It has been 50 years since the Free Speech Movement began at UC Berkeley in 1964, and approximately 40-50 years since near-riotous conditions overwhelmed college campuses in the late 1960's and early 1970's. In our own time, it is about three years since the 2011 Occupy events and large-scale tuition protests erupted on college campuses. This year, in contrast, may be a quiet Fall of 2014 on college campuses (although one never knows).
There is one exception though, and it is a significant one – lawsuits. There is a fair chance colleges will see an increase in expensive lawsuits brought by students or outsiders to challenge campus policies in the name of free speech. Challenges are expected to involve policies that impose definitions of the campus areas where expressive activities may take place, those that require students or outsiders to wait several days before access to those areas, and those that require permits for area use. Targeted policies may also include those that impose prohibitions on speech in the form of student codes of conduct or harassment policies. At an increasing pace, civil rights lawyers are already filing these types of lawsuits, and prominent commentators and journalists are joining the debate – often on the side of those challenging college policies.
A lawsuit was recently brought by students at the University of Hawaii at Hilo against administrators for allegedly restricting speech activities to a small area of campus, and prohibiting a student from distributing literature outside the area. Another lawsuit was brought against a community college in southern California asserting that its free speech areas on campus were too small and that the school had a harassment policy applicable to students that was overbroad. Both lawsuits were filed in federal courts. They ask that the challenged policies be found illegal and that the plaintiffs be paid damages and their attorneys' fees. These types of cases can attract substantial media attention, which in turn can lead to public outcries (well-founded or not) against the university or college for having supposedly engaged in censorship.
A major proponent of these lawsuits is the Foundation for Individual Rights in Education ("FIRE"), a campus free speech advocacy group headquartered in Philadelphia. FIRE announced at a press conference in Washington D.C. on July 1, 2014, that it was supporting four separate civil rights lawsuits filed that day against institutions of higher education in different parts of the country for alleged free speech violations. FIRE stated ominously that they expected more lawsuits of this type to be filed against colleges soon. Colleges and universities can take measures to protect themselves against such lawsuits, and at the same time insure they are advancing principles of free speech, by a careful review of existing policies governing freedom of expression on campus.
The following are key policy items to review:
Free speech areas or zones: Many public colleges have "time, place, and manner" regulations which require that speech activities by students or outsiders -- such as demonstrations, picketing, leafleting, rallies, and other similar activities -- take place in particular identified areas of campus. However, free speech areas or zones that are too small, or so remote that speakers do not have sufficient access to audiences on campus, can result in claims of free speech violations. If a college chooses to limit expressive activities to specific areas, it must ensure that the size and location of those areas provide ample access to passersby on campus and opportunities to draw spectators. The areas should not be situated in a way that unreasonably deprives the speakers of meaningful access to their intended audiences. The college's specification of areas as limited or designated public forums ideally should correspond to the way students and outsiders already use those areas for free expression.
Many constitutional rights advocates believe that public colleges should not be able to limit speech activities to specific zones on campus at all, especially when the speakers are students. Case law may issue in the next year to provide further guidance on this point.
Permit Requirements: Colleges should be mindful of prior restraint concerns. A prior restraint exists when the exercise of protected expression is contingent upon pre-approval or licensing by government officials. Prior restraints are not unconstitutional per se, but Courts will review them very carefully to see if they meet a number of stringent legal tests.
Prior restraint concerns can arise if a college requires students or outsiders to obtain permits in advance to use the speech areas, and if those permits involve some oversight or review process. If administrators are authorized to review activities or materials to decide whether the speech activities are "appropriate," or words to that effect, there can be serious constitutional problems, as this type of vague standard would effectively allow administrators to censor speech.
To avoid prior restraint concerns, many institutions do not require any license, permit, or pre-authorization, and instead simply ask that those using designated areas check in and provide contact information before doing so. Also, many colleges do not have any waiting period for use of free speech areas.
Insurance or indemnification requirements: Insurance or indemnification requirements may also present constitutional free speech problems. Some public colleges require all those who wish to engage in expressive activities, such as rallies, demonstrations, or picketing, to provide proof of insurance, or to indemnify the college for any accidents or injuries resulting from their activities. Such requirements present First Amendment concerns because they limit those who are able to use the areas, sometimes regardless of whether they actually engage in an activity that risks property damage or injury. A review of case law involving cities and counties which have imposed such policies can be useful to colleges in formulating these types of requirements. But care must be taken in determining precisely how they are structured. The best course from a constitutional perspective is not to impose insurance or indemnification requirements.
Vague or Overbroad Standards in Student Codes of Conduct or Harassment Policies: If a college has rules that – even if well-meaning – encompass too much speech as potentially prohibited, then a court may find that the rules violate the First Amendment. Examples include "bullying" policies that, among other things, contain a prohibition on simply "offending" anyone. Another example might be a sexual harassment policy that contains overly broad definitions of the types of speech that are included. This type of language is potentially broad enough to encompass speech that normally would never be considered harassment and that instead would traditionally be considered protected.
To avoid challenges, policies on student conduct and harassment should include prohibitions that are concise, clear and narrowed to conduct of legitimate concern to the college. The college should avoid subjective terms that could confuse reasonable people about what is actually prohibited. In addition, policies should be reviewed to determine if anyone could reasonably construe any provision as discriminating against particular viewpoints.
Carefully crafted policies and procedures are the key to winning free speech challenges. The best litigation strategy is, obviously, to put such policies into effect before any dispute arises.
One other important point: in California, it is not just public colleges and universities that must insure that policies comply with constitutional free speech principles. By statute, private universities must do so as well, insofar as the policies apply to students. California Education Code section 94367 provides: "No private postsecondary educational institution shall make or enforce a rule subjecting a student to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when engaged in outside the campus or facility of a private postsecondary institution, is protected from governmental restriction by the First Amendment to the United States Constitution or . . . the California Constitution." There is scant case law interpreting section 94367, which has been in effect since 1992. But it is clear that the language means that private colleges and universities must also respect the free speech rights of their students, and insure that defensible policies are in place.
We will report on the recently filed cases as developments occur, especially if they generate new law that will be relevant to colleges and universities in their policies affecting free speech on campus.
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