Sometimes, no matter how much FIRE warns it in advance, it can take an ugly incident for a university to fully grasp the problems that arise from policies that unduly inhibit freedom of expression on campus. And FIRE has repeatedly warned colleges and universities that advance notice and permitting requirements for outdoor demonstrations, rallies, and other expressive activity can present an unacceptable—and at public universities, unconstitutional—obstacle to the free exchange of ideas that the campus setting is supposed to incubate.
Take, for example, a 2013 incident at the University of Alabama (UA), where a pro-choice student group was threatened with arrest if members did not stop handing out literature in response to a pro-life group’s “Genocide Awareness Project” event, because they did not have a grounds use permit. After applying for a permit, the pro-choice group was informed that the permit would not be approved in time, as the applicable policy required permit applications to be submitted 10 working days in advance. FIRE wrote to UA, noting the absurd result: Students could not express themselves in a timely fashion on current events, nor could they respond to other speech with their own counter-speech. Unfortunately, while UA agreed to make some policy revisions, the policy remains inadequate.
A similar incident occurred at Cornell University, where I earned my law degree. In November 2012, the Cornell chapter of Students for Justice in Palestine (SJP) conducted a rally in solidarity with the people of Gaza. Under the impression that Cornell policy did not require them to do so, SJP did not fill out a “Use of University Property” form to register its rally. When students in the Cornell Israel Public Affairs Committee (CIPAC) caught wind of SJP’s rally, they quickly registered their own counter-protest. When both groups showed up, using amplified sound, CIPAC requested that Cornell police eject SJP, as only CIPAC had registered their rally in advance—a request that was granted.
Predictably, the campus was soon embroiled in controversy over the state of free speech at Cornell and the protection of spontaneous expression. Investigations conducted by the university itself and by the faculty senate both concluded the incident was spurred by a lack of clarity in Cornell’s policies on expressive activity.
After embarking on a mission to clarify its policies, the University Assembly (UA) passed a March 2014 “Resolution to Clarify Responsible Free Expression in the Campus Code of Conduct,” which sought to enshrine the rights to freedom of expression in the conduct code. But some criticized the apparent discrepancy between the conduct code, which regulates what students may be disciplined for, and the various grounds and facilities use policies, which regulate what and how spaces may be used for expressive activity in the first place.
Making matters worse, then-president of Cornell David Skorton asked the UA to amend the student conduct code again to include a recommendation that students register their expressive activities in advance. Fortunately, in February the UA declined Skorton’s request, noting—quite correctly—that the recommendation would be “potentially restrictive to spontaneous expression.”
Cornell’s journey of reflection on its speech-related policies culminated last week with the approval and codification of the grounds use rules proposed by the Outdoor Space Working Group by current Cornell president Elizabeth Garrett. The self-described “minimal set of rules” is noteworthy in its strong protection of expressive activity. As someone who profoundly benefitted from many robust (and colorful) exchanges of ideas at Cornell, I’ll take a moment to briefly analyze each of the rules:
1. Only members of the Cornell community may hold or host events on Cornell-owned property. External groups must be sponsored by a member of the Cornell community and the sponsor must have a representative present during the actual event. For these purposes, appropriate Cornell sponsors are: registered student organizations, departments and units of the university, and university-sponsored organizations and offices (e.g., Dean of Faculty, Faculty Senate, University Assembly, etc.).
Though the first rule appears restrictive, colleges and universities exist primarily for the benefit of the campus community, and courts have recognized that use of university spaces can typically be restricted to community members. Notably, however, the policy expressly permits outside speakers to use campus facilities in conjunction with a Cornell community co-sponsor. Given the resistance to such co-sponsorships FIRE has encountered at other institutions, Cornell’s codified position is a welcome one.
2. Classes, research, scheduled events and activities, and the normal and essential operations of the university shall not be disrupted.
Of course, the university has a strong interest in protecting its ordinary operations and functions, and this provision is properly narrowed toward serving that interest.
3. Individuals and groups have the right to engage in protests and counter-protests. However, no one may substantially interfere with another speaker's right to be heard or the right of others to hear a speaker.
FIRE has consistently maintained that drowning out a speaker and preventing his or her message from being heard (i.e., the “heckler’s veto”) is not a proper exercise of one’s freedom of expression. It is not only permissible, but indeed laudable, for the university to protect against such occurrences.
4. Use of public address systems and amplified sound will be permitted without prior approval during the hours of 12:00pm and 1:00pm, at Ho Plaza and in front of Day Hall. Public address systems and amplified sound will be permitted in other outdoor locations only with prior approval. Approval may be obtained using the Event Registration Form. [and]
5. Persons may not block public rights of way or ingress and egress into and out of university buildings.
Consistent with Cornell’s right to protect the ordinary operations of the university, these restrictions are sufficiently and narrowly tailored to appropriate university interests. Unregulated use of amplified sound can disrupt classes, faculty members conducting research, and residence hall living, and blocking campus paths and doorways clearly impedes the ability of community members to access campus resources.
6. No permit or registration is required for picketing, marches, rallies, and other demonstrations held on outdoor campus property. Other events are subject to event registration requirements as noted in the resources of this website, http://eventplanning.cornell.edu/
This provision is one FIRE would love to see at every college or university. Students and faculty must be free to engage in spontaneous and timely expression if the right to free speech is to serve its lofty purpose on campus. The complete removal of all registration and permitting requirements ensures that this ability will not be inhibited. And of course, use of indoor spaces— often prioritized for official uses—can be regulated to a greater extent without substantially interfering with expressive rights.
7. The university maintains the right to define additional time, place and manner restrictions in furtherance of its educational and research mission, and to ensure the safety of the University community and its members.
Clauses that reserve the right to institute additional restrictions on expression at the university’s whim often give FIRE pause. After all, such provisions could easily be abused to target unpopular speech. But when read together with both the speech-protective attitude of these rules, and the limitation of such additional restrictions to the protection of university functions, safety, and missions, we are optimistic that such restrictions will not be implemented lightly or abused.
While it may have taken an unfortunate incident and two years of introspection and hard-fought battles, Cornell appears to have learned the right lessons and reached a commendable conclusion: Freedom of expression must be protected on campus in order for the university to fulfill its purpose as a marketplace of ideas.
With a little work, perhaps Cornell can make this alumnus even prouder by becoming FIRE’s next “green light” school.