The Legal Parameters of College and University Free Speech Policies

Public colleges and universities across the country are frequently faced with issues involving free speech activities on their campuses. Some campuses permit students and non-students to engage in free speech activities (such as gathering signatures on petitions or speaking with students about religious, political or social issues of interest) anywhere on campus without restriction. More often, campuses set limitations that apply to everyone or at least to non-students, such as requiring that speakers engage in speech activities in a designated free speech area or zone and to give prior notice of their intent to use the area.

The use of free speech areas and notice requirements are often challenged as being unconstitutional restrictions on free speech rights, and may become more frequent as elections approach. For example, on June 12, 2012, a federal district court in Ohio found that a policy at the University of Cincinnati, which required that all "demonstrations, picketing, and rallies" be conducted in a designated free speech area and that speakers provide notice of such use at least five working days in advance was unconstitutional as applied to students because: (1) the notice requirement was not limited to regulation of large demonstrations or those using sound amplification, as examples, but was broadly apply to any demonstration, picket or rally and thus placed an unwarranted burden on the exercise of free speech; (2) the policy imposed conflicting notice requirements and failed to provide objective criteria for determining whether an expressive activity constitutes a demonstration, picket or rally; (3) the University provided no explanation of a compelling interest to restrict all demonstrations, picketing, and rallies to the free speech area and only speculative benefits of the notice requirement; and (4) the vague aspects of the policy presented university officials with the opportunity for arbitrary or discriminatory enforcement. (See decision here)

Cases like this are not unusual and, depending on the facts and evidence presented to the court, can have different results. Just last year, this firm obtained judgment in favor of a community college district client against a federal court challenge to the district's free speech policy and its implementation of a free speech area on one particular campus. Although the analysis as to the constitutionality of a regulation on speech is highly individualized, new court decisions can provide insight into how particular policies are likely to be interpreted in the event of a challenge. Consequently, colleges and universities should periodically review their free speech policies to verify they are legally compliant by current standards.

Free speech policies need not permit open access to all areas of a campus to students and non-students who wish to engage in expressive activities. The "First Amendment does not guarantee access to property simply because it is owned or controlled by the government." Government, like any property owner, "has power to preserve the property under its control for the use to which it is lawfully dedicated." The Supreme Court, viewing a university’s mission to be education, has further rejected the proposition that campuses must make all of their facilities equally available to students and nonstudents alike, or that a campus must grant free access to all of its grounds or buildings. Thus, free speech policies may provide a different set of rules for visitors who wish to engage in expressive activity on campus as it does for students.

Courts apply a forum analysis to determine when the government’s interest in limiting use of its property to its intended purpose outweighs the interests of those wanting to use it for other purposes. Thus, free speech policies must take into consideration the character of the property.

Government property generally is divided into three categories: the traditional public forum, the designated public forum, and all remaining property referred to as the nonpublic forum. The traditional public forum is “a place that by long tradition has been used by the public at large for the free exchange of ideas,” such as public sidewalks and parks. In these quintessential public forums, content-based restrictions are permitted if they are necessary to serve a compelling state interest and are narrowly drawn to achieve that end. Restrictions on the time, manner and place of speech are permitted and reasonable if they are viewpoint-neutral, narrowly tailored to serve a significant governmental interest, and leave open ample alternative channels for communication of the speaker’s intended message.

Government creates a designated public forum when it intentionally opens a nontraditional public forum for use by the public at large for assembly and speech. For example, the district court in the Williams case above determined that the outdoor spaces on campus, including the free speech area and campus sidewalks, were all designated public forums because they were open for student use. The same standards for a traditional public forum apply. All remaining public property, that is, all property that is not characterized as a traditional public forum or as a designated public forum, is considered nonpublic forum. Government may set time, place, and manner regulations for use of nonpublic forums, or even reserve a forum for specific purposes, as long as such is reasonable and viewpoint-neutral.

The overview of forum analysis and comments above provide only a few of the considerations that relate to free speech policies. Regular and detailed review of such policies as well as current practices, in consultation with legal counsel, is advisable.

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