As far as FIRE can tell, Constitution Day 2015 went smoothly on college campuses across the country. Students passed out copies of the Constitution and university administrators largely left them alone, even if the distribution occurred outside of the school’s designated, and misnamed, “free speech zone.”
Peter Fricke of Campus Reform reported on two exceptions in an article titled “Free Speech Zones Reluctantly Enforced During Constitution Week.” The videos in the article, however, suggest that the seeming improvement in the attitude of university officials towards students handing out copies of the Constitution may not reflect the realization that stopping such activity in an open area of a public campus violates the First Amendment—only that it’s costly and embarrassing to get caught doing so.
At Lamar University in Texas, an administrator stopped students from the organization Young Americans for Liberty (YAL) from handing out copies of the Constitution outside the student union. Because YAL was not a registered student organization, it could not distribute information. The students as individuals could use the free speech zone but, unfortunately, it was booked. So, the administrator explained: “No free speech today.” But after the students pushed back, she called her supervisor, who had the sense to tell her to allow the students to continue their activity.
At Northern Illinois University, students from another YAL group were in an open area handing out Constitutions when a policeman approached them. Interestingly, the officer’s first question was, “Are you taping this?” (Answer: Yes.) A very careful conversation then followed in which the students were told that the university “preferred” that they express themselves in the free speech zone, called the “Freedom Area,” so “it’s not a big uproar and people get all out of joint.” Therefore, he was “requesting” that they move. He was careful to say that he didn’t know what the consequences might be if they didn’t move but that any “disturbance” could lead to further action. He also mentioned that he was a veteran and had spent 20 years defending principles such as free speech but added, “If you guys could do it over there, it would be greatly appreciated.” In the end, however, we have a constitutional problem: a uniformed police officer requesting that students give up their First Amendment rights and submit to the university’s regulations that quarantine their speech.
Fricke interpreted these incidents as showing that universities are reluctant to enforce their free speech zones. My interpretation is more cynical: I think the universities were reluctant to get caught enforcing their free speech zones.
The Lamar University administrator had no problem trying to shut down the students; her idea of meeting them half way was to waive the sign-up requirements for the free speech zone and give them access to it the next day. Her boss was the one who told her to look the other way. And NIU’s police officer’s “just do me a small favor” routine didn’t change the basic fact that a government official was pressuring students to give up their First Amendment rights.
If university administrators think putting a velvet glove over the iron fist will make free speech zones pass constitutional muster, they’re wrong. If they are embarrassed to enforce such blatantly unconstitutional regulations (and they should be), then the solution is to abolish the rules.
Tiptoeing around enforcing free speech zones doesn’t make a difference from a constitutional point of view. Nor does selective enforcement help; namely, quarantining students to free speech zones only when no one is looking. Simply leaving free speech zones on the books to chill expressive activity and encourage self-censorship does not absolve public universities from respecting the First Amendment. It makes no difference whether university officials enforce free speech zone regulations with reluctance or gusto.
The only sure way to avoid defending a free speech zone in court is not to have one at all.