‘Time, Place and Manner’ at the University of Michigan and Elsewhere

February 21, 2008

Loyal Torch readers may remember our recent discussion of proposed regulations at the University of Michigan. Yesterday’s edition of the Michigan Daily features an article that sheds some more light on the matter, providing insight into the University’s justifications and placing the proposed regulations within the context of campus controversies across the country.

Under the regulations, the University’s College of Literature, Science and the Arts (LSA) would severely limit the distribution and posting of student-created print material, such as publications, fliers, and informational signs, within all LSA buildings. Among the express limitations are the following: only those student organizations and publications that are under the oversight of the Board for Student Publications, or are recognized by the Michigan Student Assembly, would have the right to distribute or post material in LSA buildings; any such organization or publication would additionally have to apply to and gain permission from LSA’s Facilities and Operations Department each time it sought to distribute or post material; and, perhaps most egregiously, LSA would completely shut off the distribution and posting of material in its buildings between the dates of April 14 and September 15, leaving students with a little more than half of the calendar year to work with.

As the Daily article discusses, the University has maintained that the proposed policies are not an attempt to censor student expression on the basis of its content, but rather are aimed at regulating the time, place and manner of distribution and posting of print material in a reasonable, content-neutral manner. The University’s proffered rationale is that the unregulated distribution and posting of print material will lead to clutter inside LSA buildings, creating the potential for students slipping and injuring themselves:

For the University’s purposes, the danger of slipping and falling on a discarded flier outside the Fishbowl is akin to the chaos that might ensue following the warning of a fictitious fire. Discarded fliers and publications, the University claims, are a form of unregulated speech that presents an unnecessary threat to people in the area.

However, as FIRE’s Will Creeley points out in the Daily, this does not give a public university carte blanche to impose all kinds of restrictions on student speech:

What comes up any time a university uses "time, place and manner" to justify a speech code or "free speech zone," Creeley said, is the question of how much regulation is necessary to preserve order without infringing on free speech and expression rights.

"Time, place and manner restrictions have to be constructed in ways that are least restrictive in speech activities as possible," he said. "In this case, LSA’s policy isn’t narrowly targeted and isn’t specific enough to address the claims they’re purported to address."

Importantly, the Daily article also draws a parallel between the University’s stated justifications and events at numerous other college campuses. Pointing to FIRE cases from recent years, such as ones at the University of Central Florida (UCF) and the University of California at San Diego (UCSD), it highlights the fact that university administrations often employ the "time, place and manner" doctrine to attempt to rationalize severe restrictions on campus expression.

For example, in the UCF case, university president John Hitt wrote to FIRE, "U.S. courts have long held that speech may lawfully be regulated with regard to time, manner and place." However, the mere act of calling something a "time, place and manner" regulation does not end the discussion; it only starts it. In the case of UCF’s "free assembly areas," Hitt’s conclusory statement ignored the fact that his school’s policy limited demonstrations to four small areas on campus and completely banned them anywhere else on campus. This would not appear to be the type of reasonable "time, place and manner" regulation that the Supreme Court has long indicated, going back to its 1989 decision in Ward v. Rock against Racism, is acceptable in a public forum when "narrowly tailored" to achieve a legitimate government purpose.

Much like university administrations often seem to think, or at least disingenuously argue, that labeling certain speech as "harassment" automatically makes it susceptible to official suppression, they repeatedly make the same mistake when using the "time, place and manner" rationale. The point needs to made and re-emphasized that a public university policy passes constitutional muster as a "time, place and manner" regulation only if it meets the requisite legal standards applicable to it.