FIRE announces its Speech Code of the Month for May 2016: the University of Missouri.
For months now, the University of Missouri (UM) has been the focus of extensive news coverage—and criticism from all sides—for its handling of student protests on campus. Largely missing from that coverage, however, is the fact that UM maintains written policies restricting its students’ constitutionally protected free speech rights.
Of particular note is the university’s policy on the “Sale and Distribution of Non-University Publications.” The definition of a “non-university publication” is broad; it includes “any publication not officially published by the University or by a University-recognized student organization.” So, if you are a student or unrecognized student group who wishes to distribute literature on campus, your publication would fall under this definition.
For these publications, the university requires (among other things) that:
- “The sale or distribution of any non-University publication must be approved in writing by Administrative Services prior to distribution,” and
- “The publication must carry the name and address of the publisher, and the names of the several editors and officers of the publication.”
Both of these provisions are troubling.
Imagine, for example, if you were a student who wished to hand out pamphlets criticizing the administration’s handling of recent controversies on campus. Not only would you have to first ask the administration for written permission to do so, but you would also have to sign your name and address to the publication. Do you think this might have a significant effect on the number of students willing to publicly criticize the administration?
Unsurprisingly, given the obvious chilling effect on free speech, both of these restrictions conflict with longstanding First Amendment jurisprudence. With regard to the prior approval requirement, the Supreme Court of the United States has stated that “[i]t 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).
Additionally, anonymous speech, including the anonymous distribution of literature, is protected by the First Amendment. In Talley v. California, 362 U.S. 60 (1960), the Supreme Court held unconstitutional a municipal ordinance that—just like UM’s policy—banned the distribution of literature unless it included the publisher’s name and address. Noting that “[p]ersecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all,” the Court ruled that the ordinance in question was void on its face because “identification and fear of reprisal might deter perfectly peaceful discussions of public matters of importance.” Talley, 362 U.S. at 64–65.
The right to anonymous speech is of no lesser importance on college campuses. A recent letter from the Electronic Frontier Foundation to the Department of Education’s Office for Civil Rights (OCR), urging OCR to protect the right to anonymous speech, detailed some of the critical reasons college students might want to communicate anonymously:
At the University of Southern California, an anonymous group of students who identify themselves as the USC Girl Mafia use Twitter to map locations of assaults on campus and to distribute sketches of a man suspected in several sexual assaults. Relatedly, anonymity was essential for student activists at Columbia University seeking to bring attention to what they believe was an inadequate response to a series of sexual assault allegations. The activists relied on anonymity out of fear of being disciplined or sued for speaking out to identify individuals who allegedly assaulted female students. Further, because some universities have punished victims of sexual violence who publicly identified themselves, anonymity provides an important way for students to discuss their experiences and find support without exposing themselves to further contact by their attacker or campus discipline. At Guilford College, students used an online form to collect anonymous testimonials and reports of racial violence from those who felt unsafe revealing their identities through official channels.
As a public university, UM cannot constitutionally require its students to obtain prior approval and provide their names and addresses before distributing literature on campus. For this reason, UM’s policy on literature distribution is our May 2016 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 email@example.com 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.