Big Brother’s Lawyers

Free speech zone – It is shorthand for holding two contradictory opinions while believing in both of them. Incongruous logic, to be sure. And yet, that is the mindset that too many public college administrators impose on students in an attempt to make them believe that the best way to honor the First Amendment is by abridging it. They do so by restricting student speech to tiny “free speech zones” and by strictly controlling access thereto.

Such Orwellian doublethink is dystopian in principle and destructive in practice. Worse still, though many such policies are patently unconstitutional, an unfortunate number of university lawyers defend them until legally contested or fought out in court, whereupon taxpayers flip a hefty bill for their unconstitutional actions. Nonetheless, no one holds these public servants to account for their transgressions.

Cases in point: As late as 2012, the University of Cincinnati’s policy limited all “demonstrations, pickets, and rallies” to a “Free Speech Area” comprising just 0.1% of the university’s 137-acre West Campus. Much the same logic informed a Texas Tech University rule that once confined First Amendment activities to a single 20 foot-diameter gazebo – this for a campus of 28,000 students! Both policies were unconstitutional, but they were abandoned only after lawyers representing students took action.

Such examples are hardly past tense. Take Southeastern Louisiana University’s policy. It limits student speech to two hours every seven days and designates three areas of campus for assembly. The policy likewise requires a full week’s advance notice for assemblies and obliges all applicants to provide their birth date and Social Security number. Finally, consider the free speech policy of Modesto Junior College (MJC) in California. It limits speakers to one “little cement area.”

Against that backdrop, MJC’s Orwellian rules are being tested in a federal court. The case involves Robert Van Tuinen, a MJC student. Mr. Van Tuinen started to distribute copies of the Constitution on Constitution Day. But his non-obstructive civic-minded acts were deemed unlawful. Why? Because they were outside the ordained little portion of the school’s East Campus. Moreover, he had not complied with the school’s strict five-day prior application policy. As stated in the complaint contesting the rule, the MJC policy also “limits all individuals and student groups to using the free speech zone for no more than eight hours each semester. Given the size of the student body, the free speech ‘allowance’ amounts to scarcely more than two-and-half minutes per student, per semester.” Mind you, these rules were designed or approved or enforced and/or defended by lawyers acting on behalf of the College.

Though the College may regulate the “time, place, and manner” of campus speech, its policies are well beyond the pale of that tenet of law. The MJC policy unduly abridges student rights by confining them to tiny areas; it likewise constitutes an impermissible prior restraint; as applied, the policy is also unconstitutionally overbroad in regulating time, place, and manner; and finally, the rule is unduly vague insofar as it has no meaningful criteria to determine whose “free speech zone” applications are granted or denied.

Robert Corn-Revere, a noted First Amendment lawyer, is representing Van Tuinen. His petition seeks declaratory and injunctive relief along with monetary damages for the violation of his client’s constitutional rights. He also seeks reasonable attorneys’ fees. And then there is the institutional cost of defending such unconstitutional policies.

Regrettably, such policies are not aberrational. “Though free speech zones like that of MJC are consistently defeated in court,” says Greg Lukianoff (president of the Foundation for Individual Rights in Education), “our latest research shows that one in five public four-year colleges we surveyed have unduly restrictive free speech zone policies.”

What to do? First, college administrators must understand that exercising First Amendment rights in a peaceful and civil manner can further the mission of liberal education. Second, university attorneys should review their policies to be sure they comport with both the letter and the spirit of the First Amendment. Third, the National Association of College and University Attorneys should consider revising the 2009 guidelines it circulated concerning “campus facilities use policies,” especially the section concerning First Amendment freedoms. Rather than pruning down to the narrowest scope of such freedoms, it should instead identify ways to enhance bona fide First Amendment rights. Finally, First Amendment lawyers such as Mr. Corn-Revere, educators such as Robert M. O’Neil (past president of the University of Virginia), and activists such as Mr.  Lukianoff should be included in the process.

If colleges teach First Amendment principles, they should take care to practice them, too.

