On Jan. 24, students from Black Hills State University’s chapter of Young Americans for Liberty took to the campus sidewalks to recruit students and survey their classmates about the Second Amendment. As they stood outside in an open area of the South Dakota campus, one YAL member donned a foam sandwich board display that caught the eye of at least one passing faculty member, who approached the students and snapped a photo.
As captured on video reviewed by FIRE, Director of Public Safety Phil Pesheck appears to approach the group members and orders them to stop speaking to other students because they hadn’t filled out a form three days in advance — a form he first described as absolutely mandatory but later admitted was “just an administrative formality.” Pesheck insisted this missing form was required to use the campus grounds for any expressive activity, even by a registered student group. When the students asked for more information about the form and request procedure, Pesheck grew irate and claimed that university policy gave him the authority to ask anyone whose messages the university doesn’t “like,” and who didn’t fill out the form, to leave campus immediately:
If we had somebody else that came that we really didn’t like what their message was, this gives us the authority to ask them to leave…. Do you want me to actually fucking read it?
When one of the students asked what would happen if they didn’t leave, Pesheck threatened that the university would call the police and have them all arrested for trespassing.
The YAL members went to BHSU President Laurie S. Nichols shortly after Pesheck gave them the boot, asking for clarification on exactly what kinds of “free speech” this public university — bound by the First Amendment and its own policies — actually protects. Nichols assured the students that she or Pesheck would look into the matter and follow up if there had been a misunderstanding.
It came as no surprise, then, that Pesheck was forced to pick up the phone and dial YAL’s chapter president to apologize, confirming that YAL, and other student groups, may indeed recruit in the outdoor areas of campus without prior permission — or any other “administrative formalities.” Pesheck’s apology and confirmation that his future enforcement of BHSU’s policies will comply with the First Amendment is a start, but one campus safety officer’s apology cannot erase this serious and potentially ongoing violation of students’ expressive rights.
And the problem might not stop with Pesheck, either. His expletive-filled and all-around indefensible response to students engaged in basic expressive conduct casts serious doubt on whether the rest of BHSU’s administration and staff, including its security officers policing campus, are properly trained on basic First Amendment principles.
FIRE wrote BHSU today to remind the university that both its own policy and the First Amendment unquestionably allow students to express a variety of views on campus — even those that administrators may find controversial.
In 2021, FIRE’s Policy Reform team worked with another YAL student to recommend changes to BHSU’s policies to allow spontaneous expression on university grounds. That constitutionally sound policy remains in place and is likely why Pesheck quickly apologized. However, policies are only as good as their enforcement, and apparently at BHSU, some staffers are not even reading the rules they’re charged with administering.
Spontaneous expression is no less protected than planned protests and scheduled speeches. BHSU’s apparent requirement that students submit an expressive activity request form three days in advance of expressing themselves in the open areas of a public university campus violates the First Amendment by restricting and suppressing spontaneous speech.
“I’m very grateful to FIRE for their support of our chapter here at Black Hills State and our right to free speech, and I look forward to the administration and its employees being better trained on free speech issues.” — YAL President Kyle A. Benjamin
FIRE obtained a copy of the expressive activity request form Pesheck presented to the students, and is seriously concerned by its inclusion of a statement which attempts to reserve to the university the right to freely stomp on the free speech rights of anyone they find “objectionable.” BHSU’s ill-conceived free speech permission slip ends with the ominous threat that the university “reserves the right to eject any objectionable person or persons from the premises upon the exercise of authority through any agent or police personnel.” The form’s broad and open-ended carve-out, purporting to give the university the right to silence anyone with views they dislike, flies in the face of the constitutional rights of students and faculty on a public university campus where citizens have broad free speech rights.
FIRE calls on BHSU to properly train its staff and administration on the robust free speech protections that exist on campus to ensure this type of censorship does not happen again. (And maybe stop using a form that goes beyond what the written policy says, in a way that’s blatantly unconstitutional?)
Administrators wielding government power on a state university campus have to understand the limits placed on that authority by the First Amendment.
And yes, that means they have to “actually fucking read it.”
We're joined by First Amendment attorney Marc Randazza and British journalist Brendan O'Neill to discuss the state of free speech in the United States and Europe. Randazza is a First Amendment attorney and the managing partner at Randazza...