Plain talk about free speech

January 16, 2008

It must have seemed like a good idea at the time-making sure that people who wished to spontaneously grab a soapbox and publicly announce their views on the campus of Winston-Salem State University (WSSU) do so in an appropriate fashion.

But by declaring a campus "free speech zone," which limits speakers to one small area of campus, the WSSU Board of Trustees stepped right into one of the most controversial issues in American higher education. Crafting effective speech regulations that do not infringe on the rights of the regulated today requires hair-splitting attention to legal precedents and language. Recently, Fayetteville State University changed its speech codes due to pressure from the Foundation for Individual Rights in Education (FIRE), a free speech advocacy group, and the Pope Center for Higher Education Policy. In 2005, UNC-Greensboro faced a controversy similar to WSSU’s and did away with its free speech zones entirely.

Once Winston-Salem’s policy became known, the criticism came hard and fast. The Winston-Salem Journal wrote a very critical editorial, suggesting that the entire campus "should be a refuge for free speech." Shortly thereafter, Samantha Harris, FIRE’s director of legal and public advocacy, joined in with a letter to WSSU Chancellor Donald Reaves pointing out several areas of concern. In response to these objections, WSSU is currently revising the policy. The regulations are in place until the policy can be replaced at the next Board of Trustees meeting in March, according to Reaves.

Because there have been many attempts to limit the legal right of students and others to speak freely on campuses, often for political reasons, observers of higher education tend to be suspicious of all regulations that limit speech in any way. Winston-Salem State’s original policy, however, had no explicit restriction on the content of speech, merely on the location. In fact, the policy tacitly made the right to voice one’s views on campus part of the official regulations, as a by-product of mandating that such speech occur in a designated area.

Reaves expressed surprise that the policy change caused such an uproar, and he said there was no attempt to limit the content of speech. He said that the policy was merely intended to create an orderly process directing those who wish to communicate their views to large groups of random people to "one of the places where they would get the maximum exposure." He added that the school wanted to ensure the speakers did not interfere with other campus activities. The area designated as the free speech zone is the Thompson Center Breezeway, bounded by the student services building, the library, and a cluster of dormitories.

FIRE objected to the policy on three grounds. The first revolved around the fact that the breezeway area is a very small portion of the entire campus. Federal court decisions have stated that free speech regulations are constitutionally permissible, so long as there are "reasonable time, place and manner" constraints. FIRE suggested that "[T]here is nothing ‘reasonable’ about transforming the vast majority of the university’s property – indeed, public property – into a ‘censorship area.’"

While the breezeway is only a small portion of the campus, it is also centrally located with some of the heaviest foot traffic on campus. Designating this as the area where speakers can attempt to attract an audience supports Chancellor Reaves’ contention that he wished to offer speakers the most potential exposure.

The second of FIRE’s objections is that the policy is too vague. Much of the language of the original policy appears to be confusing; it first states that "[T]he University permits assemblies and public addresses by University, Student, and Non-University groups at the Thompson Center Breezeway only," but then adds that groups can apply for permits from the Director of Student Activities to hold public addresses elsewhere on campus.

FIRE also expressed concern that the speech zone regulations would inhibit the ability of students to conduct any "spontaneous responses to unfolding events." This is a legitimate concern. Yet the administration should have the ability to prevent disruptions of nearby classes, as the shouting and cheering at such a gathering is likely to cause. If a "spontaneous response" is of such importance that it demands free speech guarantees, it will likely survive moving to a more appropriate area.

WSSU’s free speech zone policy has two other areas of potential concern not mentioned by FIRE or the Journal. The first concerns the policy’s Section 3.3.a, which states, "University officials reserve the right immediately to terminate any use of University facilities if, in the judgment of those officials, continuation of such use will result in: (a) danger to participants or others."

While this regulation appears to be completely sensible, it could result in the denial of free speech. Suppose that somebody expressed an unpopular viewpoint that inflamed some segment of the student population. An implied threat of violence against the speaker could enable the administration to silence the speaker. An explicit declaration that physical intimidation would not be grounds for removal of a controversial speaker would remove this possibility.

The college could also make the policy more supportive of free speech if it were to differentiate between public and private speech. Public speech could be defined to include planned assemblies and situations where a speaker attempts to interest random individuals in his views. Speech directed at specific individuals, but not during organized assemblages, would be considered private speech. Private speech could then be explicitly declared legal anywhere on campus, while reasonable boundaries are placed on public speech. Such a policy might actually further free speech rights by making them official on the entire campus, rather than simply be an instrument for imposing limitations. This could also deflect FIRE’s criticism that the campus is transformed into a "censorship area."

Once the difference between public and private speech has been made, the university’s intent might also be made clearer by declaring the Thompson Center Breezeway and other such areas as "public speech zones," rather than "free speech zones."

Thus, it might not be necessary for WSSU to entirely scrap the idea of containing spontaneous public speech to appropriate times and areas. Certainly, the language of the policy should be made clearer. Perhaps adding several other areas at strategic campus locations would be helpful and would address some of FIRE’s concerns. But the idea of placing some limitations on the time and location of public speech is not inherently unreasonable on a college campus where there are concerns for safety, order, and a need for quiet environment to teach and study. WSSU should not be condemned for an attempt to limit speech. Instead, it should instead be praised for accepting the criticism of higher education observers like FIRE and attempting to correct the policy’s flaws.

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Schools: Winston Salem State University