 

Ronald Collins is the Harold S. Shefelman scholar at the University of Washington School of Law. His next book (with David Skover) comes out this spring and is titled When Money Speaks: The McCutcheon Case, Campaign Finance Laws & the First Amendment (Top Five Books).

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6 Responses

  1. Brett Bellmore says:

    “First, college administrators must understand that exercising First Amendment rights in a peaceful and civil manner can further the mission of liberal education.”

    Perhaps the problem is that one in five college administrators disagree about what the mission of liberal education is? Perhaps they think that mission is indoctrination in a predetermined set of beliefs, “liberalism”, and any speech which might interfere with that mission must be suppressed.

    I think that is what is really going on here. Some people running colleges just think of them as indoctrination centers.

  2. I don’t see the problem. Students are learning a valuable lesson, if you want free speech, you must learn to tie it to the power of money. With the corporatization of higher education (which is distinct from that other disturbing trend: the privatization of education and the growth of for-profit higher education institutions),* one consequence of the triumph of Neoliberalism, what better age-appropriate institution to drive home that lesson? This corporatization of the university complements and reinforces (if it is not directly related to) an ideological transformation that began several decades ago, as recently noted by J.M. Coetzee:

    “This assault commenced in the 1980s as a reaction to what universities were doing in the 1960s and 1970s, namely, encouraging masses of young people in the view that there was something badly wrong with the way the world was being run and supplying them with the intellectual fodder for a critique of Western civilisation as a whole.

    The campaign to rid the academy of what was variously diagnosed as a leftist or anarchist or anti-rational or anti-civilisational malaise has continued without let-up for decades, and has succeeded to such an extent that to conceive of universities any more as seedbeds of agitation and dissent would be laughable.

    The response of the political class to the university’s claim to a special status in relation to the polity has been crude but effectual…. [….] The fact is that the record of universities, over the past 30 years, in defending themselves against pressure from the state has not been a proud one. Resistance was weak and ill organised; routed, the professors beat a retreat to their dugouts, from where they have done little besides launching the intermittent satirical barb against the managerial newspeak they are perforce having to acquire.”

    As Coetzee further points out (and he’s not the first to do this),

    “A certain phase in the history of the university, a phase taking its inspiration from the German Romantic revival of humanism, is now, I believe, pretty much at its end. It has come to an end not just because the neoliberal enemies of the university have succeeded in their aims, but because there are too few people left who really believe in the humanities and in the university built on humanistic grounds, with philosophical, historical and philological studies as its pillars.”

    In short, an abiding and honest concern with constitutionally protected free speech ill-fits with the university’s mission as merely a training ground for future employment in the new economy.

    * Please see the reading list here: http://www.religiousleftlaw.com/2013/05/the-corporatization-of-higher-education-a-basic-reading-list.html

  3. AYY says:

    I’m not so sure Coetzee is right, except in the most basic sense. Seems to me that universities get regulated by just about every administrative agency at every level there is, and their trustees are independent of the legislature, so what they can do is limited more by the agencies and the trustees than by the politicians. And then the foundations offer grants, but their money has strings attached, so the foundations probably have some say in how things eventually work out.

    As for the humanities,things went downhill fast once the postmodernists got a foothold. Now it’s hard to find a place where the tenured radicals aren’t in charge. The recent incident at Brown is but one illustration of how they aren’t exactly supportive of free speech when the speech is something they don’t like.

  4. G. Tod Slone says:

    Great point on dystopia! As for Modesto (MJC), it is of interest to note that it no longer even contains a student newspaper! The Pirate’s Log was dumped in April 2011 because of budgetary concerns (see http://www.collegemediamatters.com/2011/04/25/modesto-junior-college-drops-student-newspaper-entire-mass-comm-program/). What an excellent way to eliminate the voice of possible dissidence!

    That discovery was made because I wanted to send the cartoon I drew on the Van Tuinen case (see http://wwwtheamericandissidentorg.blogspot.com/2013/11/jill-stearns.html), As you can see, I am a strong believer in naming names, an excellent form of quality control. The one fault I’d attach to that great organization, the Foundation for Individual Rights in Education, is that it rarely, if ever, names the names of those dubious professors and administrators who actually created and support speech codes and speech zones.

