December 9, 2011
President Jay Gogue
Office of the President
107 Samford Hall
Auburn, Alabama 36849
Sent via U.S. Mail and Facsimile (334-844-6179)
Dear President Gogue:
As you can see from the list of our Directors and Board of Advisors, the Foundation for Individual Rights in Education (FIRE) unites leaders in the fields of civil rights and civil liberties, scholars, journalists, and public intellectuals from across the political and ideological spectrum on behalf of liberty, legal equality, academic freedom, due process, freedom of speech, and freedom of conscience on America’s college campuses. Our website, thefire.org, will give you a greater sense of our identity and activities.
FIRE is concerned about the threat to free speech posed by Auburn University’s demand that a student in one of its residence halls remove a political campaign banner hung inside his dorm room window, even though the university permits similar expression by other students. This selective enforcement of Auburn policy constitutes viewpoint and content discrimination, in violation of Auburn’s legal and moral obligations, as a public university, to uphold freedom of speech on campus.
This is our understanding of the facts. Please inform us if you believe we are in error.
In early November 2011, Auburn student Eric Philips hung a banner supporting Representative Ron Paul’s 2012 presidential campaign inside his window in Tiger Hall. On November 7, Philips’ hall director saw the banner and ordered that Philips take it down, which Philips did. On November 18, Philips spoke with Village Area Director Nick Wiard and asked for an explanation of Auburn’s posting policies. Wiard cited Auburn Housing and Residence Life policy 1.4.5, which states: "Hanging or displaying items such as flags, banners, decals, or signs out of or obstructing residence hall windows is prohibited." When Philips asked whether this meant that the policy prohibited him from hanging his banner inside his window, Wiard clarified that it did.
Philips and Wiard discussed the matter again on December 1. Philips cited evidence of a double standard in enforcement of the policy. FIRE is in possession of this evidence, which consists of photographs of large banners and American flags hung outside of several windows, in addition to photographs of other expressive material hung inside various windows, at Tiger Hall and nearby residence halls. Some of the displayed materials substantially obstruct residence hall windows.
While a public university may establish reasonable "time, place and manner" restrictions as allowed by cases like Ward v. Rock Against Racism, 491 U.S. 781 (1989), such restrictions must be content- and viewpoint-neutral. Philips’ expression, however, appears to have been singled out simply because his banner supported Rep. Paul. Such selective enforcement and viewpoint-based discrimination is untenable at Auburn, a public university bound by the First Amendment. Auburn must evenly enforce its policies on student expression, but to date, no Auburn official has resolved the university’s discriminatory enforcement of its policy.
Auburn would do well to remember the Supreme Court of the United States’ guidance on the importance of the First Amendment on public college campuses. The Court has noted that "the precedents of this Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large. Quite to the contrary, ‘the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.’" Healy v. James, 408 U.S. 169, 180 (1972) (internal citation omitted). Moreover, with regard to the type of expression specifically at issue here, the Court has held that "speech concerning public affairs is more than self-expression; it is the essence of self-government," reflecting "our profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open." Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964) (internal quotations omitted).
Auburn may also wish to consider the example set by the University of Texas at Austin (UT) during a similar controversy. In 2008, during the height of the presidential campaign season, two UT students faced disciplinary charges and possible expulsion for placing political posters on their dorm room doors and windows in violation of UT policy. After criticism from UT’s University Democrats and College Republicans and a surge of national media attention, UT President William Powers Jr. ordered the immediate suspension of the regulation. Powers professed in a statement to the UT community that "I believe that the free expression of ideas is crucial to our educational mission," and he undertook a review of the policy with the assistance of a committee of students, faculty, and staff members. Powers later accepted the committee’s recommendation that the suspension of the policy be made permanent. The committee’s final report notably stated:
Students are free to communicate their ideas vigorously; those who are exposed to such ideas, whether in the classroom, the grounds of the campus, or in the residence halls, should tolerate the expression even of views that they find offensive or unacceptable …. The best response to offensive speech is more free speech.
FIRE asks that Auburn University clarify its position on window postings in light of the gulf between its policy and its discriminatory enforcement. Auburn may not selectively waive enforcement of its policy on the basis of content or viewpoint; the policy must be enforced with regard to all relevant expression or none.
We appreciate your attention to this important issue. We request a response by December 30, 2011.
Assistant Director, Individual Rights Defense Program
Ainsley Carry, Vice President for Student Affairs, Auburn University
Kim Trupp, Director, Housing and Residence Life, Auburn University
Nick Wiard, Village Area Director, Auburn University