SFSU Policy Change Just Another in a Long Line of Free Speech Zone Reversals

By April 7, 2010

Sam reported last week that San Francisco State University (SFSU) has revised its "Use of Buildings and Grounds" policy, which previously limited campus demonstrations and other expressive activities, such as distributing literature, to specified free speech zones. SFSU’s revised policy allows students to distribute literature anywhere in the university’s outdoor spaces so long as pedestrian traffic is unimpeded. As for rallies and demonstrations, the revised policy does not specify any free speech zones, and allows for spontaneous events "occasioned by news or issues coming into public knowledge" as an exception to its requirement for advanced reservation for outdoor student events.

The policy change is certainly a welcome move at a university that has overseen both an inexcusable investigation into a student group’s protected on-campus demonstration as well as a precedent-setting defeat in court over several of its speech codes. Moreover, it’s just another in a long line of reversals of university free speech zone policies that we have seen over the years, both by way of court order and voluntary policy change.

Torch readers hopefully remember FIRE’s involvement in the challenge to a free speech zone policy at Texas Tech University, a proud installment in our Speech Code Litigation Project. At Texas Tech, university officials somehow felt comfortable restricting the expressive activity of 28,000 students to a single "free speech area," a gazebo measuring approximately twenty feet in diameter; students wishing to use any part of the remainder of campus for expressive activity—whether protests, pamphleteering, or distributing newspapers—were required to seek official approval at least six days in advance, meaning that they could not respond to immediate or still-unfolding news with spontaneous protest events or other expressive activity. Indeed, Texas Tech’s "free speech gazebo," which had to be seen to be truly appreciated, has gone down in FIRE lore as one of the all-time memorable devices for suppressing speech, alongside such luminaries as Michigan State University’s "Power and Control Wheel" and, more recently, the notorious "free speech patio" at Southwestern College in California.

In a lawsuit coordinated by FIRE, Texas Tech students successfully challenged the free speech zone policy, as well as an overbroad speech code banning "insults," "ridicule," and "personal attacks." A federal judge in the Northern District of Texas agreed with the students that the free speech zone policy unduly restricted expression on campus, ruling that even the university’s policy changes, instituted after the suit had been filed to open up acres of additional free speech areas, were insufficient. Rather, the court held that the policy must be interpreted to allow free speech for students on "park areas, sidewalks, streets, or other similar common areas…irrespective of whether the University has so designated them or not." The decision, Roberts v. Haragan, 346 F. Supp. 2d 853 (N.D. Tex. 2004), now stands as an important precedent regarding the legality of both free speech zones and university speech codes.

Unfortunately for some, not all colleges and universities got the memo on Roberts—not even, amazingly, some schools in the same federal district. Despite being in the same federal judicial district as Texas Tech—and thus bound by Roberts v. Haragan‘s precedent—Tarrant County College (TCC) in Texas repeatedly denied students the right to participate in national "empty holster" protests, which seek to bring attention to state laws and college policies prohibiting concealed carry on campus, through large swaths of campus. Instead, TCC told the students that they could not wear the holsters anywhere on campus and that they had to limit any protest activities to the college’s free speech zones, such as the approximately twelve-foot circle constituting the free speech zone on TCC’s South Campus. (TCC was the only public institution in the country to ban the "empty holster" protest.)

Once again, a federal district court in the Northern District of Texas invalidated the regulations in a lawsuit coordinated by FIRE. In a ruling handed down last month, the court held that TCC’s reliance on a policy prohibiting "disruptive activities" to quarantine the protest was untenable and that the students had the right to engage in the symbolic form of protest in public areas of campus, hallways of academic buildings, and even classrooms. As part of the decision, the court also struck down a "cosponsorship" policy forbidding students and faculty from holding events on campus in association with any "off-campus person or organization." This policy, which was instituted after the commencement of litigation and seemed to come plainly in response to the student protesters’ association with the national organization Students for Concealed Carry on Campus, led the court to opine that it "cannot imagine how the provision could have been written more broadly." Ultimately, the TCC students had their free speech rights vindicated, and we hope that two direct free speech zone precedents in northern Texas are enough to get the point across to schools in the area, if not to other institutions across the country. In fact, perhaps TCC should have followed the lead of nearby University of North Texas, which eliminated its free speech zones last year after receiving a letter from FIRE and declared its campus in its entirety to be open to free discourse.

Valdosta State University (VSU) in Georgia endured its own reversal of a free speech zone policy, in this case by voluntary revision rather than via court order. The university, forever to be associated with its deplorable treatment of student Hayden Barnes, maintained a policy limiting the free speech of all "persons wishing to speak on campus" to a single stage on the university’s 168-acre campus. As if that weren’t absurd enough, VSU limited usage of the "free speech stage" to two non-consecutive hours per day, and only on weekdays. It took three letters from FIRE, a short film, and an advertisement in U.S. News & World Report shaming VSU for its place on FIRE’s Red Alert list—not to mention a change in VSU’s leadership—before the university finally gave in. Rescinding its previous policy, VSU restored freedom of speech to its entire campus, declaring that expressive activity would be "uncensored" and allowed to take place on the campus green without prior reservation or other regulation. The university also announced that the infamous "free speech stage" would host additional "public discussion or debate" and would be made available at all hours, without regard to the content of speech. Happily, the policy reversal restored First Amendment rights to VSU’s campus and prompted FIRE to remove the university from our Red Alert list.

Finally, it is worth revisiting one of FIRE’s earliest efforts as part of the Speech Code Litigation Project: Citrus College in California. At Citrus College, students’ expressive activities were limited to three small, remote areas of campus, rendering the vast majority of campus a censorship zone. Worse, under Citrus policy students speaking outside of the designated free speech areas chillingly faced the threat of suspension, expulsion, and even arrest. Students were also required to notify the college not only of their intent to use one of the free speech areas, but also of the content of their expression. Lastly, the free speech areas were only available on weekdays between the hours of 8 am and 6 pm, and use of amplified sound was not allowed. In the face of these numerous restrictions, a Citrus student challenged the college’s policies in a lawsuit coordinated by FIRE. Wisely, Citrus College chose to abandon its policies rather than take the matter to trial, as the college’s Board of Trustees unanimously adopted a resolution revoking the free speech zone policies as well as a policy banning "offensive…expression or language." With that, FIRE had our first victory in the Speech Code Litigation Project.

As these cases and many more demonstrate, free speech zones are a pernicious and still far-too-prevalent threat to freedom of expression on campus. I hope that our record of success in fighting these policies makes schools think twice about their own free speech zones, and that many more come to achieve policy change as San Fransisco State University did rather than suffer the same fate as Tarrant County College.

Schools: San Francisco State University Cases: San Francisco State University: Speech Code Litigation Project