    As a footnote to the Van Tuinen case, I was actually approached by police at Cape Cod Community College a month ago because the dean in charge of the Wilkens Library had called them. What was I doing? Well, I was standing quietly, holding a sign: CELEBRATE THE ANNIVERSARY OF THE BILL OF RIGHTS, NOT BANNED BOOKS WEEK. That’s right. One of the cops told me to stop recording him. So, I stopped. Later, I discovered I had a legal right to do so.

    As for Banned Books Week, I was protesting librarian hypocrisy because the Clams Library System of Cape Cod, which includes Wilkens, refuses to subscribe to the nonprofit journal I publish on Cape Cod, The American Dissident ($20/year). Two of the libraries even rejected a free subscription offer! One of those, Sturgis Library, my very neighborhood library, permanently trespassed me without warning or possibility of due process in June 2012. What had I done? I wrote a letter one-week prior to the trespass order to the 25 library directors in the system, pointing out librarian hypocrisy, especially regarding librarian policy, which clearly stipulates: “Libraries should challenge censorship […]” and “should provide materials and information presenting all points of view”.

    Clearly, the trespass order underscores that very hypocrisy. Interestingly, it took nine months for me to obtain documents, regarding the verbal decree. The Secretary of Records for the State of Massachusetts ordered the library to do so because it deemed the library was serving a public purpose, thus was held to freedom of information.

    Sadly, not one official document regarding the order seems to even exist. The only thing explaining it is an email sent, after the order was verbally issued to me, by the director to the library’s trustees. Oddly, the reason provided was also post factum.

    “Because of his behavior when the police were here they almost arrested him. He can go from calm to extremely agitated in a matter of seconds. So this is the correct decision for the safety of the staff and public. If he does come into the library, the police have advised us not to interact with him but simply call them and they will come and arrest him.”

    So now I had an almost-arrested police record and almost appeared in the almost-arrested blotter of the local newspaper. And, by the way, who not on Prozac or whatever else one ingests nowadays would not have become “agitated” at such an egregious affront to freedom of expression? No less than three cops appeared when I was quietly working alone in a room in the library! No warning and no possibility of due process occurred.

    Now, does anyone know of a pro-bono lawyer who’d be interested in helping me recoup my civil rights (I am prohibited from attending any cultural and political events held in my neighborhood at that library!)? The ACLUM, PEN New England (“defending freedom in New England”), American Library Association’s Office of Intellectual Freedom, the ALA’s Freedom to Read Foundation (“Defending the First Amendment in Libraries and Beyond”), Massachusetts Board of Library Commissioners, the National Coalition Against Censorship, and my alma mater Northeastern University’s New England First Amendment Center do not care!

    G. Tod Slone, PhD and Founding Editor (1998)
    The American Dissident, a 501c3 Nonprofit Journal of Literature, Democracy, and Dissidence
    http://www.theamericandissident.org
    wwwtheamericandissidentorg.blogspot.com
    todslone@hotmail.com
    217 Commerce Rd.
    Barnstable, MA 02630

  5. Brett Bellmore says:

    There’s an old saying, I don’t recall the exact wording or the author, but the gist of it is this: “When you’re in power, you let me advocate my position, because that’s what you believe in. But if I gain power, I won’t let you advocate your position, because that’s what *I* believe in.”

    I’ve mangled it horribly, of course. But the essence of it is that a large part of the left only valued freedom of speech and conscience because they weren’t in power, and see no value in it if they’re the ones issuing the rules.

  6. Jorge Saul Garcia says:

    @1, @4: Brett, nowhere in the article does it say that the colleges apply their free-speech-zone policies based on the content of the speech. But you have—twice now—implied that these policies are just a “tool of the left” to shut down conservative viewpoints. You must be reading a different article than the rest of us.

    You may be having a knee-jerk reaction to the word “liberal” in the phrase “liberal education.” I suggest you consult a doctor, and then a dictionary, to get that cleared up.