Free speech has its limits at universities

July 13, 2003

By Tracie Dungan at Arkansas Democrat Gazette

The outside ministers would come to campus, stand in front of the student center and do more than just preach.

Jack Gillean recalls the visitors making appearances at the University of Central Arkansas at Conway for years until the campus created a designated free speech area last November. “Usually it was during finals week,” said Gillean, UCA’s vice president for administration.

During their visits, the ministers “would stand in front of the university and proselytize,” he said.

Sometimes, students who happened by would find themselves on the receiving end of insults. The preachers would hurl names — “whores,” ” fornicators” and “masturbators” — at students they didn’t know. “They were using very strong language,” Gillean said.

Officials determined they needed a free speech zone so that students could choose to avoid the speakers as they walked near the student center.

In so doing, UCA joined other colleges in Arkansas and nationwide who have imposed speech limitations. Educators typically cite a desire to achieve a balance: fostering a healthy exchange of ideas without disrupting academic pursuits. In designing their policies, the colleges and universities navigated a maze of complex court rulings that have given them the legal ability to put some limitations on speech activities. But the resulting policies — such as those governing free speech zones, leafleting, and reservation of campus spaces — are being challenged through lawsuits by, and criticisms from, rights groups.

SUING FOR FREE SPEECH In March, the American Civil Liberties Union sued the University of Maryland at College Park on behalf of students after it limited free speech to one campus amphitheater and restricted where students could distribute literature. In April, the nonprofit, Philadelphia-based Foundation for Individual Rights in Education began filing a series of lawsuits against colleges.

FIRE declared it would campaign against campus speech codes, speech zones and other free speech restrictions by filing suit in every federal court district and circuit in the country. So far, it has challenged Texas Tech’s “Free Speech Gazebo” and speech code, as well as speech codes at Shippensburg University in Pennsylvania and Citrus College in California.

The group’s director of legal and public advocacy, Greg Lukianoff, wouldn’t say last week what schools are on FIRE’s radar screen, just that it’s poring over campus policies across the nation.

Whether a particular school’s policies go beyond the legitimate “time, place and manner” requirements that campuses can legally impose depends on the policy, Lukianoff said.

A requirement of advance notice for large events is potentially troublesome to his group. “Honestly, it depends on how it’s written,” Lukianoff said. “If they define a large group as more than 25 people, that would raise some eyebrows.”

Rules that require students to have insurance coverage before staging an event are of particular concern, he said, because student groups and individuals most likely wouldn’t have it. “We do find it more outrageous when you say that all free speech should take place on a tiny portion of campus,” Lukianoff said. The group’s literature defines speech codes as bans on “indecent” or “offensive” language; vague definitions in sexual harassment policies; and restrictions on written expression, such as administration approval of posters or fliers and bans on publication of “discriminatory” material.

ZONING FREE SPEECH Officials at UCA and the rest of the state’s four largest campuses contend the free speech zones and other such policies are necessary for safety reasons and to ensure academics aren’t disrupted. They also cite a need to prevent property damage and to plan ahead to manage foot and vehicle traffic for large gatherings.

Arkansas State University at Jonesboro and the University of Arkansas at Little Rock have established free speech areas on their campuses, among other restrictions.

UALR’s enrollment is about 11,500 students. ASU enrolls roughly 10,500.

The University of Arkansas at Fayetteville hasn’t created speech zones or speech codes, officials there said.

But the campus of roughly 16,000 students has a facilitiesuse policy that includes a requirement of three days’ notice to reserve outdoor spaces in some instances. The policy also says the university may require those who wish to reserve space to obtain insurance coverage “if warranted by the nature of the event.”

The Fayetteville campus policy, dated April 1993, was revised two years ago in part to give its students, faculty and staff priority in using public spaces. “Under our old policy, I think outside entities could tie up facilities so that students couldn’t use them,” said UA Associate General Counsel Scott Varady, who recalled the policy revision was an effort that began as early as 1996.

In August 2001, a UA student group protested the facilities-use revision.

Some on campus thought that frequent campus speaking visits that year by a preacher named Gary “Moses” Bowman had prompted the policy change, but UA administrators said that was not the case.

Bowman’s speeches occasionally had turned to heckling matches with some students. But students with the Campus Democracy Collective at the time defended his right to speak, if not his rhetoric, at one of the group’s regular “Free Speech Friday” open mike rallies.

The UA policy revision, still in effect, allows outside speakers to use the campus up to 15 times a year — five times each during the fall, spring and summer — and after that they must get a UA student, faculty, staff or group to sponsor them, Varady said.

On March 5, UA’s Progressive Student Association used the Fayetteville campus’s facilitiesuse policy to reserve the plaza between the student union and Mullins Library for an antiwar rally that drew at least 500 people.

At the Conway campus, neither students nor the general public are required to reserve the free speech zone, which Gillean described as adjacent to the southwest corner of Ferguson Chapel and in sight of the student center. “It’s available 24 hours a day on a first-come, first-served basis,” he said, adding that UCA’s legal counsel, Tom Courtway, researched the law before officials arrived at their solution. “We didn’t want to have in place what they would call a ‘prior restraint,’ because a university is a place where, of course, you wouldn’t want to limit that,” Gillean said. “We wanted to give people the appropriate ability to exercise their First Amendment right… but put appropriate limitations on it as well that were constitutional.” When students held an antiwar rally this spring, UCA’s free speech area accommodated about 80 students who participated from among the roughly 8,500 enrolled, Gillean said.

