Free speech “zones,” police crackdowns threaten to muzzle debate

August 19, 2009

Haley Koch is a senior at University of North Carolina-Chapel Hill, a Morehead-Cain scholar and a graduate of Sidwell Friends, a northeastern high school that counts Chelsea Clinton and Gore Vidal among its alumni. Koch has received numerous UNC-CH awards for her work as an LGBT activist and community organizer. In mid-April, she accepted the Engaged Scholarship Award on behalf of UNC-NOW, a grassroots student group Koch works with.

A few days later, on April 23, she garnered another distinction: She was arrested by campus police outside of a classroom.

Koch is charged with disorderly conduct in connection with the now-infamous April 18 protest of a speech by former Republican Congressman Tom Tancredo in UNC-CH’s Bingham Hall. That night, left-leaning students protested Tancredo’s anti-immigrant positions with a "dance party for diversity" that devolved into a raucous rally. Campus police used pepper spray and waved a crackling Taser to disperse a crowd of protesters from the building, and, after a student outside Bingham Hall shattered a window, Tancredo fled campus with a ragtag band of protesters running behind him, shouting insults. He barely had a chance to speak.

The incident report filed by Koch’s arresting officer is riveting. Officer Michael Davis wrote of being ordered to wait outside the Frederick Brooks building where Koch’s class was in session and then to proceed with the arrest when she left early. Incidentally, the lieutenant who ordered Davis to make the arrest is the same officer Koch has accused of throwing her to the ground at the protest. "For her comfort, I allowed KOCH to remove her backpack before placing her in handcuffs," Davis wrote. Koch was taken to the Orange County Jail in Hillsborough and later freed on $1,000 bond. She goes to court in September.

Koch’s predicament wasn’t entirely unpredictable, given North Carolina’s complicated history of free speech on campus. In the summer of 1963, the General Assembly pushed through the Act to Regulate Visiting Speakers, a nasty piece of Cold War censorship that effectively banned any communist or communist-leaning speakers from state campuses. That law was struck down by the courts five years later, but more recent events at UNC, North Carolina State University and other colleges and universities illustrate that free speech is not as free as it should be.

"We’ve seen incidents at UNC schools that suggested an institutional lack of free expression," said Will Creeley, director of legal and public advocacy for the nonpartisan Foundation for Individual Rights in Education (FIRE ).

Protesters found few friends in the days that followed the speech that wasn’t. They were pilloried on editorial pages for engaging in the "heckler’s veto," a protest that becomes so rambunctious the speaker can’t deliver his or her message. Case law on the heckler’s veto is murky; the Supreme Court has delivered contradictory rulings on its use. Creeley told the Indy the heckler’s veto was "patently unconstitutional." "Free expression does not include the right to silence those with whom you disagree," he said.

The tactic is on the rise, both in right- and left-wing activist circles, and treads in treacherous First Amendment waters. Protesters may be displaying bad taste and disrespect for the spirit of the First Amendment, but they break no law by shouting down a speaker. The government, however, acts illegally when it attempts to silence a peaceful protest. Whether the discussion is about Tom Tancredo’s immigration policies or President Obama’s alleged "death panels," as the right erroneously has characterized a provision in his health care reform, it shifts from a meaningful debate to a shouting match. Indeed, the original purpose of the Tancredo speech-the legitimacy of in-state college tuition for the children of undocumented immigrants-went out the broken window. The aftermath of the event has been about the protesters, not the issues.

UNC-CH Chancellor Holden Thorp called Tancredo to apologize and warned that protesters could face charges. In an open letter to UNC-CH affiliates, Thorp condemned the protesters’ tactics, saying they diverged from the university’s tradition of free speech and debate. The following week at UNC, six nonstudent protesters were arrested at a speech by Virginia Congressman Virgil Goode, but Koch remains the only individual charged in relation to the Tancredo incident.

UNC-CH police spokesman Randy Young indicated Koch was arrested because she was the only student officers recognized on YouTube videos of the rally. As Thorp noted in an interview with the Indy, "Haley is a well-known person."

