On Saturday, a federal district court ruled that a student organization, Grace Christian Life, was likely to be successful in its First Amendment lawsuit against North Carolina State University, ordering the university to immediately cease enforcing a policy requiring permission to distribute literature on campus. While the court could later vacate the preliminary injunction following trial, it’s likely that the case will either settle before trial or a trial will vindicate the student organization’s claims, making this order a welcome addition to the growing heap of speech codes struck down by courts on First Amendment grounds.
The policy at issue is NC State’s “Non-Commercial Solicitation” policy, which prohibited “any distribution of leaflets, brochures or other written material, or oral speech to a passersby [sic]” without written permission in advance from NC State administrators.
NC State chose to enforce its policy against Grace Christian Life, with administrators’ emails showing that merely handing someone a card was construed as improper “solicitation.” When repeatedly challenged on the policy by Grace Christian Life’s attorneys from the Alliance Defending Freedom (ADF), NC State chose to repeatedly defend the policy. When Grace Christian Life sued, NC State chose to defend the policy before a federal judge.
These were, ultimately, a series of poor choices on NC State’s part. Or, rather, it was the same poor choice, made again and again.
NC State’s argument consisted largely of repeating the refrain that the restriction was a reasonable “time, place, and manner” restriction having nothing to do with content or viewpoint of the would-be speaker. The government can, of course, impose reasonable restrictions on speech which regulate the time, place, or manner of the speech, without regard to its content or views, but continually reciting “time, place, or manner” as a mantra does not make a policy so. (This is a depressingly common mistake, as we’ve noted here before.) More to the point, a university cannot say “you can’t speak ever without permission.” Even if such a policy were reasonable in scope, it cannot then fail to say what the criteria are to be eligible for such a permit.
The First Amendment does not grant government officials “unfettered discretion” to use their own judgment about when to issue a permit. That would allow an administrator to come up with their own varying reasons for granting or denying a permit, thus creating a risk that those requirements will be harder to meet if the administrator dislikes the speaker or her message. And if there are no requirements other than asking for permission, why require a permit at all?
A federal judge agreed, and NC State has been ordered not to enforce the policy—for now, at least.
NC State’s past conduct in drafting, enforcing, and defending this plainly unconstitutional policy would seem to predict that the university will continue to defend the indefensible. FIRE, however, hopes NC State will come to its senses, abandon this policy, and allow its students to speak—without having to ask for a speech pass. In the meantime, this order is a considerable victory for Grace Christian Life and the ADF—and one that benefits all NC State students.