As colleges gear up for the bulk of their students returning to campus over the next month, they’re making adjustments to current policies governing public gatherings and adopting new ones aimed at mitigating the risk of spreading the coronavirus.
Though this is obviously an unprecedented circumstance for these institutions, FIRE’s basic recommendations regarding speech policy still apply: Any regulation on expressive activities put in place to maintain safety must not be so vague and unclear that students are unable to follow it, and must not unreasonably burden free speech.
Unfortunately, far too many existing policies governing expressive activities on campuses are already failing on those two fronts — including a policy at Tennessee State University that we’ve named as FIRE’s Speech Code of the Month for August.
The following provision appears in Tennessee State’s Student Handbook under the heading “Statement of Assurance”:
Tennessee State University assumes the position that dissent, when carried out in the prescribed form (being registered in advance with the Vice President of Student Affairs, in order to ensure that the event is held at an acceptable time and appropriate site), will be protected; on the other hand, disruption in any form, will not be tolerated.
This provision is both unclear and unreasonable.
First, its vague notice requirement leaves readers with more questions than answers. Does it apply to any sort of public expression of “dissent,” regardless of size or format? How far in advance must such dissent be registered? How may the vice president be contacted for this registration? What criteria will be applied to determine whether events are at an “acceptable time and appropriate site”?
I don’t think this “Statement of Assurance” will leave students feeling assured.
Without a clearer explanation of the notice requirement, students are left guessing at how to comport their behavior, and may in some cases abandon their expressive activity entirely in order to avoid risking punishment.
Second, assuming (as the provision suggests) that all expressive activity needs to be registered in advance, this requirement unreasonably burdens public expression.
While universities may establish reasonable “time, place, and manner” restrictions on expression in a public forum, such regulations must be “justified without reference to the content of the regulated speech … [and] narrowly tailored to serve a significant governmental interest,” and “leave open ample alternative channels for communication of the information.” Clark v. Community for Creative Non-Violence (1984). A restriction is narrowly tailored when it does not “burden substantially more speech than is necessary to further the government’s legitimate interests.” Ward v. Rock Against Racism (1989).
Tennessee State’s requirement that all forms of dissent need to be registered in advance is not narrowly tailored, as it burdens a great deal of expressive activity that would not be inherently likely to require prior notice, such as a group of five students handing out political flyers. Instead, the policy should require notice only for events that are expected to attract a large number of attendees, or that require road closures or other similar coordination from the university.
And this prior notice requirement is particularly galling, given that the state of Tennessee adopted legislation banning campus permitting requirements on spontaneous protest in 2017. The university cannot claim compliance with this law when this broad notice requirement is on the books, as the requirement effectively prevents spontaneous dissent.
The fact that universities like Tennessee State have failed to adopt clear and reasonable regulations absent a pandemic does not bode well for new restrictions being adopted.
New regulations must be clear enough for students to follow — especially if colleges are publishing both mandatory rules and permissive guidelines, as the line between the two is often blurred in college policy. The clearer the policy, the more likely students will be able to follow it correctly, a win for students and administrators alike.
New regulations must also be content-neutral and narrowly tailored to serve a significant governmental interest, and must leave open ample alternative channels for communication of the information. For example, if local public health guidelines prevent large gatherings on campus, the university must not shut off the means for expression that remain.
The challenges facing colleges this fall are undeniable; there are already thousands of coronavirus cases linked to campuses. However, universities must not adopt impermissibly vague or unduly restrictive regulations on expression as a result, especially when so many schools already maintain burdensome policies.
One thing that hasn’t changed during these times: FIRE’s Policy Reform team is always available to assist universities with speech code revisions. And if your school adopts a new policy that is suspect, we’d like to hear about it.
If you are a college student or faculty member interested in free speech, consider joining the FIRE Student Network or Faculty Network to connect with a coalition of college students and faculty members dedicated to advancing individual liberties at their institutions.
If you’re concerned about a potential violation of your rights, contact FIRE for more information.