As a result of being singled out for arrest, Koch, who describes herself on her Twitter feed as a "radical queer femme-inist artist activist with a love of social justice and sparkles," has generated attention from the far right and white supremacist undergrounds. They have taken a keen interest in her case, with online threads mocking and threatening her on Stormfront, a "white pride world wide" Web site. One blog was set up just to display embarrassing photos of her. Other bloggers said they’ll celebrate when Koch ends up raped and murdered by the nonwhites she keeps company with.

"For [UNC-CH] to do this to one of their students is pretty appalling to me," Koch told the Indy. "It’s really hard for the place that you consider a home to throw you to the literal wolves."

But if free speech is a war between John Stuart Mill’s "living truth and dead dogma," Haley Koch isn’t the only casualty. Not long after the Tancredo protest, physics professor Chris Clemens, faculty sponsor for Youth for Western Civilization, the group that invited Tancredo, told the group’s members that he would only continue to sponsor them if they dropped their affiliation with the national YWC. The national YWC was co-founded by Marcus Epstein, a former Tancredo speechwriter who pled guilty to a hate crime this summer. (One evening at Jefferson and M streets in Washington, D.C., Epstein called an African-American woman a "nigger," as he delivered a karate chop to her head.) YWC’s connection to white supremacy made it a lightning rod of controversy on campus. But Chapel Hill members refused to end their affiliation, and Clemens removed his support. At press time, YWC had been unsuccessful in finding a new faculty sponsor for the coming school year.

NCSU Vice Chancellor for Student Affairs Thomas Stafford received a call around 8 in the morning on Nov. 5, 2008. There was something written in the Free Expression Tunnel that he needed to see.

NCSU’s Free Expression Tunnel passes under the railroad tracks that cut between the university’s north and central campuses. It is essentially a legal graffiti zone, where jokes, artwork, sorority party advertisements and the occasional political statement are painted, and painted over.

Stafford found something far outside the norm that morning. Someone had written "Shoot that nigger in the head!" in the Free Expression Tunnel, in reference to Barack Obama, who had been elected president the day before. School administrators had the comments painted over. Four students were quickly identified as the perpetrators. The U.S. Secret Service, after a short investigation, determined there was no real threat to the president-elect. But the uproar was just beginning.

NCSU Multicultural Center Director Tracey Ray called for the students’ prosecution. The NAACP demanded their expulsion. The NCSU Student Senate debated a policy that would prohibit "hate speech" on campus. Amid the furor, the four students involved in writing the comments issued an anonymous apology and agreed to attend racial sensitivity counseling.

"One of the things [one of the students] told us was, ‘Back where I come from, people say stuff like this all the time, and nobody ever says anything about it,’" Stafford said. "I think it’s really changed this young man."

The First Amendment basically outlaws any government prohibition of speech that doesn’t rise to the level of incitement of violence, so NCSU officials’ hands were tied: The students went unpunished. But in a sense, the public outrage over their actions was punishment enough to at least teach them that the public expression of racist ideas is unacceptable. On the surface, this appears to be a positive expression of the "free marketplace of ideas" lauded by First Amendment enthusiasts-nasty, negative public speech was overwhelmed by positive, constructive speech. But it’s not quite that simple.

Lost in the Free Expression Tunnel brouhaha was much discussion about the fact that officials painted over the statements almost immediately. In fact, NCSU has an ongoing practice of censoring certain "offensive" sentiments written in the tunnel, even though Stafford notes that the tunnel has a pretty good "self-censorship" mechanism-if students see something they don’t like, they paint over it. After the incident, The Technician, the student newspaper, reported that campus officials regularly monitor the tunnel, take pictures of offensive statements and review video from a camera that monitors the tunnel’s entrance.

No reasonable person would publicly defend the students’ graffiti. But for a state authority-NCSU, in this case-to restrict speech, the restriction can’t have anything to do with the speech’s content. "Mere dissemination of ideas-no matter how offensive to good taste-on a state university campus may not be shut off in the name alone of ‘conventions of decency,’" the Supreme Court ruled in Papish v. Board of Curators.

