Judge: U. of Cincinnati speech code likely unconstitutional

OHIO — TheUniversity of Cincinnati likely violated students’ First Amendment rights whenit restricted members of the UC chapter of Young Americans for Liberty fromcirculating a petition across campus, the U.S. District Court for the SouthernDistrict of Ohio ruled Tuesday.

Judge Timothy Black issued a preliminary injunctiondeclaring that the university’s free speech policies are a form ofunconstitutional prior restraint and are unconstitutionally vague. If thedecision is not overturned, UC will be required to amend its policies in linewith the court’s order.

UC students filed suit in February, claiming that the schoolwas in the wrong when it confined their ability to collect signatures for apetition to make Ohio a “right-to-work” state.

Under the university’s “use of facilities” policy, thestudents were required to gain prior permission to gather signatures in a partof campus that is designated as a “Free Speech Area.” The area consists ofapproximately 10,000 square feet — about 0.1 percent of the school’s WestCampus.

If any signature gathering had occurred anywhere else oncampus, the students could have been arrested.

The students contended that, after complying with UC’sregulations, they were only able to collect one signature during their day ofwork, due to low pedestrian traffic in the Free Speech Area.

Central to Tuesday’s decision was the clear distinctionBlack placed between a designated and a limited public forum.

Citing Pleasant GroveCity, Utah v. Summum, a 2009 case decided by the U.S. Supreme Court, Blackdefined a designated public forum as one where the government makes available aspecific piece of property to the public at large. A limited public forum, onthe other hand, is one that is restricted for use by certain groups or limitedto the discussion of certain topics, he wrote.

While UC had argued that both the Free Speech Area and otherparts of campus should be classified as limited public fora, the court agreedwith the Chapter of Young Americans, ruling that those areas were designatedpublic fora when applied to student speech.

In response to UC’s contention that it should be able tolimit student speech to certain topics, Black wrote that “such a theory is ananathema to the nature of a university, which is ‘peculiarly the marketplace ofideas’ and runs contrary to the Supreme Court’s holding that ‘the vigilantprotection of constitutional freedoms is nowhere more vital than in thecommunity of American schools.’”

The court also addressed the inconsistency of theuniversity’s policies for prior approval to use the Free Speech Area.

When the students first filed suit, they alleged in theircomplaint that web pages and administrators at UC had provided inconsistenttime frames for a prior notice requirement before any “demonstrations,picketing and rallies” took place. For example, an email sent to YoungAmericans for Liberty set the time requirement at five business days, while aseparate university website said it was 15.

On April 24, the school announced that it had revised itsExpressive Activity Policy to include a three-day prior approval requirementthat “supersedes any other written policy or actual practice that isinconsistent with it.”

Despite this, the court held that the advanced noticerequirement amounted to a form of unconstitutional prior restraint.

“Such expansive permitting schemes place an objective burdenon the exercise of free speech,” Black wrote. “Further, they essentially banspontaneous speech.”

Additionally, Black ruled that the university’s policyimposing a requirement that all “demonstrations, picketing and rallies” mayonly take place in the Free Speech Area was unconstitutionally vague, giventhat the regulations did not provide specific criteria regarding what constitutesthese events.

As part of the court’s preliminary injunction requiring theschool to revise its student speech policies, UC will, among other remedies,have to eliminate its prior approval mandate for signatures and allow studentsto solicit signatures of petitions in any designated public forum.

Executive Director of Ohio’s 1851 Center for ConstitutionalLaw Maurice Thompson, who represented the students, applauded the court’sdecision.

“I think today’s decision really set in stone that the FirstAmendment applies on college campuses, especially when it comes to politicalspeech,” he said. “The court did what we asked it do — it reaffirmed that openspaces on campus will almost always be public fora, which was a little bit indoubt in this case.”

Thompson speculated that the reason why the court’sinjunction on Tuesday was preliminary — rather than permanent — was that itneeds more time to consider the merits of UC’s April 24 policy revision.

He added that the university has “used a labyrinth ofpermission regulations to regulate your ability to speak and criticize thegovernment” throughout the case.

UC spokeswoman M.B. Reilly said that the preliminaryinjunction was “a step in the process. That process will move forward, andwe’re analyzing our options at this time.”

She declined to comment further.

Like Thompson, Frank LoMonte, executive director of theStudent Press Law Center, was also pleased with the court’s decision.

“This was a very resounding validation of First Amendment rightsfor students to express their opinions on the grounds of a college campus,” hesaid. “It showed that you can’t ghettoize speech into a remote corner of campusand get away with it.”

However, LoMonte did express concern with some parts of theruling.

Traditionally, he explained, courts have made no distinctionbetween the concept of a designated and a limited public forum — essentiallydefining both as areas that the government cannot interfere with once it hasdetermined what individuals and subjects may use it for speech.

Recently, though, some courts have begun to classify alimited public forum under a lower speech standard than a designated publicforum, he said.

“It seems like we’re stuck with the fact that the courts aredeeming the limited public forum to basically be a meaningless term,” LoMontesaid. “From what they’ve said, your rights in a limited public forum are nodifferent than if no forum existed at all.”

LoMonte also believes that one may reasonably interpretTuesday’s ruling to say that, while designated public fora on college campusesare intended to provide the maximum speech rights to students, they are notmeant to provide those same rights to the community at large.

The decision “seems to include a bit of a mash-up betweenterms that benefits students but perhaps disadvantages speakers from thegeneral public,” he said.

The university can now either await a permanent injunctionfrom the district court or petition the 6th U.S. Circuit Court of Appeals forreview.

UC’s policy “reinforces the idea that you have to get thegovernment’s permission days or even weeks in advance to criticize thegovernment,” LoMonte said. “That sends a message of intimidation that willdeter all but the most determined people from speaking up, and that’s justwrong.”

By Seth Zweifler, SPLC staff writer