvine community colleges to reserve space for outdoor events, and get permission from the college president to distribute written material on campus. U.S. District Judge Audrey Collins ruled, “because the provisions provide the college presidents with absolutely no standards to guide their decisions, they are unconstitutional.”(SPLC Report, Winter 2002-2003)

(e) San Diego State University: legal demonstrations are allowed in only one zone, the "Free Speech Steps" in front of the student union from noon to 1 pm, and demonstrations must be approved two days in advance (one month if amplification is used). Rules also restrict signs and banners to two designated walls and sizes of 18”x20”.

(f) University of Houston: After administrators approved a large anti-abortion exhibit on the main campus in March 2002, the Pro-Life Cougars student group tried to bring it back in June 2002. When university officials refused, citing its disruptiveness, the students sued, and a federal district judge on June 24, 2002 declared the speech policy, which limits free speech to four zones, unconstitutionally vague. The next day, the University of Houston president unveiled a new speech policy that opponents claimed is even more restrictive because students must register 10 days in advance for protests. University of Houston officials allowed a March 13, 2003 gay rights rally outside the university’s free speech zones because it was a university sponsored event, not one sponsored by a student group.

(National Law Journal, October 1, 2002; AP, Oct. 3, 2002; Houston Chronicle, March 17, 2003)

(g) University of Maryland at College Park: On March 6, 2003, Daniel Sinclair and Rebecca Sheppard, two students with the ACLU at the University of Maryland at College Park, sued over a campus policy that limits public speaking to one building and permits distribution of literature on only one sidewalk. According to their lawsuit, “Even in those limited areas where such activity is ever permitted, the university severely restricts the times and days during which it is allowed.” University spokesperson George Cathcart declared, “People also have the right to go to class and not be harassed, so it’s always a balance of those things, but the university does make a tremendous effort to make sure that people have an opportunity to express their views, no matter how unpopular they may be.”

(ACLU, March 6, 2003; SPLC, March 12, 2003; rules are available online at http://www.inform.umd.edu/PRES/policies/vi401a.html. The ACLU's legal complaint is online at http://www.aclu.org/FreeSpeech/FreeSpeech.cfm?ID=12036&c=87)

(h) University of South Florida: In Jan. 2003, students planned a march through campus to the building where the hearing about Sami Al-Arian was scheduled to be held. However, the University decided to move the hearing off-campus, to the Embassy Suites, where protesters on private land were kept more than 100 yards away in a “free speech zone.”

(USF Oracle, Jan. 27, 2003)

(i) University of Texas at El-Paso: The ACLU filed a lawsuit March 7, 2003 accusing university officials of denying students freedom of speech by refusing requests for permits to speak at the two free speech “zones” on campus. According to UTEP student Ruben Reyes, the Green Party nominee for Texas Comptroller in 2002, "Dean Schafer would demand to know the content of the presentations of particular speakers, hence making the content of a speaker's speech a criterion for whether that individual would be allowed to speak.” Reyes also accused UTEP of charging a $60 electricity fee for organizations holding speeches, even when they used no electricity, and requiring detailed forms listing location, purpose, and who will be involved in events, along with signatures from campus departments to approve events. After Reyes’ requests for events were repeatedly denied, Reyes spoke extemporaneously on campus about free speech until university officials threatened to expel him for speaking outside the zones. (Daily Texan, March 6, 2003; SPLC, March 12, 2003)

CHALKING RULES

COMMENT: Chalking is an important aspect of free speech on a college campus, and part of the unique climate of free expression. Neatness should not supercede free speech. As Peg Vitek, coordinator of the Student Conduct Office at Oklahoma State University, noted in defending the open chalking policy there: "We can be offended by something, but that doesn't mean we can regulate the speech. If you're going to limit bad speech, you have to limit good speech, too."(Daily O'Collegian, March 24, 2003)

(j) Baylor University: members of Baylor Freedom, an unofficial organization for gay, lesbian, bisexual, and transgender students, have chalked sidewalks, but they are quickly removed by the university. Only official student groups can chalk on sidewalks, with permission. Because Baylor refuses to recognize any gay student groups, they are effectively banned from chalking.

