Columbus State Community College's Solicitation Policy Challenged in Court
August 29, 2013
by Susan Kruth
Columbus State Community College (CSCC) student Spencer Anderson has joined with Alliance Defending Freedom (ADF) to challenge (PDF) the college’s solicitation policy, which both limits students’ expressive activities to less than one percent of the Ohio campus and requires would-be speakers to obtain written permission one day in advance. Anderson’s lawsuit, filed Monday in federal court, includes claims that CSCC’s policy is unconstitutional on its face and that it was selectively enforced against Anderson because of his religious, pro-life message.
CSCC’s solicitation policy (PDF) governs the “dissemination or posting of any verbal, written, or pictorial material such as flyers, notices, requests to pledge or join any organization ….” Though it appears in the Faculty Handbook, Anderson’s complaint alleges that “[i]t is the College’s policy and practice to apply the solicitation policy to individual students ….” Under a subheading titled “Assembly,” the policy describes the college’s two “designated areas for public speech and assembly” and states: “All organizations and individuals must request to use this space for public speech and solicitation and must do so in writing at least one business day in advance.”
According to the complaint, Anderson timely requested permission to distribute literature on campus in July and, after an examination of his flyer by two administrators, was instructed to use just one of the designated speech areas. Because he was limited to that location, few students passed by, and Anderson wasn’t able to share his views with an actual audience. Anderson had encountered similar difficulties sharing his pro-life message on campus in April.
But Anderson claims that he witnessed other students and student groups openly distributing literature and even asking for donations for other causes outside of the designated zones; he says that CSCC administrators declined to enforce the solicitation policy against these students despite being aware of their activities at the time.
As a public college, CSCC is bound by the First Amendment. Anderson’s attorney, Matthew J. Burkhart, reviews the factors that determine whether a prior restraint on speech—like CSCC’s notice-and-permission requirement—is constitutional:
Under the First Amendment’s Free Speech Clause, a prior restraint on citizens’ expression is presumptively unconstitutional, unless it (1) does not delegate overly broad licensing discretion to a government official, (2) contains only content and viewpoint neutral reasonable time, place, and manner restrictions, (3) is narrowly tailored to serve a significant governmental interest, and (4) leaves open ample alternative means for communication.
If Anderson’s allegations are accurate, CSCC has failed on all counts. First, the complaint explains:
Defendants’ Solicitation Policy and associated practices provide no guidelines or standards to limit the discretion of College officials in granting, denying, relocating, or restricting requests by students to engage in expressive activity.
Policies like CSCC’s that grant administrators broad discretion give them ample opportunity to allow or disallow expression based on the content or viewpoint that the speaker wishes to share, and CSCC administrators may very well have taken advantage of that opportunity.
Second, according to Anderson, CSCC administrators examined his flyers in advance and asked specific questions relating to the content and viewpoint, such as whether the flyers were affiliated with another group and whether that group had a website. Further, restricting expressive activities to one percent of the campus is unlikely to be deemed a reasonable “time, place, and manner restriction” in court—for practical purposes, it’s not any better than the University of Cincinnati free speech zone that was ruled unconstitutional in August 2012.
Third, though colleges all have an interest in making sure that classes and school activities aren’t disrupted, Anderson’s plans for leafleting were quiet and peaceful. It’s likely that students talking with each other on their way to classes were making more of a commotion. Common sense tells us that it is not necessary to ban leafleting from 99% of a public college campus in order to prevent disruption of the college’s daily operations.
Finally, the policy prohibits an enormous amount of spontaneous expression—arguably all spontaneous expression. On its face, the policy requires notice and approval of the “dissemination … of any verbal [or] written … material.” The policy provides examples “such as flyers” and other items, but it provides no outer definitional boundaries. And while notice and approval is required for speech within the designated zone, the policy completely disallows public speech and assembly outside the designated zone. This seemingly boundless prohibition of expression on CSCC’s campus cannot be said to provide ample alternative means of communication.
Additionally, as FIRE has noted before, requiring advance notice for political speech in particular prevents students from engaging in real-time discussion of current events. Delayed messages on ongoing controversies are often less effective both for students wishing to share their viewpoints and for students looking for information. Of course, this is an especially grave concern on college campuses, which the Supreme Court has called the “marketplace of ideas,” and is where young adults learn how to be proactive citizens.
On that point, the complaint alleges a troubling remark from CSCC’s human resources department:
Defendant [Steven] Zelenka told Mr. Anderson that students must submit a reservation request form pursuant to the Solicitation Policy because when a student hands out a flyer on campus the College no longer considers him a student, but considers him an “activist.”
CSCC students, it would seem, are not meant to be active, are not meant to challenge each others’ views or share information with each other in the hopes of sparking a discussion or changing someone’s mind. But this idea is anathema to the purpose of college and, needless to say, in terrible conflict with the principles of the First Amendment.
Stay tuned for updates here on The Torch as the case continues.