Policy raises free speech questions

By February 4, 2008

A new policy being developed by the College of Literature, Science and the Arts that would regulate which student organizations and publications can pass out fliers, distribute publications and post informational signs in LSA buildings has come under criticism from legal experts who say the policy could violate students’ free speech rights.

Under the new policy, student organizations and publications would have to be under the oversight of the Board for Student Publicationswhich oversees the Gargoyle humor magazine, the Michiganensian yearbook and The Michigan Dailyor recognized by the Michigan Student Assembly in order to distribute or post student-created print material in an LSA building.

In addition, all student organizations or publications would need to comply with University policies separate from the policies of the Board for Student Publications or the Michigan Student Assembly. The rules prohibit discrimination and harassment, and bar publications from displaying or distributing advertising that promotes the consumption of alcohol or other drugs.

To gain permission to post or distribute student-created fliers, posters or publications, each organization or publication would have to apply with and receive permission from the LSA Facilities and Operations Office.

The policy also says that no print material may be distributed before Sept. 15 and after Apr. 14, which would impact any student organization or publication distributing material during the first two weeks of the fall semester and during the University’s spring and summer semesters.

A majority of the buildings on the University’s central campusincluding Angell, Haven and Mason Halls, the Modern Languages Building and the Chemistry Buildingare LSA buildings, and would be affected if the policy were implemented.

Bob Johnston, director of the LSA Facilities and Operations Office, said the new policy was created in part to limit the amount of loose papers scattered on the floors of LSA buildings. He said students could potentially slip on papers and injure themselves, creating a possible liability for the University.

He also said the policy, which was the product of about two years of discussion with the University’s Office of the General Counsel, was created so the LSA Facilities and Operations Office could tell smaller student publications that they had fair and equal access to distribution.

Johnston said the lack of a saying where student publications without their own racks could distribute their work in LSA buildings meant a lot of publications had difficulties distributing their material or found their work was being accidentally thrown out.

"Our intent is to make sure these publications who aren’t established, who don’t have a venue, are more fairly distributed," Johnston said.

The policy, Johnston said, would also help determine what was really a student-created publication and what wasn’t. He said students often distribute material that isn’t student-created, but rather is advertising for local businesses or realty companies.

"Just because there’s a student involved doesn’t mean that that’s a sanctioned student organization," Johnston said.

That means publications like the Ann Arbor News’ "Food, Fun & Fitness" publication wouldn’t be allowed into any LSA building.

He added that LSA’s Facilities and Operations Office had plans to place centralized rackslike those found in the Michigan Union Undergroundn the Modern Languages Building, the Chemistry Building atrium and the Haven Hall fishbowl to hold up to 30 different publications that don’t already have distribution racks.

Despite concerns that the policy could restrict students’ free speech, Johnston said the policy wasn’t created to censor the content of publications.

"My office isn’t in the business of restricting content, and LSA isn’t in the business of restricting content, either," he said.

But Mike Hiestand, an attorney with the Student Press Law Center, a non-profit organization that provides legal counsel for student journalists, said the policy is dangerously close to infringing on students’ free speech rights guaranteed by the First Amendment.

In many cases, Hiestand said, student publication distribution policies like LSA’s are created to address issues of excessive amounts of papers on building floors.

If LSA can show that the sheer bulk of discarded publications could cause injuries and that the distribution policy would prevent that, then the policy should be legal, he said.

"But often times what we see is that they often stretch this power to keep people safe in a way that doesn’t involve safety, but is really trying to keep publications out," Hiestand said.

Maya Kobersy, an attorney in the Office of the General Counsel at the University who reviewed and edited the policy, said it didn’t impinge on students’ free speech rights because it falls under the "time, place and manner" consideration of the First Amendment, which allows for content-neutral restrictions on certain kinds of speech.

Kobersy said the policy mandates that a student organization or publication must be either overseen by the Board for Student Publications or recognized by MSA in order to ensure every publication distributed in an LSA building "is really a student organization."

Thus, under the policy, it would be the Board for Student Publications or MSAnot the LSA Facilities and Operations Officethat would oversee student organizations and publications and make sure organizations and publications were following University policies, she said.

Kobersy said none of policies that student organizations or publications must adhere to involve content control, but instead make sure that publications aren’t recklessly distributed in buildings in a way that could disrupt the classroom setting or clutter certain areas.

Will Creeley, the associate director for legal and public advocacy at the Foundation for Individual Rights in Education, a campus free speech watchdog group, said in an e-mail message that the amount of control the policy would have over the distribution of student publications "goes to far greater lengths" than at other universities.

Creeley cited the policy’s application process, limitation on distribution opportunities per student group each semester, regulation of display racks, prohibition against distribution at certain times of year, and possibility of judicial sanction by the Campus Student Judiciary for policy violations as aspects of the policy that are rarely seen at other colleges or universities.

"As proposed, the policy would subject student publications to an arbitrary and opaque application process, allowing administrators entirely too much discretion to control what publications are allowed to reach the student body," Creeley said.

Andrew Grossman, the editor in chief of The Michigan Daily, said he was troubled by a clause in the policy that restricts certain kinds of content, like depictions of consumption of alcohol or other drugs, because those kinds of content have nothing to do with students’ safety.

"The University appears to be trying to keep out certain types of content under the guise of safety," Grossman said.

He also said the policy’s restrictions on when publications can distribute would pose serious problems for the Daily, which begins publishing on the first day of classes and also publishes a weekly magazine in the summer.

Grossman said he would be reluctant to support any policy that restricts the rights of campus publications to distribute.

Grossman, Office of Student Publications General Manager Sam Offen and other members of the Board for Student Publications will meet with representatives from the LSA Facilities and Operations Office Wednesday to discuss the policy.

The University of Iowa has a similar policy which limits where student publications can be distributed on campus, said Pete Recker, circulation manager for the Daily Iowan newspaper.

Indiana University, on the other hand, has no policy regulating student publication distribution, said Rachel Knoble, circulation manager at the Indiana Daily Student newspaper.

One issue brought to light with the creation of the distribution policy is whether LSA buildings are public buildings that must comply with the First Amendment or are private buildings that aren’t subject to free speech laws.

Although the University is a public institution, Kobersy said the University has the power to say that certain buildings or spaces on campus aren’t public.

Only if a University building or space is "clearly open" to members of the public, like the Diag, will the University deem it a public space, Kobersy said.

Even then, she said, the University has the right to impose certain "time, place and manner" regulations on those spaces.

For example, the Diag can only be used by MSA-recognized student organizations or groups affiliated with a University department between 8 a.m. and 7 p.m., and loud speakers may not be used for events between 12 and 1 p.m.

But an LSA building like Haven Hallwhich, on the first floor, is frequently used to display or distribute student fliers, posters and publicationsisn’t a public building because it isn’t open to public all the time, Kobersy said.

Hiestand disagreed, saying the University cannot designate an entire building as "public" or not.

What a court will look for, he said, is if there are certain areas in a building, like a public area or student commons, that allow for student-based expressions of speech. He said he thought those areas would be considered "public," meaning the University couldn’t restrict free speech in those areas.

But whether a building is public or not, the creation of a policy that regulates students’ free speech at all contradicts what the University stands for, Creeley said.

Implementation of the policy would be "a worrisome development at a university that not only is bound by the First Amendment, but also boasts of ‘an especially strong commitment to preserve and protect freedom of thought and expression’ in its Fundamental Tenets of Membership in the University Community," he said.

Schools: University of Michigan – Ann Arbor