Free Speech and Student Government Elections

August 15, 2007

Every student, especially at large colleges and universities, knows when it is student government election season. Every bulletin board is cluttered with countless campaign flyers, student election workers clad in brightly colored t-shirts loudly proclaim their support for their favorite candidate, and sidewalks everywhere are chalked with campaign slogans. At my alma mater, Penn State, student elections had a tendency to be the most active time of year for student expression, and the same is true at many other universities and colleges. In most observers’ eyes, student elections are resolved without major complications. But what happens when there is a major controversy during an election, especially one involving free speech? What free speech rights do students at public universities enjoy, especially when the controversy is entwined with an election? Up until recently, there have been only a handful of federal cases directly addressing this issue. But one recent case may provide some more insight into the free speech rights of student government candidates.

In Flint v. Dennison, 488 F.3d 816 (9th Cir. 2007), a student at the University of Montana was campaigning for a student senator position. During the course of his campaign he exceeded the school’s spending limit of $100 for campaign costs. Although the student won the election, he was later denied the position because of the campaign violation. In response, the student filed a federal lawsuit seeking to invalidate the denial claiming it violated his free speech rights. Ultimately, the case made it to the 9th Circuit Court of Appeals. The court held that student elections at the University of Montana were a limited public forum, meaning that student candidates could constitutionally be subjected to reasonable time, place, and manner restrictions as long as those regulations were viewpoint neutral. The court went on to rule that the spending cap was constitutional because it was viewpoint neutral and a reasonable restriction. Flint at 836.

Although the student lost his case, the ruling did emphasize one very important point—there are limits to the power of a university when it comes to student elections—at least if, as in this case, the election constitutes a limited public forum (as most are likely to, under the court’s analysis). Two of these limits are important:

Viewpoint Neutrality

The court held that any election regulation which forbids or favors certain viewpoints would be held unconstitutional. Flint at 833. A rule that would forbid a student candidate from criticizing the administration or give extra benefits to a candidate willing to sign something like a “pledge to advocate for more state funding” would most likely be unconstitutional. This may also protect students who engage in controversial speech that runs counter to the campus orthodoxy. For instance, under this ruling, it might be unconstitutional for student election officials to sanction a candidate for criticizing the university because of its labor practices.

Reasonable Time, Place, and Manner Restrictions

The court also ruled that election regulations must at least be reasonable. Flint at 834. This standard is rather ambiguous, but it does highlight the fact that universities do not have absolute power to regulate student elections. It is impossible to tell what restrictions a court might ultimately find reasonable or unreasonable. For example, a regulation that restricted student candidates to only posting a total of 300 campaign flyers on a campus of 40,000 students might be considered unreasonable by a court. On the other hand, a regulation requiring each student candidate to only place one flyer on each public bulletin board (of which there might be less than 300) might be considered reasonable. Likewise, a rule forbidding students from meeting with student organizations could be construed to be unreasonable, while a rule restricting candidates from addressing students during classes might be reasonable.

Because of the lack of litigation involving student elections and free speech, it is next to impossible to predict how a court will respond to a certain situation. But at least in the 9th Circuit, students are likely to enjoy at least some free speech rights when it comes to campaigning for student elected offices.