There’s few better illustrations of the landmines inherent in censorship than the work of a 1979 wannabe poet. A poem (if it deserves the name), written in response to the Iran hostage crisis, calls Muslims "pigs" and "swine dogs." For years, NCSU displayed an image of the full poem on its Web site as an example for prospective students of just how free the Free Expression Tunnel was.

After the election night incident, the photo was removed from the Web site without explanation.

In the 1960s, when the American student protest movement hit its high-water mark, a wave of universities across the country instituted so-called free speech zones, dedicated areas for rallies in often out-of-the-way parts of the campus. The use of such zones spread beyond campus during the presidency of George W. Bush, when protesters were often corralled into areas that were completely invisible to both the press and the president. Of course, placing "free" speech in a zone naturally implies that areas outside that zone are not free, and the ACLU and other speech advocates have spent decades fighting the policies that created them.

In the winter of 2005, two libertarian students at UNC-Greensboro challenged a long-standing university rule by protesting outside of two tiny free speech zones. UNC-G attempted to charge the students with a "violation of respect" when they refused to honor an administrator’s order to relocate into one of the pre-approved zones. After a public outcry, UNC-G dropped the charges against the students and the policy in question.

Sadly, that didn’t stop Winston-Salem State University from enacting similar rules in December 2007; WSSU’s free speech zone survived for about a month until public outrage prompted administrators to change the rule.

In February of 2009, Thorp announced new restrictions on student protests at UNC-CH, in response to a sit-in by Student Action with Workers (SAW) in the spring semester of 2008. The new rules were more lenient than those enacted at UNC-G or WSSU, but still created significant barriers to student protest, including the requirement that protesters end some demonstrations by 5 p.m., stay in public areas and not bring anything with them to indoor protests besides a bagged lunch.

"The administration has been whittling away freedoms that students and workers have won," said Laura Bickford, a UNC-CH senior and spokesperson for the Protesters’ Defense Committee, a group organized to fight the charges against Koch and the six others charged.

Limitations on student speech have not been restricted to public universities. In 2007, Raleigh’s Meredith College herded nonstudent activists protesting a speech by House Speaker Nancy Pelosi into a free speech zone that wasn’t visible to most attendees of the event. Police confiscated the activists’ antiwar pamphlets. The Orwellian response was typical of Meredith’s anti-speech policies: Students there are admonished to "express their views through established channels of communication," which, at Meredith, means getting the administration’s permission to protest.

As a private university, Meredith isn’t held to the same constitutional standards of speech as public universities, but Meredith’s policies indicate a troubling trend toward censorship and incremental restriction of student speech.

UNC System President Erskine Bowles responded to the Free Expression Tunnel incident by forming the UNC Study Commission, which was rumored to be considering recommending an antihate speech rule for all state campuses. A hate speech restriction has been a popular rallying cry for left-wing activisits conconcerned with racism, sexism and homophobia. But hate speech prohibitions-aside from being unconstitutional-are nearly impossible to enforce. Gonzaga University learned this a few years ago, when it drew national attention for forcing a right-wing group to stop printing a tract titled "Why the left hates America" on the basis that this was "hate speech."

Luckily, the Study Commission dodged that bullet. When the group released its recommendations in March, it called instead for a unified hate crime rule. The UNC Board of Governors is mulling the proposal.

Though U.S. courts have increasingly upheld speech restrictions on high school students, such as the "Bong Hits 4 Jesus" case, the public university has long been defended as one of the most sacred venues for free expression. Students learning to be citizens in a democratic society need to be exposed to the widest range of ideas possible, even if it means letting them hear or see something that offends them. Justice Abe Fortas, writing for the majority in the landmark student speech case Tinker v. Des Moines Independent School District: "Any word spoken… on the campus, that deviates from the views of another person, may start an argument or cause a disturbance. But our Constitution says… it is this sort of hazardous freedom… that is the basis of our national strength."

Campus speech has challenges ahead. Haley Koch’s sentencing in September, the continuing censorship of the Free Expression Tunnel and the UNC Board of Governors’ response to the Study Commission’s recommendations will all gauge the strength-or weakness-of this hazardous freedom.

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