An ongoing debacle at Modesto Junior College (MJC) in California provides as good an occasion as any for a little primer on the concept in First Amendment law known as “time, place, and manner” — if only because the MJC administration got it about as wrong as it possibly could inprohibiting students from handing out copies of the U.S. Constitution on a public area of the MJC campus on Constitution Day.
If you haven’t seen FIRE’s video, recorded by MJC student Robert Van Tuinen, you can (and should) watch it here.
Among its highlights are a confrontation with an MJC police officer, who tells Van Tuinen that “as a student on campus passing out anything whatsoever you have to have permission,” and a surreal conversation with MJC administrator Christine Serrano, who responds to his request to exercise his right to free speech by consulting a big, bureaucratic-looking binder and telling him the “free speech area” might not be available for days or weeks.
Amazingly, it gets worse from there. Students wishing to use the campus’ public spaces for expressive activity are made to fill out a request form, which requires five business days for processing. Once approved, any free speech activity must be confined, per MJC policy, to the tiny concrete stage pictured above.
Responding to the firestorm of criticism it has received in the media, MJC explained on its Facebook page in part that “in addition” to MJC’s designated free speech area, “people can distribute material in the areas generally available to students and the community as long as they don’t ‘disrupt the orderly operation of the college.’” This sounds reasonable, and similar language to that effect can be found in the Yosemite Community College District (which includes MJC) policy on Time, Place, and Manner. But that same policy also states that “the Colleges of the District are non-public forums, except for designated areas generally available to students and the community.” The policy further makes clear that the previously referenced concrete pad is the only specially designated area for free expression at MJC. What’s more, MJC’s policies state that failure to comply with their strict limitations can result in disciplinary consequences. This is flatly incompatible with the First Amendment. The grounds of public colleges like MJC may not by administrative decree be transformed into non-public forums, where the full freedoms of the First Amendment are the exception and not the rule.
So what about that “time, place, and manner” doctrine? The Supreme Court has declared, including in the landmark 1989 case Ward v. Rock Against Racism, that such restrictions on freedom of expression can be permissibly exercised by public institutions. Those regulations, however, must be “narrowly tailored” to “serve a significant governmental interest” and leave open ample alternative channels for communication. As the censorship at MJC shows us, though, colleges often take the mere existence of the right to control time, place, and manner as granting them carte blanche to dictate the course of all expression on campus as they see fit. When challenged on their unconstitutional censorship, like the administration at MJC was, they’re often reduced to repeating the phrase “time, place, and manner” over and over again, as if doing so magically makes unconstitutional censorship somehow defensible. As the MJC administrator in the video informs Van Tuinen:
We have a time, place, manner. It’s a time, place, and manner; that’s what it’s called. And that’s the free speech area, and the free speech area is over there in front of the student center, in that little cement area. That’s the time, place, and manner free speech area for anybody that’s going to be on campus, which comes through my office and they would need to fill out an application.
This is entirely unmoored from common sense, not to mention decades of case law making clear that the First Amendment is fully binding on public college campuses. What “significant government interest” is served by using your police department to prevent a student from distributing copies of the Constitution? How is declaring a single concrete lot as your “free speech area” while declaring the rest of your campus to be a non-public forum “narrowly tailored”? And when your campus is declared to be a non-public forum, what alternate channels for expression does that leave students?
Sadly, this is far from the first time we’ve seen colleges make a mess of time, place, and manner doctrine. As I wrote previously for PolicyMic, the University of Alabama did so as well, ordering a group of pro-choice student demonstrators to request a permit to distribute leaflets on campus, or else face arrest. FIRE’s case archives provide numerous further examples. But it’s hard to think of a more breathtakingly wrong example than the one set by Modesto Junior College. In that way it’s provided a powerful lesson on the Constitution — and just in time for Constitution Day, too.