Free speech, behind the line

What’s the price tag for a “free speech zone” on campus? For several colleges that have settled against lawsuits in recent years, it’s been tens of thousands of dollars.

Across the country, colleges are attempting to restrict students’ free speech to certain times and places, most notably in free speech zones — areas on campus specifically designated for demonstrations or protests. In at least six cases filed by the Foundation for Individual Rights in Education in the past two years, students have sued on the basis of the First Amendment.

So far, in five of those cases, the colleges have settled for hefty sums of money — a move that free speech advocates say signals the further toppling of more free speech zones.

“It shows you the degree of the confidence they have in their legal position,” said Adam Goldstein, Student Press Law Center attorney advocate. “Somebody talks big until they have to prove it. People who genuinely think they aren’t breaking the law wouldn’t consistently settle before going to court.”

For administrators, the zones are a way to allow a space where students know they can freely express their opinions without disrupting classroom environments — or other students.

Some students and other free speech advocates, however, see the restrictions on speech as impeding their rights of free expression.

“The Supreme Court has said that the government can put time, place and manner restrictions on expressive activity,” said Catherine Sevcenko, associate director of litigation for FIRE. “For instance, a school can say that you cannot have a protest outside the library during finals, but there is no significant government interest to restricting expressive activity to a tiny percentage of a college campus.”

Record of victories in court for First Amendment

The lawsuits that have been settled in court are part of the ‘Stand Up For Speech Litigation Project,’ a project by FIRE that aims to “eliminate unconstitutional speech codes through targeted First Amendment lawsuits.”

The latest settlement was in September, by Dixie State University in Utah.

Three students filed a lawsuit, with FIRE’s help, against the university in March that alleged their free speech rights were violated because administrators would not allow them to distribute flyers that criticized President Barack Obama, former President George W. Bush and Cuban revolutionary Che Guevara.

Dixie State administrators said the flyers, which were to promote the students’ Young Americans for Liberty chapter, violated the school’s policy because they disparaged and mocked individuals. Administrators also told the students that the Young Americans for Liberty’s “free speech wall” event would have to take place in the free speech zone, which comprised about 0.1 percent of campus, according to the complaint.

Administrators have since agreed to revise campus policies, including the free speech zone and the flyer approval process.

Before the latest settlement at Dixie State, “we abolished free speech zones at Modesto Junior College, [University of] Hawaii at Hilo, Citrus College and Cal Poly,” Sevcenko said.

The colleges all settled: Modesto Junior College, Hawaii at Hilo and Dixie State for $50,000, Citrus College for $110,000 and Cal Poly for $35,000.

“In the case of Cal Poly, they required that students get a permit to speak — of course the government doesn’t get to decide who speaks and who doesn’t,” Sevcenko said.

In July, Cal Poly had agreed to settle a lawsuit filed by student Nicolas Tomas, who was prevented from handing out fliers against animal abuse by university police.

Tomas has claimed he was told he would have to wear a badge, signed by an administrator in the Office of Student Life, while distributing the fliers. The university also required students to stay in the campus’ free speech zone — which, according to FIRE, constituted less than 0.01 percent of campus — when distributing materials and speaking out, and to register in advance for any activities outside. The Office of Student Life also had to approve all fliers and posters before distribution.

In the settlement, four months after the lawsuit was filed, Cal Poly denied any wrongdoing, saying the settlement was to “buy its peace and to avoid the further costs of litigation.” Still, the university agreed to revise its policies and to train officials in the Office of Student Life and the campus police in the revisions.

Another college is currently undergoing litigation being brought by FIRE: Blinn College in Texas. Sevcenko said she was confident that its free speech zone will also be removed.

“The precedent is so clear on this that that’s the reason that they are settling so fast,” Sevcenko said. “That’s why they are amenable to policy changes, there is just no plausible legal argument on the other side, at least we have not heard one yet.”

As an example of the precedents for these cases, Sevcenko pointed towards a 2012 ruling, Univ. of Cincinnati Chapter of Young Americans for Liberty v. Williams, that overturned the University of Cincinnati’s policy to limit students’ speech to a free speech zone that constituted 0.1 percent of campus.

