FIRE announces its Speech Code of the Month for December 2015: Auburn University.
Student protests have been all over the news this fall. While some of the protesters’ demands—such as demands for restrictions on student and faculty speech—have been troubling, the right of students to engage in protest and other expressive activities is critically important, and this autumn’s events have illustrated the power of student protest. What many people may not realize is that a distressing number of universities across the country maintain onerous restrictions on when and where students may demonstrate.
One such institution is Auburn University. Auburn’s restrictive and confusing Speech and Demonstration Policy limits where students can demonstrate on campus and gives the administration too much discretion over students’ expressive activities.
According to the policy, students are expected to demonstrate “in the Open Air Forum (located on the steps of the Ralph Brown Draughton Library)” unless the university explicitly authorizes another location at least 48 hours in advance. And although the policy’s introduction references “unscheduled” expressive activity, it later provides that students must secure “permits” even in order to use the Open Air Forum. The policy provides no neutral criteria by which permit requests will be assessed, instead stating simply that “[a]uthorization will not be unreasonably withheld.”
Auburn is a public university, legally bound to uphold students’ First Amendment rights. From a First Amendment standpoint, however, this policy is unacceptable in several regards. First, Auburn cannot establish just one free speech zone on campus where students can engage in expressive activity without prior university authorization (if, indeed, students may do so even there, which we will discuss in a moment). This has been confirmed by courts around the country.
A federal district court in Texas struck down a much less restrictive policy at Texas Tech University on the grounds that it unnecessarily restricted students’ right to free speech. The court held that there were certain areas of a public university’s campus—namely “park areas, sidewalks, streets, or other similar common areas”—that were “irreducible public forums” for the students on that campus. Similarly, an Ohio federal judge ruled unconstitutional a free speech zone policy at the University of Cincinnati that limited all “demonstrations, pickets, and rallies” to a “Free Speech Area” comprising just 0.1 percent of the university’s 137-acre West Campus. Moreover, a number of colleges and universities have voluntarily revised free speech zone policies in order to settle First Amendment lawsuits, some brought as a part of FIRE’s Stand Up For Speech Litigation Project.
Beyond the establishment of a free speech zone, it is wholly unclear whether Auburn allows for any spontaneous protests or demonstrations on campus. The policy does allude to “unscheduled” speakers, but from reading the detailed regulations, it seems as though at a minimum, the university requires anyone seeking to engage in expressive activities on campus to obtain “permits to schedule the use of the Open Air Forum,” which can be obtained from the university “Monday–Friday, from 8:00 AM to 4:30 PM.” What happens, then, if students wish to hold a demonstration in response to a major national event taking place over the weekend? Or at night? Demonstrations are often spontaneous reactions to unfolding events, and requiring students to obtain a permit in advance of demonstrating limits their ability to communicate their message in a timely and meaningful way. The vigils that were held after the terrorist attacks of September 11, 2001, or which are regularly held after mass shootings or allegations of police violence, would be effectively blocked by this policy. As the Supreme Court of the United States has stated, “It is offensive—not only to the values protected by the First Amendment, but to the very notion of a free society—that in the context of everyday public discourse a citizen must first inform the government of her desire to speak to her neighbors and then obtain a permit to do so.” Watchtower Bible and Tract Society of NY, Inc. v. Village of Stratton, 536 U.S. 150, 165–66 (2002).
Auburn’s policy is wholly inconsistent with its legal and moral obligations as a public institution that claims to value free speech. For these reasons, Auburn University’s Speech and Demonstration Policy is our December 2015 Speech Code of the Month.
If you believe that your college’s or university’s policy should be a Speech Code of the Month, please email firstname.lastname@example.org with a link to the policy and a brief description of why you think attention should be drawn to this code. If you are a current college student or faculty member interested in free speech, consider joining the FIRE Student Network, an organization of college faculty members and students dedicated to advancing individual liberties on their campuses.