(Chronicle of Higher Education, April 5, 2002; Daily Texas, Sept. 26, 2002)

(k) Minnesota State University at Moorhead: a new policy requires student organizations to get a permit before chalking in specific approved zones, in order to discourage hate speech. “Counterchalking” is prohibited.

(Daily O'Collegian, March 24, 2003)

(l) Pennsylvania State University: a 1999 Administrative Policy forbids any chalking on campus because administrators consider it a form of graffiti.

(Daily Collegian, Nov. 18, 2002)

(m) University of California at Berkeley: in 2003, administrators began enforcing a little-known policy that prohibits chalking on campus. Student Affairs Officer Virginia Nelson declared, "We're a free speech institution. You can have free speech, but we monitor the time, place and manner." Chalking is banned all over campus.

(Daily Californian, Feb. 4, 2003)

(n) University of Hawaii at Honolulu: administrators are seeking to ban the use of chalking at the Campus Center, one of two free speech zones on campus, because of the cost of daily powerwashing.

(Ka Leo O Hawaii, May 6, 2003)

(o) University of Texas-Austin: a student was fined $250 for chalking a sidewalk the day war began with Iraq, and could face further disciplinary action through Student Judicial Services.

(Daily Texas, May 6, 2003)

(p) Wesleyan University: In May 2003, President Douglas Bennet banned all chalkings on campus after some chalking included vulgar references to specific faculty. Bennet declared, "I have decided to ban chalking because it fails to promote civil discourse, which is essential if we are to help all voices to be heard on this campus."

(Hartford Courant, May 15, 2003; New York Times, May 14, 2003; May 25, 2003)

RESTRICTIONS ON STUDENT ORGANIZATIONS

(q) University of California at Berkeley: On April 9, 2002, more than 500 pro-Palestinian protesters occupied Wheeler Hall, calling for the university to divest from companies that do business with Israel, and 79 people were arrested. Prosecutors made a factual finding of innocence and a court order sealing arrest records, but Berkeley officials pursued disciplinary action for more than 10 months, withholding degrees from six students. In September 2002, hearings were closed to the public because a student on the disciplinary committee wanted to remain anonymous. The University eventually released the degrees, and in Feb. 2003 settled the cases, with the protesters claiming victory.

Administrators have proposed revisions to the student code of conduct to make it easier to punish student groups, to avoid the lengthy process of hearings for individuals. Groups would be banned from tabling and other penalties.

(Daily Californian, Jan. 23, 2003; Feb. 14, 2003; Feb. 24, 2003; Feb. 25, 2003; Jewish Bulletin of Northern California, Feb. 27, 2003)

(r) University of Miami: The student-run Committee on Student Organizations repeatedly refused to recognize the Advocates for Conservative Thought [ACT] on the grounds that its purposes “overlap” with the College Republicans on campus. When FIRE publicly denounced the decision, university president Donna Shalala ordered a change in policy: "I have asked Committee on Student Organizations to implement a new policy that is consistent with the principles of free speech, academic freedom and competition," because “the subject matter should not be subject to review. ... You cannot make a judgment on substance."

(FIRE, May 2, 2003; Miami Herald, May 2, 2003; Washington Times, May 3, 2003)

COMMENT: Groups on other campuses have faced similar problems, such as the Fordham University’s repeated rejection of Progressive Students for Justice on the grounds that it duplicated the work of the student government. Colleges should drop all requirements that prohibit duplication of existing student groups. While some regulation is feasible to encourage groups to work together or to prevent confusion based on similar names or functions, ultimately colleges should allow students to form the organizations they desire without examining the subject matter. The cost and inconvenience of additional student organizations is minimal compared to the danger of wrongly prohibiting student groups from campus. However, administrative intervention to overrule student decisions also presents a potential danger to academic freedom. Colleges should create mechanisms for appeal and review to academic freedom committees rather than allowing administrators to overrule these decisions.

(s) University of Southern California: new rules prohibit student groups from using chalk on campus sidewalks, putting inserts in official university publications, placing signs on stakes, and putting banners on Topping Student Center. Groups will be fined $1 for each incorrectly posted flier.

(Daily Trojan, March 7, 2003)

(t) Washington University (Missouri): The School of Law’s Student Bar Association reversed itself in October 2002 and voted 27-6 to recognize Law Students Pro-Life. The organization had previously been told that it needed to oppose the death penalty in order to be consistently pro-life.

