This fall, FIRE is writing a blog series about how schools can reform their problematic speech codes and earn a "green light" rating from FIRE—a distinction currently awarded to just 16 of the more than 400 schools in our Spotlight database, but one we hope to be able to award to many more in the years to come. In this series, we are discussing common problems with campus speech codes, focusing on examples from schools that are just a few small changes away from earning a green light rating.
So far, we have examined how universities restrict speech by mandating "civility," improperly broadening the definition of "harassment," and restricting students’ online expression. Today we look at another common type of campus speech code: policies governing posted materials on campus. The problems with this type of policy can be grouped broadly into two categories: (1) improper restrictions on the content of campus postings; and (2) provisions granting the university administration excessive discretion over campus postings.
Turning to the first category—content-based restrictions—the most common type of restriction concerns posted material relating to drugs and alcohol. Courts in some jurisdictions have held that universities may restrict alcohol advertising or noncommercial expression actually promoting illegal activity—see, for example, this recent ruling from a federal district court in Virginia, upholding a statewide ban on alcohol advertisements in college newspapers. Unfortunately, many university posting policies are so broadly worded that they could easily be applied to political expression relating to alcohol and drugs.
At Furman University, for example, "Reference to alcoholic beverages, illegal drugs, or any other illegal activities in text, graphic or any other form is prohibited." The University of Arizona‘s residence hall posting policy provides that "[p]ostings will not be rejected on the basis of content, but rather any mention of alcohol or drugs, either implied or explicit, will not be approved." Similar policies govern postings at Miami University of Ohio and Scripps College. These policies employ such broad language that they apply, by their plain meaning, not only to postings and advertisements actually promoting illegal activity but also to political speech advocating for reforms such as lowering the drinking age or legalizing marijuana.
Concern over abuse of such policies is more than theoretical. Several years ago, Colorado State University maintained a similar policy prohibiting "any reference to alcoholic beverages or drugs" in the residence halls. That policy was used to prohibit the Campus Libertarians from posting flyers advocating for a Colorado drug reform ballot initiative because the flyers contained an image of a marijuana leaf.
Colorado State has since revised its policy to require only that advertisements not "promote illegal behavior"—and the universities mentioned above should at least do the same. But even that level of restriction can bring problems. Lunch counter protests in the Jim Crow South were against the law, but would today’s universities be comfortable with a rule that bans promoting them (which rules banning the promotion of "illegal behavior" would in fact do)? One wonders.
In a variation on this theme, some universities prohibit postings promoting not only alcohol and drug use, but tobacco use as well. This is the case at Miami University of Ohio, where the student posting policy states that "Signs, posters, and banners encouraging, promoting, or advertising alcoholic beverage or tobacco consumption are prohibited." But unlike alcohol and drug use, tobacco use is legal for the vast majority of college students. So a ban on "promoting tobacco use" amounts to nothing more than the university using the power of censorship to impose its own values on its students. The university thinks smoking is bad, so you, as a student, cannot encourage smoking. (If you don’t yet see why this is problematic, just imagine a public university prohibiting any postings that promote premarital or same-sex sexual activity!)
Other posting policies place broader restrictions on the content of student postings in an attempt to protect other students from offense. Binghamton University‘s policy on "Advertising on Campus," for example, provides that "[a]dvertisements should avoid demeaning, sexist or discriminatory portrayal of individuals." Similarly, the University of Arizona‘s residence hall posting policy states that "material that is degrading to others, either implicitly or explicitly, based on race, gender, religion, social class, or sexual orientation will not be approved." While such policies are obviously well intentioned, they amount to improper viewpoint-based restrictions on student speech. (For example, at the University of Arizona, you can post your views on religion or social class if they are entirely positive, but if anyone might find them "degrading," even implicitly, you are not free to share those beliefs.) As the U.S. Supreme Court wrote in R.A.V. v. St. Paul, 505 U.S. 377 (1992), "the government may not regulate use based on hostility—or favoritism—towards the underlying message expressed."
The second common problem with posting policies is that they give the administration excessive discretion to approve or deny student postings. For example, Furman University’s policy states that "[t]he University retains the right to deny posting of any materials on campus." The University of Arizona‘s residence hall posting policy provides that "[a]ny residence hall student wanting to post materials must obtain the approval of the [relevant administrator], subject to place time, and manner restrictions."
While universities may place reasonable, viewpoint-neutral "time, place, and manner" regulations on student postings—such as requiring that postings may not exceed a certain size or may only be posted for a reasonable period of time—they may not simply grant their administrations unfettered discretion to approve or reject student postings. Ideally, posting policies should not require any prior approval, but at a bare minimum, any policies requiring approval must set forth clear, content-neutral criteria upon which approval will be granted.
Too many universities, including the ones cited here, place inappropriate restrictions on student postings, and could significantly improve the climate for free speech on campus by revising their policies along the lines discussed above. Stay tuned next week for a discussion of policies restricting student protests and demonstrations.