Sinclair students sue over protest sign ban
July 14, 2012
Dayton Daily News
Sinclair Community College's effective ban on protest signs and leafleting at campus rallies has put it at the center of a nationwide controversy over limits on free speech and public assembly at institutions designed to be marketplaces of ideas.
Earlier this month, two students and a speaker at a June 8 "Stand Up for Religious Freedom" rally at Sinclair's downtown Dayton campus filed suit in U.S. District Court, claiming campus police violated participants' First Amendment rights by ordering them to put down their protest signs. The college also faces a federal lawsuit filed last year by anti-abortion demonstrators stemming from their arrests by campus police at a 2009 rally.
Colleges in recent years have adopted what some are calling "speech codes."
These codes limit how and where students can protest. Civil libertarian groups have mounted a number of constitutional challenges to these rules, saying they violate basic student rights.
In addition to the lawsuits, Sinclair is drawing attention from a Philadelphia-based civil rights organization known for its "worst college" list for enforcing students' rights of free speech. Although the list includes only big universities, the group's senior vice president recently wrote Sinclair President Steve Johnson demanding that the school rescind its campus access policy, which gives campus police license to ban protest signs and the distribution of pamphlets.
Sinclair "must immediately disavow this profoundly unconstitutional order and make clear that such action will never be taken" again, Robert Shibley of the nonprofit, bipartisan Foundation for Individual Rights in Education, or FIRE, wrote in a June 15 letter. "We are prepared to use all resources at our disposal to achieve a just resolution in this case."
Sinclair officials are reviewing the policy, which they say is intended to balance free speech rights with the safety of students.
Johnson told the Dayton Daily News that Sinclair, which has about 23,000 students at its downtown campus, is committed to being "a bastion of free speech" and the open exchange of ideas. "For God's sake, this is a college campus," he said. "It's an American college campus."
But Johnson said the police "have the latitude to make decisions about those things that would affect the safety and security of the situation," including banning signs.
Colleges have an obligation to protect students, employees and visitors in an era when acts of domestic terrorism have captured headlines, said Johnson. Concerns about campus violence have spiked, he said, since the 1999 massacre at Columbine High School in Colorado and the 2007 Virginia Tech shootings in which 33 people died.
Columbine caught the attention of educational institutions nationwide, Johnson said, serving as a 9/11 to campuses everywhere. "And Virginia Tech was the second 9/11."
Although Johnson said he can't imagine how "words on (a) sign would make a person unsafe," he did say protest signs could be used as weapons.
"It has nothing to do with what was printed on those objects," he said, "but what those objects could be used for."
Civil libertarians say that's not a good enough reason to limit free speech.
FIRE and the American Civil Liberties Union say Sinclair's policy amounts to a "speech code" of the kind that has faced constitutional challenges across the nation.
"We don't think this is a very difficult decision to make," Shibley said. "The Constitution is very clear on this, and so is the Supreme Court. It would be ridiculous to go to court to validate one of the most fundamental rights we have as Americans. I think it would be a waste of time and Ohio taxpayers' money."
Speech codes and ‘civility oaths'
Sinclair is not alone in enacting policies that have riled free-speech advocates.
"Since the mid-1980s our institutions of so-called higher learning have been instituting ever-stricter speech codes that make it a punishable act for one student to offend another by uttering anything deemed by the listener to be demeaning," FIRE Chairman Harvey Silverglate wrote in a letter published July 2 in the Boston Globe.
Speech codes that have made the news recently include:
• A federal judge last month struck down a University of Cincinnati policy establishing a small "free speech zone" on the edge of campus for protests and petitioning.
• Harvard University asked its freshmen last fall to sign a pledge to act with integrity, respect and civility. FIRE included Harvard on its 2012 list of the 12 worst colleges for free speech, saying the "civility oath" is "unprecedented and ill-considered."
• Johns Hopkins University's equity policy declares that "rude, disrespectful behavior is unwelcome and will not be tolerated." Johns Hopkins also made FIRE's worst-colleges list. (UC is the only Ohio school that made the list.)