The case, in the U.S. District Court for the Southern District of Ohio, found that a policy where students had to ask permission five days in advance of exercising speech was unconstitutional.

“It is offensive — not only to the values protected by the First Amendment, but to the very notion of a free society — that in the context of everyday public discourse a citizen must first inform the government of her desire to speak to her neighbors and then obtain a permit to do so,” U.S. District Judge Timothy Black wrote in his opinion.

Without a compelling government interest, free speech zones do not stand on the basis that students have other methods of communicating off campus, Goldstein said.

“Creating a free speech zone is like saying ‘we’re going to censor everything except for this circle’ — you can’t do that,” Goldstein said. “The existence of alternative modes of communication is not a defense to an accusation of censorship.”

In June, Greg Lukianoff, president and CEO of FIRE, testified at the U.S. House Subcommittee on the Constitution and Civil Justice. The hearing, “First Amendment Protections on Public College and University Campuses,” explored the role of free speech at universities and schools across the country.

Lukianoff argued that establishing a law preventing public colleges from establishing ‘free speech zones’ would be the logical solution to violations of the First Amendment.

“Congress should pass a law declaring open areas on public campuses as ‘traditional public forums’ which would end absurd and tiny free speech zones,” Lukianoff said.

Statewide bans

The fight against free speech zones has also extended to state legislatures. Two states, Virginia and Missouri, have banned the free speech zones at public colleges and universities.

In April 2014, Virginia became the first state to enact a ban on free speech zones. The bill passed both houses of the state legislature unanimously.

In Missouri, state Sen. Ed Emery, a Republican, introduced a bill this year to ban free speech zones at state universities.

“I was talked into looking at it by some constituents who are liberty-minded folks. They wanted to make sure that that was protected in Missouri,” Emery said.

“I began to talk to the people from FIRE and learned how this legislation might help make sure that free speech wasn’t threatened.”

The bill, which passed the state Senate unanimously, was signed into law on July 15 by Missouri Gov. Jay Nixon.

FIRE is continuing to work with state legislatures to introduce more bills to limit free speech zones and protect student rights.

“Opening up campuses for free speech is an important step towards ensuring that colleges and universities continue to produce the robust debates and discussions necessary for learning,” said Robert Shibley, executive director of FIRE, in a statement released after Missouri’s ban was passed.

Emery said he’s worried that these days in education, a “liberal mindset” is more about silencing the opposition.

“Too much of today’s education is not about learning,” he said. “It’s about attempting to learn one particular view. It’s about consensus and not discovery.”

Restrictions in high schools

While this debate on college campuses has resulted in fairly consistent court decisions and settlements, the rules for free speech on high school grounds appear to lean more heavily in favor of the administrators’ rights.

The debate surrounding students’ free speech and administrators’ desire to protect a learning environment is also applicable in high schools, but lawsuits are less likely because high schools have a greater extent of control over maintaining order to ensure instructional time is undisrupted.

Still, some lawsuits against high schools over students’ rights to the First Amendment on school grounds do make their way to court. In May, a lawsuit that centered on religious preaching by a Washington state high school student resulted in a compromise between the student and the high school.

Michael Leal, a June graduate of Cascade High School, filed a lawsuit in November 2014 against Everett Public Schools in which he claimed that he was asked to stop handing out religious materials.

Cascade High School attempted to regulate the material Leal was passing out, saying that only original content by students could be handed out at specific times at the entrances of the school.

The judge in the case, U.S. District Judge Thomas Zilly, ruled that non-original content could be handed out, but maintained that reasonable restrictions on the time and place materials can be distributed would be allowed to stand.

“The district’s policy allows students to pass out written materials before and after school at school entrances and exits, and those provisions remain in effect after Judge Zilly’s decision,” said Sarah Heineman, an attorney for Everett Public Schools.

Goldstein said when a blanket restriction is placed upon time and place of free speech, any speech could have the threat of being disruptive to the mission of high schools to educate.

“Stuff that would create a risk of a disruption, stuff that would make it difficult to hold classes — that’s really what the extent of authority is in high schools,” Goldstein said. “If students get into the classroom and are sitting in their desks, that’s the extent of what speech control high schools need to have.”