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Free Speech Zones on University Campuses Violate Free Speech

Academic Freedom Challenged by Restricted Student Speech

It’s hard to believe but many universities have designated “free speech zones” on their campuses as a way to restrict the open expression of ideas to small areas of public property. Maybe it’s just me – although I doubt it – but I find this to be an anathema to the concept of academic freedom that is the bedrock of academic institutions.

The Foundation for Individual Rights in Education (FIRE) has taken the mantel of free speech rights to support students and faculty that fight back against such policies. According to FIRE, the First Amendment protects freedom of speech on public campuses so that when students and faculty fight back, whether in a real courtroom or just the court of public opinion, they usually win. FIRE provides examples of eleven of the most inspiring victories over campus free speech zones in recent memory. I will discuss just one such case at the University of Cincinnati (UC) that is one of the most recent victories over free speech zones on campus.

Chris Morbitzer and his campus chapter of Young Americans for Liberty (YAL) successfully challenged a free speech zone policy at UC. When Morbitzer and his group sought permission to gather signatures across UC’s campus for a time-sensitive, statewide “right to work” ballot initiative, the school denied their request. In fact, UC told Morbitzer that if they saw anyone from YAL gathering signatures outside of the school’s tiny and restrictive “free speech zone,” they would call campus security and the group members could be arrested. The zone comprised just 0.1% of campus, required registration with the university ten working days in advance and permitted only one speaking event at a time. Morbitzer was concerned that he might not gather many signatures if he was confined to the free speech zone so he took a bold step: With the help of FIRE and Ohio’s 1851 Center for Constitutional Law, he sued his school. In response, United States District Judge Timothy S. Black held that UC’s policy “[violated] the First Amendment and cannot stand.”

The First Amendment to the U.S. Constitution provides that Congress shall “make no law...abridging the freedom of speech....” The First Amendment is made applicable to the

States through the Fourteenth Amendment. For example, the California Constitution provides that “[e]very person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.”

It is widely understood that freedom of speech prohibits the government from interfering with one’s own speech. It is less well known that this same prohibition extends to interfering with the right to hear what someone else has to say, or compelling someone to express certain views, adhere to a particular ideological viewpoint or subsidize speech to which s/he objects.

 “Speech” that is protected by law includes a broad array of expressive conduct -- oral, written, pictorial and other expressive means that convey an idea. “Symbolic speech,” such as burning the flag at a protest rally, is also protected, so long as it is not intertwined with additional factors such as disruptive conduct, which is not protected.

Speech that is “de minimis”-- e.g., a student’s complaint about a seating assignment, or the fact that a theater student is compelled to recite certain lines for a play – is excluded from constitutional protection.

Also excluded is speech that promotes an unlawful end, such as: (1) promoting actual violence or harm – i.e., yelling ‘fire’ in a crowded theater; (2) fighting words; (3) true threats; (4) expression that constitutes criminal or severe harassment; (5) defamation; (6) obscenity (this recalls the old adage: “I’ll know it when I see it’); (7) false advertising; or (8) the use of public resources for partisan political activities.

It could be that UC believed Morbitzer’s group action in gathering signatures for the right to work ballot initiative fell into the eighth category and, therefore, could be excluded from free speech protections. That makes no sense to me since the use of land to hold a rally hardly entails using public resources. The group didn’t ask UC to fund their efforts.

Because UC is a public university bound by the First Amendment, Morbitzer shouldn’t have needed to ask permission. As the Supreme Court held in Watchtower Bible and Tract Society of NY, Inc. v. Village of Stratton (2002), “It is offensive—not only to the values protected by the First Amendment, but to the very notion of a free society—that in the context of everyday public discourse a citizen must first inform the government of her desire to speak to her neighbors and then obtain a permit to do so.”

Universities exist to have a free exchange of ideas. The notion that a university – public or private – should be able to restrict free speech to designated areas makes a mockery of the very purpose of such institutions.

Blog posted by Steven Mintz, aka Ethics Sage, on December 18, 2013