Speech code memo for Moorpark College, October 17, 2012

By October 17, 2012

MEMORANDUM

TO: Andrew Anderson, Moorpark College
FROM: Azhar Majeed, Associate Director of Legal and Public Advocacy, Foundation for Individual Rights in Education (FIRE)
DATE: October 17, 2012
RE: Speech Codes at Moorpark College

Introduction

This memorandum is in response to your request for information about policies restricting freedom of speech at Moorpark College.

The Foundation for Individual Rights in Education (FIRE) unites leaders in the fields of civil rights and civil liberties, scholars, journalists, and public intellectuals across the political and ideological spectrum on behalf of liberty, legal equality, academic freedom, due process, freedom of speech, and freedom of conscience on America’s college campuses. Our website, thefire.org, will give you a greater sense of our identity and activities.

FIRE has identified three policies at Moorpark that violate students’ First Amendment rights. Fortunately, each of these speech codes could easily be revised to protect student expression and to meet Moorpark’s legal and moral obligations as a public institution to honor the First Amendment. FIRE would be pleased to work with the students, faculty, and administrators of Moorpark College to improve its policies regulating campus speech.

What follows is a discussion of the specific First Amendment issues with each of Moorpark’s speech codes, as well as proposed solutions for remedying those defects.

I. "Use of College Facilities" Policy (2012–2013 General Catalog, Appendix IV: Rights and Responsibilities)

Appendix IV of Moorkpark’s 2012–2013 General Catalog contains a policy on "Use of College Facilities" stating, in pertinent part:

Outdoor meetings and events.

a) Students and college personnel may gather at reasonable places and times on the campus consistent with the orderly conduct of college affairs and the free flow of traffic. […] 

b) The Campus Center patio is available as a discussion area. The Executive Vice President of Student Learning or designee may approve other areas if unusual circumstances require.

This policy, like similar "free speech zone" policies at other colleges and universities, restricts the areas on campus where students may engage in free speech activity, including rallies, protests, demonstrations, and leafleting. The policy identifies only one area on campus, the Campus Center patio, as being "available" for such activity, and vaguely states that elsewhere, students "may gather at reasonable places and times on the campus consistent with the orderly conduct of college affairs and the free flow of traffic." 

Identifying only one area on campus with certainty where students may engage in core First Amendment activity is clearly insufficient at a public institution such as Moorpark. Moreover, the designation of "reasonable places and times" is likely to leave students guessing when and where they are allowed to speak freely and participate in a free exchange of ideas. This policy suffers from the constitutional defect of vagueness. A regulation is said to be unconstitutionally vague when it does not "give a person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly." Grayned v. City of Rockford, 408 U.S. 104, 108–09 (1972). Under this policy, many students will be likely to self-censor rather than risk punishment, given its uncertain contours. This harmful chilling effect on campus discourse is fundamentally at odds with Moorpark’s First Amendment obligations.

The policy also leaves too much discretion in the hands of the Executive Vice President of Student Learning or his or her designee, who may approve areas other than the Campus Center patio for free speech activity "if unusual circumstances require." No explanation is given of what such circumstances might be, or of what criteria will be considered in possibly allowing students and groups to use other areas of campus. Instead, full discretion is vested in the administrators charged with enforcing the policy. The lack of specific, content-neutral criteria on this point opens the door to selective enforcement and viewpoint-based restrictions on speech, a particularly pernicious form of censorship under the First Amendment.

While public colleges may impose reasonable "time, place, and manner" restrictions on student expression, such restrictions must be "narrowly tailored" to serve a significant governmental interest. Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (quoting Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984)). There is nothing "reasonable" nor "narrowly tailored" about transforming the vast majority of the college’s property—indeed, public property—into a censorship area by providing students with one designated area for free speech and leaving them uncertain as to other places on campus where they may exercise this precious right. The generalized concern for order that apparently underlies the establishment of Moorpark’s free speech zone policy is neither specific enough nor substantial enough to justify limiting the vast majority of student speech in this manner.

Moorpark should heed the lessons of recent litigation involving the University of Cincinnati, which suffered a defeat in federal court this August due to its own free speech zone policy. The university maintained a tiny free speech zone comprising just 0.1 percent of its 137-acre West Campus and further required that student activity in that area be registered with the school ten business days in advance. In finding for the student group challenging this policy, the federal district court prohibited the University of Cincinnati from "[i]mposing or enforcing any policy restricting student speech in any designated public forum" on campus unless the restriction is "individually and narrowly tailored to serve a compelling University interest." See University of Cincinnati Chapter of Young Americans for Liberty v. Williams, No. 1:12-cv-155 (S.D. Ohio Aug. 22, 2012).