Civil libertarians say college officials can rein in student speech that crosses the line into menacing and harassment, or which disrupts the classroom. Gary Daniels of the ACLU Ohio said that just as free speech doesn't extend to yelling "fire" in a crowded theater, "you can't stand up in a crowded classroom and say, "Vote for Obama" or "Vote for Romney."
But it becomes "extremely problematic from a constitutional standpoint" when colleges and universities ban certain kinds of speech, even if it's offensive, or restrict it to a certain area, Daniels said.
"The burden is always on the government as to why they need to restrict free speech," Daniels said. "You'd better have a compelling reason why you feel a need to limit somebody's speech."
Sinclair's five-page campus access policy says constitutionally protected rights to speech and assembly "shall be enjoyed" by students, faculty, staff and visitors. "Free discussion of subjects of either controversial or noncontroversial nature shall not be curtailed."
But the policy requires written notice of outside speakers three weeks in advance, and approval by Sinclair's president or a designee.
Only faculty, staff and "recognized student organizations" can request outside speakers. Political fundraisers and religious services are prohibited. The policy also requires a five-day notice if outside groups wish to distribute literature.
The policy doesn't specifically ban — or even mention — protest signs. But in his June 15 letter to Johnson, Shibley noted that campus police chief Charles Gift told The Clarion student newspaper that the college has enforced a sign ban since 1990 because signs can be disruptive.
"The policy is not all-inclusive," the paper quoted Gift as saying. "There are numerous situations that could arise that are not specifically addressed in the policy itself. (The police) retain full discretion to deal with these situations as they come up."
Police interpretation of the campus access policy resulted in the May 20, 2009, arrests or detention of five anti-abortion activists from the Wisconsin-based Faithful Soldiers School of Evangelism. Last year the five demonstrators filed a federal lawsuit against Sinclair and four of its police officers, alleging violations of free speech and assembly, unlawful seizures, excessive force by police and malicious prosecution. The suit is pending and Sinclair has denied the allegations.
In October 2010, Sinclair officials prohibited student Ethel Borel-Donohue from distributing pamphlets about a purported link between abortion and breast cancer. The American Cancer Society says scientific research hasn't found such a link. FIRE took up Borel-Donohue's case and wrote letters to Sinclair officials saying the campus access policy unconstitutionally bans the distribution of literature in classrooms after class time. In May 2011, Sinclair trustees Chairman Lawrence Porter told FIRE the access policy and student conduct code were being reviewed "for possible modifications."
Issues don't have to be controversial to run afoul of the policy.
FIRE complained again about the policy in February after campus police shut down an attempt by student David Sparks to conduct on-camera, man-on-the-street interviews about people's views on saggy pants.
Sparks told the Daily News he was sound-checking his camera equipment and hadn't begun interviewing when a campus police officer ordered him to get off Sinclair property.
"I'm not a paparazzi or anything," Sparks said. "There was no complaint about what I was doing, or attempting to do. I'm sure it was me spotted on (security) camera by these guys (the police). How ironic is that?"
Sparks, an independent journalist who runs the Dayton Informer blog, said the encounter was "a reflection of institutional tyranny. A college courtyard should be a place where open and free thought should be celebrated. They should have said, ‘Here's a guy practicing journalism. Let's give him a sandwich,'" Sparks said.
The most recent controversy arose June 8, when Sinclair's Traditional Values Club hosted a Stand Up for Religious Freedom rally to protest aspects of health care reform related to mandatory insurance coverage of contraception, which is contrary to Catholic teachings. Participants waved flags and carried signs with slogans including, "Our rights: God — not gov't — given!" and "Pregnancy is not a disease/Contraception is not health care."
Campus police repeatedly warned participants to put their signs on the ground and to cease distributing pamphlets on Sinclair property. They eventually complied.
"There were really a lot of unhappy people after the rally because they were told to put their signs down," said organizer Ruth Deddens. "The people were being totally peaceful. Nothing was out of order — except the police."
A Dayton Daily News review of campus access requests since January 2011 shows most requests are for noncontroversial events, and only a handful were not approved. Most of the politically charged events were hosted by the Traditional Values Club and the Brite Signal Alliance, a gay rights club frequently at odds with the traditional values group.
