Sometimes, the enforcement of an unconstitutional speech policy can be an eye-opening experience for college administrators, leading to a greater understanding of the need for precise language that appropriately protects speech rights on campus. This appears to be the case at Boise State University (BSU), which late last week formally agreed to work toward revising some of its policies in order to ensure that they comply with the First Amendment and the ideals of higher education.
The impetus for this announcement comes from a dispute that began in May 2014, when the Young Americans for Liberty (YAL) chapter at BSU was saddled with a mandatory $465 security fee for an event featuring gun rights advocate Dick Heller, due to concerns that some non-campus community members might have encouraged attendees to carry firearms. A broad coalition including FIRE, the Idaho Freedom Foundation (IFF), and the ACLU of Idaho wrote to BSU, warning the university that its imposition of the security fee under a policy allowing limitless discretion on the part of administrators violated long-settled First Amendment jurisprudence.
After receiving these letters, BSU did the right thing and returned the security fee to YAL. Now it has taken the further positive step of agreeing to collaborate with IFF and the ACLU (who represent the BSU YAL chapter) to revise several policies identified as constitutionally problematic. In a September 12 letter (PDF), BSU General Counsel Kevin Satterlee provided a promising statement:
The way we treat our facilities and spaces, in classifying them as public or non-public forums and implementing policies for their use, is meant to encourage free expression, only limited by the otherwise legitimate educational, research, and business functions of the University.
Of course, a university may institute policies that are narrowly drawn to protect the legitimate functions of the institution. But those policies must not infringe on any more speech than is necessary to accomplish these goals and cannot leave administrators with unfettered discretion to burden speech based on the message it conveys.
And so, recognizing that it “need[s] to provide [students] with some assurance that policies needing some improvement will not be utilized to chill or otherwise restrict speech protected by the First Amendment to the Constitution,” BSU has taken the additional proactive and laudable step of suspending enforcement of a number of policies identified as infringing on speech rights until replacement policies are implemented. A full list of those policies can be found in Satterlee’s letter (PDF), but they include the security fee provision imposed against YAL, as well as policies covering scheduling grounds use, advertising events, and the use of amplified sound. In addition, BSU agreed to permit non-disruptive speech and literature distribution indoors and provided safeguards for policies allowing charges and costs to be imposed on student organizations, such as itemization, an appeal process, and the guarantee that they will be used only in a content-neutral manner.
While Boise State undoubtedly has much work to do in eliminating all of its speech codes (including one that we recently named as the September 2014 Speech Code of the Month), FIRE commends BSU for taking seriously the concerns about the impact of its policies on the speech rights of the university community. We hope that as the BSU administration reflects on the importance of free speech to the university’s identity and mission, it will revise not only the policies that were the subject of the dispute, but all campus policies that threaten the expressive rights of students and faculty.