(FIRE, Oct. 15, 2002; Chronicle of Higher Education, Oct. 25, 2002)

FREE SPEECH VICTORIES

(u) Illinois State University: the Academic Senate voted overwhelmingly in Oct. 2002 to oppose a proposed “speech zone” code that would limit protests and distribution of literature to a handful of areas on campus. However, there is still a formal ban on all amplification on campus, although it is routinely violated.

(SPLC, Oct. 29, 2002)

(v) Iowa State University: A new policy will allow students to protest outside of the two official “free speech zones” on campus, although restrictions are still placed on the size of groups and their proximity to buildings. In September 2002, the Campus Greens had been asked to move away from a building where they wanted to protest against EPA director Christine Todd Whitman.(AP, Nov. 21, 2002)

(w) University of California at Berkeley: administrators replaced a ban on "fighting words" with a more narrow policy prohibiting harassing speech toward a specific person.

(AP, April 29, 2003)

(x) University of Illinois: On Jan. 27, 2003, three activists opposed to the school’s mascot, Chief Illiniwek, filed a $2.5 million federal civil rights lawsuit against University police and Assembly Hall security staff. They were ordered to leave a Jan. 27, 2002 women’s basketball game for yelling that the Chief was a racist symbol. Cook was arrested and convicted of resisting arrest for refusing to leave. Chancellor Nancy Cantor has written that the removal of the activists “did not comport with the University’s policy on free speech.”

(Daily Illini, March 20, 2003)

(y) University of Illinois: on Feb. 14, 2003, administrators appealed to the 7^th Circuit Court of Appeals after a lower court in 2001 ordered the university not to enforce a ban on students and faculty discussing Chief Illiniwek with prospective student athletes. Anti-Chief activists had sued over an administration policy that declared: "no contacts are permitted with prospective student athletes…by University students, employees or others associated with the University without express authorization of the Director of Athletics or his designee." The administration argues that prior restraint of speech is necessary for "effective operation of its athletic recruiting system." So far, the U of I has spent over $260,000 defending itself in the case, and is liable for $5,000 for damages and about $300,000 in ACLU legal fees.

(Crue v. Aiken, 137 F. Supp. 2d 1076 (C.D. Ill. 2001); administration's brief available at www.ca7.uscourts.gov/briefs.htm, Case number 02-3627; Daily Illini, Oct. 15, 2002)

(z) University of Tennessee: six white members of the Kappa Sigma fraternity who wore blackface to a private party at an off-campus bar were not punished by the university, which declared: "The University of Tennessee is firmly committed to protecting the constitutional rights of freedom of speech and expression — even when some find it to be insensitive and offensive.” However, Kappa Sigma's national organization suspended Tennessee's campus chapter and apologized.

(AP, Nov. 29, 2002; erinoconnor.org, May 2, 2003; FIRE coverage of blackface controversies)

(aa) University of Texas at Austin: a November, 2002 report proposed a ban on “free-speech zones” and added areas where amplified sound is permitted for protests. No written permission would be needed for non-amplified protests, and signs would be allowed in buildings.

(Houston Chronicle, Nov. 11, 2002)

(bb) West Virginia University: In November 2002, West Virginia University dropped its restrictive freedom of expression policy and adopted a new set of rules which suggest, but do not require, that protests should be held in designated zones. A rule requiring groups larger 15 to receive advance permission was dropped. The only restrictions that remain are a prohibition on protesting within eight feet of another group, without consent, and a ban on protests near the entrance to campus health-care facilities.

(SPLC Report, Winter 2002-03; AP, Nov. 11, 2002)

(cc) Western Illinois University: in May 2003, the university dropped a speech zone code adopted in 1995 which required 48 hour advance reservation for the free speech zone. After students and faculty held a protest, president Al Goldfarb removed the restrictions and declared, "There is no better place for free and open expression of ideas than a public university. Our entire university represents the ideal of freedom of expression. I do not believe that we would ever want to restrict free speech to a specific area on campus."

(Peoria Journal-Star, May 6, 2003; AP, May 9, 2003)

Back to 2002-03 State of Academic Freedom Report

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