Litter, legal ambiguity and your First Amendment rights

February 20, 2008

When the College of Literature, Science and the Arts announced a new policy that would regulate the distribution and posting of publications, fliers and signs in LSA buildings, free speech advocates cried foul. The policy, which would only grant distribution rights during fall and winter semesters to student groups that comply with registration and content criteria, seemed to many a blatant violation of the First Amendment. It’s counter-intuitive, a public institution that limits the speech of the public.

The University’s Faculty Handbook states, "Because the search for knowledge is our most fundamental purpose, the University has an especially strong commitment to preserve and protect freedom of thought and expression."

But regulation of public speech is all but removed from the University’s policies. The same could be said for many of the University’s public peers. In the age of what journalist Michael Gould-Wartofsky described as the "homeland security campus," restriction of speech by universities through the establishment of content codes and official "free-speech zones" is more common than ever.

As was the case in the University’s explanation of the LSA distribution policy, universities that enforce such policies have justified them using a line of argument many free speech advocates reject. But between differing interpretations of First Amendment rights and existing University policies, one question remains: How "free" is free speech at the University of Michigan?

Everyone knows the First Amendment protects freedom of speech and of the press. But there are limits. Courts have said that "time, place and manner" restrictions on speech are OK. That’s what prohibits yelling "Fire!" in a crowded movie theater. By definition, "time, place and manner" restrictions are content-neutral, narrowly focused restrictions on speech or expression that serve a governmental purpose. For the University’s purposes, the danger of slipping and falling on a discarded flier outside the Fishbowl is akin to the chaos that might ensue following the warning of a fictitious fire. Discarded fliers and publications, the University claims, are a form of unregulated speech that presents an unnecessary threat to people in the area.

The University of Michigan isn’t the first school to extend the "time, place and manner" restriction to its own policies.

Two years ago, the University of Central Florida created what it called "free assembly areas," which were four areas on the university’s campus selected "for the conduct of political activity and other exercises of free speech."

University of Central Florida President John Hitt said in an e-mail to the Foundation for Individual Rights in Education, a campus free speech watchdog group, that the university created the free-speech zones so that large numbers of people could "gather with enhanced sound and conduct rallies without interfering with university business."

Hitt justified the creation of the policy, which barred public organizations or demonstrations anywhere else on the campus, by citing "time, place and manner."

"U.S. courts have long held that speech may lawfully be regulated with regard to time, manner and place," Hitt said in his e-mail to FIRE. "We are confident that we are within our constitutional rights in upholding our policy."

The University of California at San Diego revised its public speech policies in June to define free-speech zones, select areas on campus where public demonstrations would be permitted. The revised policy also mandated that use of the forum take place between 8 a.m. and 10 p.m. and that any assembly with more than 10 participants makes a reservation prior to meeting. The university’s administration also reserved the right "to close or alter the conditions of use of any Designated Public Forum or any portion" of a forum whenever it wanted. If organizers didn’t comply with the university’s policies, they could be kicked off campus and face disciplinary action from university’s chancellor or judicial affairs office.

UC-San Diego administrators also justified the policy revisions by calling them "reasonable time, place and manner" restrictions. But faced with pressure from students and FIRE, the university dropped the changes in February.

The University of Michigan has similar methods of regulating public speech. However "free" speech and expression may seem in open-air areas like the Diag or outside Pierpont Commons, public speech is regulated nearly everywhere on campus. Any group looking to host an event on the Diag or at Pierpont Commons must apply for permission through the Office of Student Activities and Leadership, submitting information about the nature of their event and how much it will cost the organization. In the case of the Diag, policies created by the Office of the Dean of Students mandate that only student groups that are registered with the Michigan Student Assembly or people who are affiliated with a University department can set up tables, use amplifiers or organize a speaking event on the Diag. The University also mandates that events on the Diag can only occur between 8 a.m. and 7 p.m. or nightfall, unless an organization receives approval from the Office of Student Activities and Leadership and pays an $86 overtime charge.

