By Virginia Postrel at Bloomberg View
Last September, Vincenzo Sinapi-Riddle, a student at Citrus Community College near Los Angeles, was collecting signatures on a petition asking the student government to condemn spying by the National Security Agency. He left the school’s designated “free speech area” to go to the student center. On his way there, he saw a likely prospect to join his cause: a student wearing a “Don’t Tread on Me” T-shirt. He stopped the student and they began talking about the petition. Then an administrator came out of a nearby building, informed them their discussion was forbidden outside the speech zone, and warned Sinapi-Riddle he could be ejected from campus for violating the speech-zone rule.
Sinapi-Riddle has now sued Citrus College, a state institution, for violating his First Amendment rights by, among other things, demanding that “expressive activities” be confined to the 1.34 percent of campus designated as a “free speech area.” Perhaps the most outrageous part of his experience is how common it is. The vague bans on “offensive” language and other “politically correct” measures that most people think of when they imagine college speech codes are increasingly being joined by quarantine policies that restrict all student speech, regardless of its content.
Speech-zone rules require students to ask permission to do such things as hand out leaflets, collect petition signatures, or give speeches; demand that students apply days or weeks in advance; and corral their activities in tiny areas of the campus, often away from the main pathways and quads. The rules aren’t about noise or crowds. They aren’t about disrupting classes. They’re about what you can do in public outdoor areas, and they apply even to just one or two people engaged in unobtrusive activities. They significantly infringe on students’ constitutionally protected speech.
But judging from some of the public response to the Citrus College case, a lot of people think that’s just fine. Debating national security issues, they seem to think, has no place at state colleges.
“The creation of the free-speech zones, and the enforcement of sound-level ordinances, was not to prevent free speech, but give religious or political speech a time, place, and manner that would allow speakers to address their messages to audiences on campuses without disrupting the other fundamental functions of the institutions,” wrote a retired physics professor commenting on a Chronicle of Higher Education report.
“Isn’t an institution of higher education’s primary function … the education/learning and safety of its students? Anything that is considered distracting or obstructive of the primary goals has to be managed. If some students disagree, they are welcome to attend a different college,” wrote a commenter on a public-radio discussion of the case. Another declared: “I welcome the free speech zones. On some campuses in California, you cannot walk from a classroom to the library without being bombarded by propaganda.”
A campus, in this view, should be like a shopping mall. If you’re going about your business, you shouldn’t be bothered by pamphleteers and petitioners. You should be protected against sermons and political rants. Confining controversial speech to a small area is no different from telling the guy selling sunglasses that he’s got to rent a kiosk.
There are two problems with this line of thought: one legal, one educational.
Legally, a public university is a type of public forum — not as open as a public sidewalk or park, perhaps, but nonetheless government property subject to the First Amendment. A state college campus is different from the purely private property of the Googleplex or a Walmart parking lot. To pass constitutional muster, therefore, any restrictions on speech have to be both content-neutral and “reasonable” to accomplish a narrow government purpose. The government can’t play favorites, and it must have a very good justification for any rules it imposes.
Saying hundreds of people can’t hold a noisy demonstration outside the library where students are studying for exams might qualify as reasonable. Forbidding protestors from crowding sidewalks so that people can’t get to class might also — although even there, the recent Supreme Court case on abortion protests suggests a heavy burden of proof. But there’s no way the speech-zone restrictions at places at Citrus and elsewhere would make the cut.
But saying a single student can’t hand out copies of the Constitutionor ask people to sign a petition without giving a week’s notice, getting a permit, or staying in a confined area simply isn’t reasonable. (A school might be able to make stricter rules for people outside the campus community of students, faculty and staff.) Advance-notice requirements are particularly burdensome, because they prevent students from reacting to events, such as controversial speakers or the current conflict between Israel and Hamas. “Even when it’s something long-planned,” said University of California at Los Angeles law professor Eugene Volokh in an interview, “it’s hard to see any justification for a permit requirement for one person leafleting.”
Sinapi-Riddle, in other words, can make a strong case that the Citrus Community College District blatantly violated his First Amendment rights. That’s why his lawsuit and two others involving speech zones at other public schools are part of a new litigation push by the Foundation for Individual Rights in Education, a civil-liberties watchdog group on whose board I serve. By bringing cases that don’t require new precedents, FIRE hopes to make public colleges pay for their violations of free speech and thereby change the financial incentives facing administrators. “They’re probably going to succeed,” says Volokh, who is not involved in the litigation, “because the case law is generally on their side.”
But you don’t have to be a constitutional lawyer to see what’s wrong with these policies. Educationally, speech-zone restrictions don’t further the purposes of a state college. They undermine those purposes.
Contrary to what many people seem to think, higher education doesn’t exist to hand out job credentials to everyone who follows a clearly outlined set of rules. (Will this be on the exam? Do I have to come to class?) Education isn’t a matter of sitting students down and dumping pre-digested information into their heads.
Higher education exists to advance and transmit knowledge, and learning requires disagreement and argument. Even the most vocational curriculum — accounting, physical therapy, civil engineering, graphic design — represents knowledge accumulated through trial and error, experimentation and criticism. That open-ended process isn’t easy and it often isn’t comfortable. The idea that students should be protected from disagreeable ideas is a profoundly anti-educational concept.
As for the claim that free expression is “distracting,” that’s true. Learning to deal with such distractions — whether by engaging or ignoring them — is a big part of learning how to function as a responsible adult in a free and media-rich society. The irony of the shopping mall model is that shoppers know perfectly well how to do this. Walking through a mall, we negotiate all sorts of advertising signs and sample peddlers without a problem. Surely college students can do the same with sales pitches for ideas.