Billy Embree was trying to help his college’s janitors fight for higher wages. He ended up fighting a suspension.
When Embree joined a union organizer in handing out fliers on Cincinnati State Technical and Community College’s campus May 30, security officers removed Embree from school property, threatened him with suspension and threatened to send the organizer to jail. The police came but made no arrests.
Two weeks later, the pair were back on campus canvassing after completing the official process of registering with the student activities office and submitting their fliers for approval.
Originally, “they did not go through the process,” said Michele Imhoff, the college’s director of public information. “Since that time, they have gone through the process, and they have been on campus, and they’re on campus today.”
Requiring pre-registration for flier distribution and requiring posted fliers to bear a stamp of approval are forms of prior review, experts say, that could influence the circulation of student publications and tests the strength of the First Amendment on public college campuses.
“It’s constitutionally questionable,” said David Hudson of the First Amendment Center at Vanderbilt University in Nashville, Tenn. “Prior review policies are probably OK at the secondary school level, but public colleges and universities are supposed to be about a marketplace of ideas.”
The guards at Cincinnati State had been instructed to remove anyone canvassing on campus who did not go “through the proper channels,” Imhoff said.
Such “proper channels” are common stipulations at public colleges nationwide. “Their legal rationale would be that all they are doing is requiring students to adhere to reasonable time, place and manner restrictions,” explained Jane Kirtley, the Silha Professor of Media Ethics and Law at the University of Minnesota School of Journalism and Mass Communication.
Sandy Davidson, a media law professor at the University of Missouri at Columbia, said state institutions have the authority to regulate the time, place and manner of speech as long as they are not interfering with content.
“As long as you have a non-discriminatory, evenly applied time, place and manner restriction, then the state authorities are all right,” Davidson said. “You have the right to free speech, but that doesn’t mean any time, any place, anyhow.”
Kirtley said public schools have an obligation to regulate some speech.
“Of course in an ideal world we would say everybody ought to engage in any expressive act whenever they choose,” Kirtley echoed, “but as a practical matter I think universities and any state entity also have an obligation to balance the need to promote the opportunity of people to do that with other interests like public health and safety.”
But that balance can tilt when such policies are designed to discourage speech through red tape.
“Whenever you have requirements where expression is reviewed beforehand, you end up chilling controversial speech,” said Greg Lukianoff, president of the Foundation for Individual Rights in Education.
No disciplinary action was taken against Embree, but he said an “intimidation factor” still overshadows student participation in the janitors’ campaign. While circulating a petition, “I actually had students tell me, ‘Oh, I’m about to graduate. I can’t sign this. I don’t want to start any trouble,’” he said. “That’s part of our freedom of speech — being able to sign something we believe in.”
A fair and clear procedure should not be intimidating, however, Kirtley said. “The question is how onerous is the process and is it executed in a way that is absolutely fair, equitable and viewpoint-neutral.”
When that process includes prior review of the content — not just the time, place and manner — its tension with the First Amendment escalates, experts warned.
“The danger with this kind of operation is that it could lead to viewpoint-based discrimination and restrictions, which are really problematic under the First Amendment,” Kirtley said.
Courts have consistently rejected systems that require prior approval of independent student speech on public college campuses. In their Guide to Free Speech on Campus, the Foundation for Individual Rights in Education describes requiring prior approval of the content or viewpoint of campus demonstrations as “unconstitutional prior restraints.”
‘Check it through first’
Marcia Colton works at Cincinnati State’s Student Activities Office, which is charged with approving all fliers before they can be posted on any wall or bulletin board. People wishing to hand out fliers do not need their literature stamped, but they must register with the office.
She said content is a factor in determining which fliers are approved and which are denied.
“If it’s going to be something of a controversial nature, we like to check it through first,” Colton said. “Ninety percent of the fliers that go up, there’s no problem, but there are certain things where it may pose a question or we want to make sure it’s in line with what the college is doing.”
Colton said the policy is designed to screen fliers that the administration considers inappropriate.
“We had an incident where they were advertising a party or something, and there were some very scantily clad women. Those were not approved,” she said in a phone interview. “We had a woman who was trying to sell her egg, and so we didn’t authorize that.”
As for the union trying to organize the janitors, approval of its fliers was initially delayed to check that the union was not criticizing the administration.
“Once it was checked through, just to make sure the union wasn’t indicting Cincinnati State but it was just offering an opportunity to the workers, then it was OK,” Colton said.
Davidson said such content-based considerations in approving fliers surpass time, place and manner restrictions and suggest prior restraint.
“Definitely it’s not just time, place and manner,” she said. “Now we’re more into licensing and content discrimination.”
Student Press Law Center Executive Director Mark Goodman said Cincinnati State is “lucky it hasn’t been sued over such unconstitutional practices.
“This kind of approval process based on content is exactly what the First Amendment was intended to prohibit,” Goodman said.
Going to court
Without specific, content-neutral guidelines for evaluating flier approval or space requests, courts have sometimes ruled such policies overly broad and unconstitutional.
“Because of the nature of public schools being state institutions, it’s a lot more questionable from a legal perspective whether in fact they can have these kind of restrictions, assuming they go beyond reasonable time, place and manner restrictions, when time, place and manner does not include content,” Kirtley explained.
In September 1999, a federal judge in California enjoined Irvine Valley College in the South County Community College District from enforcing its student speech policies, which prevented students from gathering in all but a few designated areas on campus, banned microphones and other amplifiers at rallies, and prohibited students from demonstrating in front of the heavily trafficked student services center.
That policy was replaced the next year with another that required students to reserve outdoor space for holding events and to obtain the college president’s approval before distributing any written material on campus.
Students sued again, and, in April 2002, a federal judge ruled that “because the provisions provide the college presidents with absolutely no standards to guide their decisions, they are unconstitutional.”
In 2002, before going to court, the University of Wisconsin at Whitewater rescinded its policy restricting signs and posters on campus and requiring 24-hours notice before any protests after a community outcry.
Still, 73 percent of public colleges have policies that “clearly and substantially” restrict student speech, according to a 2006 FIRE report.
Fight for input
The proposal of similar rules at the University of California at San Diego has mobilized students to block their adoption.
Near the end of the term, before final exams week, an e-mail notified students June 8 about proposed revisions to the school policy manual that would require any gathering of 10 or more people to acquire a reservation and hold one student liable for any damage that occurs in that activity. The deadline for accepting student input on the revisions was set for June 25.
Rising sophomore Juan Vazquez designed fliers, created a Web site and started a group on the social networking site Facebook.com.
“This is a true violation of our crucial rights of expression and it must be stopped,” he wrote on the message board of the Facebook group, which quickly grew to more than 1,200 members. “Do not let the administration control your ability to express your opinion! Do not let this policy take away your power to exercise the now endangered right of free speech! Do not let yourself and your community be silenced at your university!”
In the middle of finals week, fewer than 24 hours after the Facebook group was created, more than 80 people came to a question-and-answer session with the vice chancellor June 12, when he agreed to extend the deadline for comments on the revisions to December, Vazquez said, and promised that students would be included on the committee considering the revisions.
“Freedom of speech is particularly important,” Vazquez said in a phone interview, “because if we can’t assemble with more than 10 people, then we can’t do any kind of activism on campus.”