The University is now looking to extend the "time, place and manner" consideration to restrict the distribution of paper materials in University buildings with LSA’s new student publication policy. But free-speech advocates say the University’s claim that littered publications could cause injuries is not narrowly targeted enough to fall under the consideration, since limiting distribution rights would not prevent pre-approved publications from being dropped on the ground.

"The claim that newspapers on the ground are de facto banana peels is ludicrous," said Will Creeley, associate director for legal and public advocacy at FIRE.

What comes up any time a university uses "time, place and manner" to justify a speech code or "free speech zone," Creeley said, is the question of how much regulation is necessary to preserve order without infringing on free speech and expression rights.

"Time, place and manner restrictions have to be constructed in ways that are least restrictive in speech activities as possible," he said. "In this case, LSA’s policy isn’t narrowly targeted and isn’t specific enough to address the claims they’re purported to address."

While discussing the LSA policy last month, Bob Johnston, director of LSA’s facilities and operations, detailed LSA’s plans to consolidate distribution of student publications in racks with multiple shelves like those in the Michigan Union, which hold 20 to 30 publications. Johnston said the nodes would replace the separate racks now used for different publications. He also said if the plan for the publication racks is implemented, it would be likely that publications would only be distributed in three LSA buildings containing publication nodes: the Chemistry Building, the Modern Language Building and Haven Hall. To several legal experts, the plan seemed like an attempt to limit speech similar to the free assembly areas at other universities, except with publications instead of organizing and demonstration.

While "time, place and manner" considerations are the basis for many speech regulation policies on college campuses, the University also uses another interpretation of the First Amendment’s scope in its argument for limiting speech in campus buildings. The University’s lawyers claim that although the University is a public institution, its buildings are private. Assistant General Counsel Maya Kobersy said because University buildings aren’t "clearly open" to all members of the public at all times, they are private and, therefore, are not legally bound to the First Amendment. The University has the power to declare buildings or spaces on campus to be public or private, Kobersy said.

But according to lawyers specializing in First Amendment law, the Constitution’s protection of free speech can’t be disregarded as easily as that.

"I don’t think there can be blanket statements made that these buildings are not public," said Gayle Rosen, a lawyer and board member of the Washtenaw County chapter of the American Civil Liberties Union. "Some buildings might be completely private, but certainly there are some that have public forum areas and common use areas and I believe those would be public spaces. I think it’s a matter of interpretation."

Rosen said areas of University buildings where public expression, like the distribution of publications and fliers, posting of announcements or public speaking, often takes place could legally be considered public forum areas, making them subject to the First Amendment. By arguing that an entire building can be declared private, the University appears as if it is trying to evade its responsibility to uphold the freedom of speech as guaranteed by the First Amendment, Rosen said.

Adam Goldstein, an attorney advocate for the Student Press Law Center, a non-profit organization that provides legal counsel for student journalists, said looking at restrictions on speech in University buildings transcends the argument of whether a building is public or private.

Declaring a building private because of restricted access does not negate the University’s responsibility to uphold the First Amendment for the people who have access to the building, Goldstein said.

"It’s not like (a building) is either open to the public and anything goes or it’s closed and you get no rights," he said. "Wherever the government goes, the Bill of Rights goes with it, and no institution has the ability to suspend the Bill of Rights."

Members of the Board for Student Publications, MSA and various student publications will be meeting with LSA officials in upcoming weeks to discuss the distribution policy. It’s unclear how much of the policy will be changed or if the policy will be scrapped altogether. Johnston emphasized that the LSA policy was in no way created as a means to monitor or censor the content of student publications on campus. However, sincere as Johnston may be, LSA’s distribution policy, as Creeley pointed out, walks a fine line between content-neutral restriction and censorship.

"While the policy might technically pass constitutional muster, a highly debatable presumption, its implementation would nonetheless be a worrisome development at a university that not only is bound by the First Amendment, but also boasts of ‘an especially strong commitment to preserve and protect freedom of thought and expression’ in its Fundamental Tenets of Membership in the University Community," Creely said in an e-mail interview with The Michigan Daily last month.

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Schools: University of Michigan – Ann Arbor