The sign ban seems to be applied regardless of the content of the demonstrators' message. The Clarion reported that two people protesting a Traditional Values Club event in February about "overcoming" homosexuality were ordered to put down signs reading "You can't pray away the gay" and "Love gay, cure bacon."
The balancing act between protecting the safety of those on campus and preserving students' rights continues to play out in the courts.
But even as campus shootings have raised awareness to the dangers inherent on college campuses, courts are reluctant to uphold blanket prohibitions on items like signs or distributing leaflets, said University of Dayton law professor Richard Saphire.
"The university does have some ability to restrict speech based on public safety," he said. But "it's hard to see how a flat ban on signs could be at all related to legitimate public safety interest. I guess you could say ‘no signs mounted on swords' because you're not concerned about the signs, but the thing it's attached to."
Saphire said colleges cannot prohibit speakers or demonstrations based on the content of the event or the views of the speaker, and pre-approval requirements like Sinclair's increase the risk that will happen.
In general, outside groups using campuses as a protest venue have received less support in the courts, while on-campus groups are given more freedom, the ACLU's Daniels said.
In the University of Cincinnati case, a federal judge last month ordered officials to rewrite a policy that restricted student speech to a small "free speech zone." The case stemmed from an attempt by UC's Young Americans for Liberty to pass petitions in support of a state constitutional amendment to prevent unions from collecting dues without individual workers' consent.
But in another federal court case, a U.S. District Court judge ruled against a labor union that was prohibited from displaying a 20-foot inflatable rat on Miami University's campus in a labor protest. The union contended the area was a public right-of-way, but the judge ruled it was part of the Oxford campus and therefore the university could limit its use.
During another protest last fall, Miami fenced off a small portion of a sidewalk on campus for the Westboro Baptist Church, known for its anti-gay agenda. Members holding multiple signs drew counter-protests from thousands of students.
Miami spokeswoman Claire Wagner said the church contacted campus police and worked within the guidelines the university outlined. "Being a university, freedom of speech is an important element," she said.
‘You can't do what we did'
Johnson downplayed Sinclair's review of the campus access policy, saying it is one of many policies the college "refreshes" at any given time.
In a March press release, the college said its goal was to make any changes by the start of the 2012-13 school year.
Shibley said he's glad the policy is under review, but questions why it is still in place.
"There's no reason (lifting the sign ban) should take any longer than the time it takes for me to say this sentence to you," he said.
Shibley said he has never heard of a college banning protest signs. Carrying protest signs and distributing pamphlets is an American tradition dating to the Revolution, he said."
Shibley said it's ironic that many of today's top college and university officials are Baby Boomers who went to school at a time when campuses were hotbeds of protest.
"It's one generation telling another, ‘You can't do what we did,'" he said.
Campus access policies:
- Miami University: Visitors may walk through campus, but authorization is required from Miami or a student organization to make speeches, presentations, displays, etc.
- Ohio State University: Activities on campus must be sponsored by a student group, university department, faculty or staff. Sponsor must be present and a sign representing the sponsor shown at all times. Official confirmation of event must also be on hand.
- Wright State University: Faculty, staff and students "free to discuss, debate and express" ideas in public as long as they do not disrupt university functions. Sponsors must register events no less than 24 hours in advance.
- University of Cincinnati: New rules as of June 12 after court struck down university policy say that students can hold activities and solicit signatures without any prior notice in all open areas of campus. Groups with more than 25 students are asked to notify the university.
- University of Dayton (private): Students can peacefully protest in a way that doesn't disrupt the business of the university. As a private university, UD requires external groups to contact the Office of Student Life, which determines whether the event has an educational benefit for students.
- Sinclair Community College: Persons on campus may expect to be asked their purpose, and if they have no "legitimate business" on campus, police will ask for identification and request the person to leave. "The freedoms of speech and assembly guaranteed by the United States and State of Ohio Constitutions shall be enjoyed by the students, faculty and staff of Sinclair Community College, as well as members of the community in the use of facilities on campus." "However, because there is no absolute right to assemble, to make or hear a speech or to make presentations, at any time or place regardless of the circumstances," events can be limited. Written approval must be obtained from the president or a designee before a student group or faculty or staff member invites a speaker to campus. Requests must be made three weeks in advance.