Similarly, in Roberts v. Haragan, 346 F. Supp. 2d 853, 861 (N.D. Tex. 2004), a federal district court struck down a free speech zone policy at Texas Tech University on First Amendment grounds. The court held that Texas Tech policy must be interpreted to allow free speech for students on "park areas, sidewalks, streets, or other similar common areas … irrespective of whether the University has so designated them or not." Roberts makes clear that on a public college campus, the First Amendment requires that open and common areas typically be made available for free speech activity. Moorpark’s designation of a single area on campus for student free speech flies in the face of this principle.

Not only does this speech code contradict legal precedent, it goes against stated Moorpark policy. Appendix IV of the General Catalog includes a provision regarding "Advocacy and Free Expression," which declares that "[t]he primary purpose of a college is the advancement and dissemination of knowledge. Free inquiry and expression are indispensable to the attainment of this purpose." It is difficult for students to serve that "primary purpose" when their free speech rights are confined to small areas of campus and regulated in vague, restrictive ways. If free speech truly is "indispensable" to Moorpark’s mission, the college’s policies must reflect that reality.

To better live up to this admirable statement, Moorpark must open up much more of its campus to free speech and expressive activity by its students. A revision of this policy might state, for instance: "At any time, a student or student organization may exercise their right to free speech in the open and public areas of campus without need for prior reservation or approval." The policy revision should list the major areas of campus, such as the Campus Center patio (but including many more), that are available for free speech. The policy revision might also include language such as: "In these areas, spontaneous, non-amplified student speech and expressive activity will be permitted as long as it does not disturb classes, interfere with campus traffic, or otherwise materially disrupt the functioning of university operations."

II. "Privileges of Student Organizations" Policy (2012–2013 General Catalog, Appendix IV: Rights and Responsibilities)

Appendix IV of the General Catalog contains a policy on "Privileges of Student Organizations" reading, in relevant part:

Recognized student organizations shall not use District facilities for the purpose of planning or implementing off-campus political or social events, nor use the name of the colleges in conducting such off campus events, unless authorized by the Associated Students.

This policy violates students’ First Amendment rights to free speech and freedom of association in a number of respects. First, recognized student organizations that are "planning or implementing off-campus political or social events" should have the same access to college facilities that other recognized student organizations enjoy for their own campus events, so long as they meet all applicable requirements for use of such facilities. Instead, this policy restricts student organization access to facilities on the basis of the content of their expressive activity: "planning or implementing off-campus political or social events" is prohibited, while other types of expressive activity is permitted. This is an untenable restriction.

Moorpark’s policy is presumptively aimed at avoiding institutional entanglement with partisan political activity. However, in conflating the private speech and political activities of individual student groups with the college’s own speech and activity, the policy has overshot its mark. With respect to Moorpark’s obligations under section 501(c)(3) of the Internal Revenue Code, Internal Revenue Service training materials have noted that "[t]he actions of students generally are not attributed to an educational institution unless they are undertaken at the direction of and with authorization from a school official," as the agency has drawn a distinction between "the individual political campaign activities of students" and their university. Judith E. Kindell and John Francis Reilly, "Election Year Issues," Exempt Organizations Continuing Professional Education Technical Instruction Program for Fiscal Year 2002, 365 (2002), available at http://www.irs.gov/pub/irs-tege/topici02.pdf.  

If Moorpark has promulgated its policy under the conclusion that a student group’s partisan student speech or activity necessarily bears the institution’s imprimatur or endorsement, it is mistaken-particularly insofar as its policy restricts the mere planning or implementing of off-campus political activity. As FIRE explained in our 2012 Policy Statement on Political Activity on Campus:

Students, student groups, and faculty members do not endanger the 501(c)(3) status of [their college or university] by engaging in partisan political speech when such speech is clearly separate and distinct from the institution’s views or opinions. The presumption is that such speech does not represent the views of the university as an institution. Moreover, this presumption applies with particular vigor when speakers clearly indicate that they are not speaking for the university. 

[…]

At public universities, partisan student groups may use institutional resources and facilities for partisan political expression and activities when the use of such resources and facilities is obtained in the same way that non-partisan student groups obtain such use.  

A copy of FIRE’s policy statement is enclosed with this memorandum.

