FIRE Awaits Supreme Court Ruling on Content Neutrality

March 18, 2015

About five years ago, when I was a graduate student at Rensselaer Polytechnic Institute (RPI), I tried to start a student group for nontheistic students (atheists, agnostics, humanists, freethinkers, and so forth) called the Secular Student Alliance (SSA). I quickly discovered that RPI had a policy of denying funding to political and religious student groups (of which they considered SSA one), despite funding all kinds of other student groups.

While RPI is a private institution and thus not legally bound by the First Amendment, RPI’s written policies state that freedom of speech is “essential” to the university and that “the Institute shall not impede or obstruct students in the exercise of their fundamental rights as citizens.” I knew that this promise to respect students’ fundamental rights meant that we could not be discriminated against for our (non-)religion. Thus began my ultimately successful campaign to have SSA funded.

My story is not unique. Other universities, both public and private, maintain similar policies of treating less favorably student groups classified as political or religious, and a case currently before the Supreme Court may determine the fate of such policies. The case is Reed v. Town of Gilbert, and it revolves around the town’s regulation of signs. The town allows signs that it classifies as “political” or “ideological” to be larger, remain up longer, and be placed more densely than signs that it classifies as “Temporary Directional Signs Relating to a Qualifying Event.” Per the town, the signs at issue in the case, put up by members of a small church to invite and direct people to its weekly worship services, fall into the latter category.

The basic legal dispute in Reed is over whether the town’s regulations are content-based (and therefore subject to greater First Amendment scrutiny), and, by extension, what it means for a regulation to be content-based. The town contends that a regulation is only content-based if it differentiates between speech based on the particular viewpoints or ideas expressed. Clyde Reed (the pastor of the church in question, and the petitioner in the case) contends that a regulation is content-based if the speech’s “differential treatment is determined based on what the sign says.” I agree.

The problem with the town’s argument is that it would allow all kinds of governmental entities, including public universities, to decide which categories of speech are more or less valuable, and make resources available accordingly. This would allow public universities to disfavor categories of speech that are likely to be controversial or speakers who are likely to offend others—arguably the most important speech on a college campus. As Justice Scalia put it at oral argument:

So we’re—we’re supposed to sit here and say, oh, political speech is the most valuable and you can allow that, but ideological speech comes in a close second, and then what? Then directional speech or whatever else? I don’t want to do that. I don’t think you should want any governmental official, even—even a judge, to do stuff like that.

Whatever ruling the Supreme Court hands down will have significant implications for a range of campus free speech issues. For example, lower courts are divided on whether outdoor spaces on public university campuses amount to traditional or designated public forums. If they do, any content-based restriction on their use is subject to strict scrutiny and would very likely be struck down. But if the Court holds that classifications such as “political,” “ideological,” and “religious” are not content-based, administrators may use the ruling to justify excluding speech in those categories.

In Rosenberger v. Rector and Visitors of the University of Virginia (1995), the Supreme Court addressed a rule like the one I fought at RPI, which excluded otherwise eligible religious student organizations from receiving student activity fee funds. The Supreme Court held that the university’s rule violated the free speech clause because it was content-based in a particularly egregious way, called viewpoint discrimination. But if the Court rules in Reed that labelling expression “religious” is not a content-based classification, such rules may become the norm on university campuses. A number of universities, most prominently the California State University System, are already using “all-comers” policies to exclude religious student organizations from campus; surely they will jump on an opportunity to target religious student groups directly.

Whatever the Supreme Court decides in Reed, it has the potential to significantly impact the scope of freedom of speech both on and off campus. FIRE will be watching closely.

Frank Bellamy is working with FIRE through the University of Virginia School of Law’s Robert F. Kennedy ’51 Public Service Fellowship.

Schools:  Rensselaer Polytechnic Institute