FIRE announces its Speech Code of the Month for August 2010: Front Range Community College in Colorado.
Front Range Community College (FRCC) maintains a “free speech zone” policy limiting expressive activities on each of its three campuses to areas designated by the college. To use those areas, one must complete a “Free Speech Zone Registration Form” (the link is to the form for the Boulder County Campus, but they are all the same—you can see the others here and here). The form contains a perfect blend of unintentional hilarity and horrendous unconstitutionality that makes it an ideal Speech Code of the Month.
First, the FRCC administration must think free speech is a tremendously dangerous undertaking, because the form leads off as follows:
For myself, my heirs, successors, executors, I hereby knowingly and intentionally waive and release, indemnify and hold harmless the college, Front Range Community College (FRCC), The State Board for Community College and Occupational Education, The State of Colorado, trustees, officers, employees, agents and volunteers from and against all claims, actions, causes of action, liabilities, suits, expenses and NEGLIGENCE of any kind of nature arising directly or indirectly out of any damage, loss, injury, paralysis or death in connection with my participation in this activity at FRCC and/or use of this equipment and to waive all claims for damages or losses against the state, the Board or the college which may arise from such activities.
Got that? If you should happen to meet your maker while attempting to engage in expressive activity at FRCC, your heirs and successors best not come sniffing around for a settlement, even if your untimely demise was in fact caused by negligence on the college’s part.
Okay. Now that we’ve gotten those, shall we say, unpleasantries out of the way, let’s take a look at how FRCC tries to regulate its students’ right to free expression. First, the college uses the time, place, and manner doctrine with all the subtlety of a jackhammer, stating that “FRCC is a non-public forum; therefore, the college has the right to restrict the time, place, and manner of the free speech activity.” As anyone who follows FIRE’s work knows, however, the college cannot simply declare itself a non-public forum, and its right to maintain reasonable time, place, and manner restrictions absolutely does not give it carte blanche to decide when, where, and how student expression can take place. Rather, content-neutral time, place, and manner restrictions are only permissible “[s]o long as the means chosen are not substantially broader than necessary to achieve the government’s interest” (Ward v. Rock Against Racism, 491 U.S. 781, 800 (1989)). While a public university does have a legitimate interest in maintaining an environment conducive to education, policies like FRCC’s that limit speech to small and/or out-of-the-way areas of campus are much broader than is necessary to achieve this interest, and such policies cannot be justified as reasonable time, place, and manner restrictions.
It gets worse. The policy goes on to prohibit ANY distribution of literature on FRCC’s campuses, even within the Free Speech Zones, unless the literature is proactively requested by others:
I/we may not approach any individual and am unable to distribute any flyers, pamphlets, petitions, etc. unless asked for by passers-by.
In reality, the right to distribute handbills and other types of literature is an essential element of the right to free expression. While the college might reasonably regulate certain types of aggressive or commercial solicitation, an outright ban on all literature distribution is not a reasonable time, place, and manner restriction; it is, rather, an egregious violation of students’ First Amendment rights.
As a last—but certainly not least—insult to the First Amendment, the policy includes several overbroad regulations on the content of the expression that it has already impermissibly confined to its Free Speech Zones. First, it states that “Pictures, displays, graphics, etc. may not be used if they promote hate, harm, violence, or the threat of these to others.” While it is fine to prohibit actual threats and incitement of violence, the broad prohibition on the promotion of “hate” could easily be applied to a great deal of protected, and even core political, expression (think of, for example, certain views on illegal immigration, etc.). Second, it states that “De minimus speech (speech that amounts to nothing and has no purpose) will not be allowed.” This raises the question of who, exactly, is empowered to decide what kind of speech “amounts to nothing” or “has no purpose.” My guess would be the FRCC administration has empowered itself on that issue. Given FRCC’s understanding of the First Amendment, I don’t think I would want the fate of my expression in FRCC administrators’ hands. Moreover, even if FRCC did put forth some clearer definition of “speech that amounts to nothing and has no purpose,” such speech would still be entitled to First Amendment protection unless it fell into one of the very narrow categories of speech (obscenity, true threats, and so forth) that are explicitly unprotected.
FRCC’s Free Speech Zone policy unconstitutionally quarantines free speech on its campuses, and even within those confines it imposes impermissible content-based regulations on the content of speech. For these reasons, it is our August 2010 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 e-mail 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 these issues, consider joining FIRE’s Campus Freedom Network, a loose affiliation of college faculty members and students dedicated to advancing individual liberties on their campuses. And if you would like to help fight abuses at universities nationwide, add FIRE’s Speech Code of the Month Widget to your blog, website, or Facebook profile and help shed some much-needed sunlight on these repressive policies.