It is also not clear what Moorpark’s policy intends by the term "social events." Student groups without question are entitled to the same access to college facilities for the purposes of planning or implementing off-campus "social events" as are other student groups, so long as they comply with all other requirements for facility use. It is not evident what the college’s interest would be in restricting student groups from meeting in a campus facility merely to discuss, for instance, an off-campus ski trip, ice cream social, or formal dance.

Second, this policy prohibits student organizations from "us[ing] the name of the college[] in conducting such off campus events." Once again, the college appears to be concerned about avoiding entanglement with students’ political speech and activity. As explained above, however, the presumption should be that student groups speak for themselves, and this presumption will only be overcome when they expressly hold themselves out as speaking on behalf of the institution or as representing its official views. By merely calling itself, for example, the Moorpark College Student Environmentalist Club or the Moorpark College Democrats, a student group has not done nearly enough to overcome this presumption.

It is also troubling that the policy allows for an exception where student groups are "authorized by the Associated Students" to use the college’s name in such contexts. The policy does not set forth any criteria by which the Associated Students will make this determination, instead evidently leaving discretion in the hands of the Associated Students to decide on a case-by-case basis. This opens the door to selective and uneven enforcement of the policy, further harming Moorpark students’ rights.

In its General Catalog, Moorpark’s section on "Student and Instructional Support Services" contains a policy on "Student Activities" stating that one of the objectives of student organizations and student life on campus is that "[s]tudents will … learn self-advocacy and civic responsibility." Yet it is difficult to imagine how students can do so under the restrictions of the policy on Privileges of Student Organizations. Moorpark College must abolish this policy if it intends to fully uphold its students’ rights to freedom of speech and freedom of association.

III. "Student Code of Conduct" (2012–2013 General Catalog, Appendix VII: Student Discipline Procedures)

Moorpark’s "Student Code of Conduct," found in Appendix VII of the General Catalog, prohibits, in pertinent part:

Disruptive behavior, willful disobedience, profanity, vulgarity or other offensive conduct …

FIRE named this policy our "Speech Code of the Month" in November 2010 due to its clear and substantial violation of students’ free speech rights. As with all of the university policies that we name as Speech Code of the Month, FIRE would be happy to see Moorpark reform this policy; doing so would be a major step forward for students’ expressive rights.
First, "profanity" and "vulgar[]" speech are largely protected by the First Amendment and cannot be proscribed entirely on the campus of a public college, no matter how offensive such expression may be to members of the campus community. In upholding the right of a Vietnam War protester to be in a county courthouse wearing a jacket emblazoned with the words "Fuck the Draft," the Supreme Court famously wrote that "one man’s vulgarity is another’s lyric." Cohen v. California, 403 U.S. 15, 25 (1971). Similarly, in Papish v. Board of Curators of the University of Missouri, 410 U.S. 667, 670 (1973), the Court held that "the mere dissemination of ideas—no matter how offensive to good taste—on a state university campus may not be shut off in the name alone of ‘conventions of decency.’" Under these and other precedents, Moorpark may not, consistent with its First Amendment obligations, ban profane and vulgar student speech in their entirety.

Second, the policy vaguely prohibits "other offensive conduct" without indicating what such conduct might be. The policy thus provides students no notice as to what speech or conduct might subject them to disciplinary action, instead reserving a great deal of discretion for administrators charged with enforcing it. This is exceedingly likely to chill campus discourse. As the Supreme Court has observed, "[W]here a vague statute ‘abut[s] upon sensitive areas of basic First Amendment freedoms,’ it ‘operates to inhibit the exercise of [those] freedoms.’ Uncertain meanings inevitably lead citizens to ‘steer far wider of the unlawful zone … than if the boundaries of the forbidden areas were clearly marked.’" Grayned, 408 U.S. at 109 (internal citations and quotation marks omitted). Moreover, the policy’s lack of an objective, "reasonable person" component means that the "offensiveness" of particular expression is likely to be judged from the perspective of an administrator or a complaining student. Therefore, student expression must conform to the delicate sensibilities of the most easily offended members of the campus community. Yet the Supreme Court has counseled that "[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Texas v. Johnson, 491 U.S. 397, 414 (1989).

In order to safeguard its students’ free speech rights, Moorpark must remove the provisions relating to "profanity, vulgarity or other offensive conduct" from this policy.

Conclusion

FIRE hopes this memorandum is helpful in your efforts to promote speech code reform at Moorpark College. Once again, each of these policies could easily be revised to better protect student speech, and FIRE would be thrilled to work with the students and administrators of Moorpark College to help it meet its First Amendment obligations.