UALR UALR’s director of communications, Amy O. Barnes, said the urban campus’s First Amendment Freedoms of Speech, Assembly and Expression policy counts those freedoms among the university’s highest goals and says the campus welcomes all points of view “since free expression is a basic tenet of the academic arena.” But it also states that all campuses “have an inherent authority to maintain order as well as freedom.” “The UALR campus is not public in the sense of parks or streets and thus not open for expression of free speech and assembly by the general public and students at all times and places,” the policy reads. Those freedoms are protected so long as they don’t disrupt campus functions, interfere with others ’ rights, or lead to property destruction.

Free speech may be limited if “imposed on semi-captive audiences or offensively on unwilling third parties, or is within the laws of obscenity or incitement to action.”

The policy goes on to permit exercise of First Amendment rights on campus “at specific times and in designated areas,” which include the west-end Donaghey Student Center Mall and the Administration South and North Building Malls. “Other outdoordesignated areas” can be requested; the campus requires 48 hours’ advance notice.

In October 1999, the UALR student handbook carried a UA System policy limiting political activity on campuses that came under attack by a free speech advocacy group, the Freedom Forum, and by the Arkansas Federation of College Republicans. The college GOP group and its chairman — John Mark Huckabee, son of Gov. Mike Huckabee — threatened to sue. The system soon removed language from its facilities-use policy for campuses that had prohibited solicitation of political party membership and support of or opposition to political candidates.

ASU At ASU, a policy designating five “Free Expression Areas” is about 5 years old, said Rick Stripling, vice chancellor for student affairs. Jonesboro campus officials want to allow freedom of speech, he said, “but we want people to do that in some orderly fashion that doesn’t incite a riot.” ASU’s free speech areas differ from the one at UCA in that the Jonesboro campus asks users to reserve the space. “We don’t screen their speeches or anything,” Stripling said. The ASU policy lists a lawn near an arch by Wilson Hall as a primary designated zone for speeches and demonstrations, and says that streets and sidewalks can be used for marches. All this requires 72 hours’ notice, and weekday hours are listed as general usage times. “Such opportunities must be provided on an equal basis and adhere to the basic principle that the university will remain neutral as to the content of any public demonstration,” the policy says. “In order to achieve this objective, while at the same time ensuring that the institution fulfills its educational mission, the university has the responsibility to regulate the time, place and manner of expression.”

The policy also lists eight areas, including the Free Expression Area, as places where noncommercial fliers and other literature can be distributed to individuals.

External groups that use ASU outdoor spaces “tend to be religious in nature,” Stripling said. These groups lean toward places that allow for open public forums, and sometimes bring their own microphones.

ASU officials just make sure the sound level doesn’t disrupt classes.

But Stripling said outside groups didn’t prompt the campus to create the free speech areas.

In fact, he said, speakers have harassed students both before and after the zones were designated. ASU officials treat this as free speech unless the speaker triggers what Stripling called the “fighting words” law; this means once the speaker targets a specific individual for insult, officials ask the person to leave. KEEPING UP WITH THE LAW

An expert on constitutional law at the Fayetteville campus, Mark Killenbeck, said that nationally, case law gives universities some options for how broadly they can open their campuses to speech, but once they choose a path they must be consistent in how they treat different groups.

One doctrine that comes into play is the forum doctrine, said Killenbeck, UA’s Wylie H. Davis Professor of Law. That means certain types of public properties, including universities, don’t have to open themselves up to free speech.

Historically, universities have done so but they are under no obligation, he said, since they have every right to preserve their facilities for educational purposes. “If a university does open its property up to speech, it can still regulate the time, place and manner of that speech,” Killenbeck said, and that’s where the recent legal challenges come in. “What these quarrels are, are quarrels over those parameters.”

Killenbeck and Rita Sklar, executive director of the ACLU of Arkansas, agreed that one thing consistently holds true: The issue has many complicated variables, which means determining if a campus is complying with the law requires a case-by-case study.

Killenbeck and Sklar said the schools have to ensure they’re not making decisions based on what the groups plan to say when it comes to speech zones and codes. “Their codes have to be content-neutral,” Sklar said. “They can’t have one code for the Young Nazis and another for the Christian Athletes Association.”

If a university were to decide on no speech, that could pose its own problems, Killenbeck said. “If you say no speech, then it means no university speech either,” he said. “This is the double-edged sword: If you’re going to open up your campus to speech, then you cannot discriminate,” Killenbeck said.

While the courts have recognized that certain overriding concerns such as traffic flow can override free speech in some instances, Sklar said, people sometimes seem to forget the freedoms on which the country was founded. “I do think that schools have gone overboard in restricting speech,” she said, meaning universities locally and nationally. “There is too much of an emphasis on tidiness, and peace and quiet.”

As for speech codes in the nation’s universities, particular those that ban “hate” speech, Sklar said the courts have looked less kindly on “fighting words” directed at an individual than at similar speech delivered at a podium.

Hate speech is only a symptom, and not the problem itself, she added. “Certainly we don’t like hateful speech,” Sklar said. “But we think the answer to hate speech is more speech, and that is speaking out ag


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Schools: Arkansas State University University of Central Arkansas