FIRE shows no love to misleadingly-named “free speech zones” on college campuses.
Whether they’re too cramped for more than a few people, or kind of resemble a drainage ditch (because they are a drainage ditch), or require insane amounts of advanced notice or permission to use, free speech zones are rarely big enough to zone much of anything and they’re certainly not — by any widely accepted definition — actually “free.” When colleges have already unconstitutional free speech policies, it leaves them open to lawsuits, and the expectations of what students are and are not allowed to do gets muddled. Just ask Polly Olsen, who’s suing Northeast Wisconsin Technical College because they stopped her from handing out valentines on Valentine’s Day.
Last month, the Wisconsin Institute for Law and Liberty filed a lawsuit on Olsen’s behalf alleging that NWTC administrators enforced unconstitutional speech policies when they stopped her from handing out Valentine’s Day cards. According to the lawsuit, Olsen was passing out little red heart-shaped papers in NWTC’s General Studies Office with messages on them like “Jesus Loves you! Romans 5:8;" and "You are loved and cared for! 1 Peter 5:7," as she does every year in memory of her late mother, when she was stopped by campus security.
Campus security then took Olsen to their office and informed her that they had received a complaint from another student about “suspicious activity.” Olsen was told that she had distributed her cards in a restricted area (the General Studies office in the Student Union) and that she was in violation of the Public Assembly Policy for handing out “unwanted and potentially offensive” messages in the restricted area. According to a security officer, Olsen was seen on camera entering offices, and leaving valentines on desks. Olsen claims she knew employees in the office and wanted to give them valentines. According to the lawsuit, the campus security coordinator told Olsen that “some people could consider her act a solicitation or find the message written on the card offensive,” although they claim that is not why they were talking to Olsen that day.
In a statement, NWTC said Olsen’s case was actually about where her speech occurred, rather than the content, claiming that the office she was in had confidential records. They likened Olsen’s behavior to a visitor walking behind the desk at a doctor’s office. The College vehemently denies that the content of Olsen’s speech, the valentines, had anything to do with her being questioned by security.
NWTC’s vice president of college advancement, Karen Smits, told the Milwaukee Journal Sentinel that the campus policy in question has been under review since 2017.
So where are students allowed to engage in expressive activity? Even at schools without free speech zones, there are still limits on where students constitutionally can and cannot engage in expressive activity, for example, holding a protest in the middle of a classroom while a professor is trying to teach a class, or worse, protesting in a professor’s office itself.
In this situation, NWTC’s bad policies just make that answer more complicated than it needs to be.
NWTC’s “Public Assembly Policy” has all the trappings of a bad speech zone policy. Not only does it section off a small area of campus for students to engage in any expressive activity, it also requires students to fill out an application to reserve the spot ahead of time, and bans any assembly outside the pre-approved protest times (between the hours of 8 a.m. and 9 p.m.) and does not permit students to engage in expressive activity on more than three consecutive days. NWTC’s free speech zone encompasses less than 1 percent of the total area on campus.
Things get even more dicey since students are required to request reservation of the free speech zone. Depending on how long it takes to process the application, or if the zone is already reserved, that could result in a waiting period for students to exercise their rights. Even if students are permitted to protest at the same time to avoid those waiting periods, there’s no guarantee that they would even be able to all fit in the zone itself. Take for instance the infamous –– and now defunct, thanks to a FIRE lawsuit –– “free speech gazebo” at Texas Tech. If all the students there decided to protest at once, they would have had to be crushed down the density of Uranium-238 to have fit inside the former free speech zone.
NWTC’s other speech-related policies mean the school can also restrict wide swaths of speech that should be free at a public college like NWTC. NWTC reserves the right to restrict 'offensive literature and signs' — at their discretion, an unacceptable restriction by a public institution fully bound by the First Amendment.
NWTC has the right to decide reasonable time, place, and manner restrictions on student speech, such as not allowing expressive activity to go on in private and closed-off offices, which is what the college claims Olsen did when she was handing out valentines. On the other hand, sectioning off a tiny space on campus for students to protest does not seem reasonable, especially on a public campus that must respect the First Amendment. Neither does having to get a permission slip to exercise speech on campus. This is all complicated by the fact that NWTC’s policies also seem to limit the type of speech in which students can engage by banning “offensive” signs or literature. In addition to being unconstitutional, this raises the question of who gets to judge what counts as offensive literature or signs.
FIRE will be following this case closely.
To learn more about the speech codes at a particular institution, search our Spotlight database. If the school you’re looking for isn’t included in Spotlight, or you would like to learn more about how you can reform speech codes at any college or university, contact FIRE for more information.