TEXAS — Despite a federal district court ruling ordering Texas Tech University to loosen its campus speech code restrictions in October, critics of university “free speech zones” say the number of campuses in America with speech codes is not declining.
Judge Sam Cummings of the U.S. District Court for the Northern District of Texas said Texas Tech’s restrictions, requiring students to ask permission before making speeches and limiting the places where speeches are tolerated on campus, were unconstitutional. Now the university must develop a policy in which the limitations are more narrowly defined.
Kermit Hall, Utah State University president and editor in chief of The Oxford Companion to the Supreme Court of the United States,said this case was a continuance of campus speech codes that courts have viewed as suspicious for more than a decade.
“What makes this case particularly interesting is Judge Cummings came down pretty hard on the idea of creating designated zones for speech,” Hall said. “In that regard the case does break some new ground.”
The university denied plaintiff Jason Robert’s request to give a speech about the sinfulness of homosexuality in 2003, saying he was not allowed to give his speech outside the school’s designated free speech area, a 20-foot wide gazebo located that holds 40 people near the student union.
At the time, the university’s speech code banned “insults,” “ridicule” and “personal attacks.” Students were required to obtain permission from the university’s grounds-use committee six days in advance in order to speak on campus.
Greg Lukianoff, Foundation for Individual Rights in Education’s director of legal and public advocacy, said he has not heard of any intention by the university to appeal the decision.
Lukianoff said the ruling will make other universities think twice about adapting speech codes.
“While the decision itself won’t end speech zones, it hopefully will go a long way to persuading universities not to adopt speech zone policies,” he said.
According to the Foundation of Individual Rights in Education’s Web site, approximately 20 percent of college campuses, public and private, have no speech codes.
While speech codes are being scrutinized more frequently, Hall said the number of campuses that have speech codes is not decreasing.
“At the same time that speech codes have come under greater and successful legal attack, institutions have continued to develop speech codes,” Hall said. “It’s a paradoxical situation.”
Ethan Logan, Texas Tech University’s associate director in the center for campus life, said the speech zones do not impede or censor free speech. “We’re not going to censor free speech, but if you’re interrupting the academic mission we’ll ask you to move,” Logan said.
The university will comply with the judge’s revisions, but the university “never really thought of ourselves as having a speech code per se,” Mellinger said. “That was never the intent.”
But many critics say schools should not be able to restrict free speech to certain zones on campuses.
“I don’t subscribe to the concept of free speech zones. Our campus should be an entire free speech area,” said associate dean of students Joseph Navarro at the University of California at Santa Barbara.
Chris Loschiavo, director of student judicial affairs at the University of Oregon, said college campuses must perform a balancing act.
“Universities have competing interests,” Loschiavo said. “Universities are supposed to [protect] free debate and dialogue. We also have a responsibility to create a safe environment where students can succeed academically.”
The University of Oregon balances the competing interests with a harassment policy that focuses on conduct, not content, Loschiavo said.
Loschiavo said the Texas Tech University decision was a step forward for academic freedom. “I think anything that strikes down a speech code per se is a good decision,” Loschiavo said.
The Foundation for Individual Rights in Education has seen many campuses adopt a speech code with the intent of protecting its students without having a specific anti-harassment code, Lukianoff said.
“Because people seem universal in opposing harassment, it’s a great way to sneak in a speech code, and harassment is the most common way to justify a speech code,” Lukianoff said.
“Universities think that when they do punish expression that they are doing it with the best of intentions and for good reasons,” Lukianoff said.
“There have been movements in censorship throughout American history — every single one of them thought they were doing it for the right reason.”
Read the SPLC’s Legal Analysis of recent court rulings on campus speech restrictions, Zoning Free Speech.