As Torch readers who have followed FIRE’s Stand Up For Speech Litigation Project will be aware, restricting the rights of students to engage in such basic activities as distributing flyers and printed materials can land public institutions in a lot of constitutional trouble. (See: Modesto Junior College. See also: University of Hawaii at Hilo, Citrus College, California State Polytechnic University, Pomona, and Dixie State University.)
Fortunately, thanks to its forthright response to one such controversy, the University of Akron (UA) has avoided joining their ranks.
The case at UA began on August 30, when law student Anthony Palumbo, accompanied by two non-students, stationed himself outside UA’s Student Union to recruit students to his prospective chapter of the group Young Americans for Liberty. Within minutes of setting up outside the Student Union, however, Palumbo was stopped by a campus administrator, who told Palumbo he could not be present because he had not received a permit to engage in “solicitation” on the UA campus, and that such a permit would take three days to obtain. The administrator even suggested the students could be subject to arrest for soliciting on campus without a permit. You can watch a recording of the discussion below:
A few days later, Palumbo met with UA associate general counsel Scott Campbell, who confirmed that UA policy indeed required students to obtain permits even to simply walk through the outdoor areas of campus getting signatures of interested students for his new group. This was a bridge quite a bit too far for FIRE, and we wrote to UA on September 18 to say so.
As we wrote in our letter to UA, the broad permitting requirements demanded by UA of its students—binding even on a single student looking to collect signatures around campus—fell far short of what the Supreme Court has deemed acceptable:
While public universities such as UA may establish reasonable “time, place and manner” restrictions on expression, they must be viewpoint neutral and “narrowly tailored” to “serve a significant governmental interest,” and they must “leave open ample alternative channels for communication.” Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).
UA’s policy fails to meet these requirements. It is unreasonable to require students or student organizations to wait three days for the university to grant permission for expression so simple and non-disruptive as distributing flyers or signing up members to a prospective student organization, as Palumbo sought to do. A generalized concern for order at UA is neither specific enough nor significant enough to justify such a broad restriction of student speech. Indeed, a permit requirement for a small group of leafleters and petitioners in a public space is not “narrowly tailored” to serve any interest in order, safety, or campus access. Further, this requirement denies students’ ability to use the public outdoor areas of the entire UA campus to communicate their messages, failing to provide the “ample alternative channels” required for a reasonable time, place, and manner restriction to pass constitutional muster.
Not incidentally, we noted that a court had enjoined enforcement of a similar permitting scheme at UA’s Ohio neighbor, the University of Cincinnati.
There were other problems as well, such as the fact that the forms related to obtaining permits for expression were inconsistent with other UA policies, to the potential confusion of both students and the administration; that the waiting periods for permits impermissibly restricted spontaneous expression of the sort common to university campuses; and that UA’s policies regarding campus expression could be read so broadly as to subject essentially all expressive activity to the receipt of a permit.
Fortunately, UA was quick to recognize the deficiencies in its policies, informing FIRE in its October 2 response that it was “working to amend its existing public assembly and free speech policies and procedures” to “remove registration requirements for University students, faculty and other administrators seeking to engage in expressive activities on campus.” Even better, UA informed FIRE that it would suspend enforcement of the current requirements while it updates its policies.
Memo to other universities with speech policies in need of cleaning up: This is how you do it.
We commend UA for taking quick action to fix its speech and assembly policies, and look forward to seeing the revised policies it puts forth. As always, we’re happy to work with universities looking to bring their speech codes fully in line with the First Amendment.
Schools: University of Akron