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).