FIRE's Second Letter to President Hardesty
April 12, 2002
April 12, 2002
David Hardesty, President
West Virginia University
Office of the President
PO Box 6201
Morgantown, West Virginia 26506
Dear President Hardesty,
We at FIRE were pleased to see that you agreed with our previous letter in which we asked you to liberalize West Virginia University's (WVU) free speech policy. The ad hoc committee you appointed has come up with a proposal that substantially improves the environment for discourse at WVU. We appreciate the efforts that you and the ad hoc committee have made in the past months and are heartened to see that we are far closer to what we hope is our common goal of a free and open WVU.
Although the proposed policy is a step in the right direction, it is far from ideal, and it even contains several provisions of questionable constitutionality. The most troubling provision states that the vice president for student affairs will hold students responsible for security costs for an event if, in his estimation, the student event will require the presence of Public Safety officers. This provision sets out no objective criterion for when the vice president should use this power to tax speech. This provision amounts to unconstitutional "standardless licensing," and it creates the potential for unlimited viewpoint discrimination and for other forms of abuse that would chill speech. More importantly, it confers too much discretionary power upon the vice president for student affairs and is, therefore, unconstitutional on its face.
In Forsyth County v. The Nationalist Movement, 505 U.S. 123 (1992) a provision of a county ordinance declared that the cost of protecting demonstrators on public property should be borne by the demonstrators if the cost exceeded the usual cost of law enforcement. A county administrator was empowered to assess the differing strain on public resources that various demonstrations would have and adjust the security costs accordingly. In overturning this ordinance as facially unconstitutional, the Supreme Court explained that any policy that taxes speech based on an official's estimation of the likely disruption necessarily requires an impermissible review of the content of the message. Under Forsyth, the provision here would be considered a content-based tax on speech and, therefore, unconstitutional. Language stating that these decisions should be content neutral is not sufficient to overcome the content-based analysis that is absolutely required to implement this provision.
FIRE believes that universities should welcome free speech, including protests and demonstrations, as a valuable part of the educational environment. Students already pay for the campus security they enjoy through tuition and fees. Part of the reason they pay is to protect them in the expression of their political beliefs. If there is any charge for expressive activities, it should be borne by all students, not by the individual groupsâ€"otherwise students will, in essence, be rewarded for their lack of public activity and taxed for being politically active. This cannot possibly be WVU's intention. While we would be amenable to security charges for especially large events (like concerts or other commercial events), we can see no reason why peaceful demonstrationsâ€"the only kind allowed under these rulesâ€"should be taxed for their expression.
Another provision that is likely to be found unconstitutional states, "Picketing with more than 15 participants is considered a protest or demonstration," and, as a "demonstration," would have to be conducted in one of the free speech zones. As we stated in our previous letter, the Fourth Circuit (which includes West Virginia) is quite clear that universities cannot prevent students from directing their protests at its "intended audience." In Students Against Apartheid Coalition v. Virginia, 660 F. Supp. 333 (1987) the court held that students on a public campus who wanted to direct their protests to the Board of Visitors meeting could not be forced to move to a place where the Board of Visitors could not see or hear them. To be constitutional, the campus free expression policy has to allow for "demonstrations" in areas other than the free speech zones when the intended audience for the demonstration is not accessible from any of the zones. This right is essential for any free expression policy to be constitutional in the Fourth Circuit. Your obligation to the rule of law in this matter is clear.
Furthermore, making the number of students the automatic trigger for when free picketing becomes a regulated demonstration is inappropriate and, likely, unconstitutional. The use of an arbitrary number is repeated in the section that states "Events that are anticipated to attract a large crowd (over 50 attendants) or those planned during non-business hours must have advanced reservations." By any standard, the proposal by a school of 22,000 to regulate any political gathering of 15 or more students is deeply troubling. Considering the tendency of any open student event to expand naturally, this policy allows the University to shut down activities that grow from very small to modest size once they pass an arbitrary threshold. Also, while a fixed number is not the right way to address the University's concerns about demonstrations, the number of students that triggers regulation is shockingly low (15 students do not even fill the average classroom) and does not express a serious commitment to a robust political culture at WVU.
Under the U.S. Constitution, state actors (such as WVU) are allowed to impose "reasonable time, place, and manner restrictions" on demonstrations on public university campuses. However as the Fourth Circuit has held, in order for a "time, place, and manner restriction" to be constitutional, the restriction must "respond precisely" to a university's stated interest. Because WVU's stated interest for restrictions on groups beyond a minimal size is to prevent disruption of university activities, any restriction must go precisely, and rationally, to the cause of the potential disruption. There is no logical reason to believe that 14 students are not disruptive while 24 or 54 necessarily are. Counting the number of students peaceably assembled is not the correct way to gauge disruptiveness and, since it does not "respond precisely" to the stated interest of the University, it is not constitutional. The size of the demonstration may be a factor in considering when a gathering needs have time, place, and manner restrictions, but should not be determinative.
Another provision that manifestly fails the requirement that the restrictions "respond precisely" to the University's interest in preventing disruption is the one that limits use of the free expression zones "for small events without advanced reservation" to "business hours," defined as 8:15am to 4:45pm. Because WVU's primary interest is to prevent disruption of University activities, it does not stand to reason that students should be prevented from using the free speech zones after business hours. In fact, these are the times when students are most likely to be able to conduct their activities without disrupting University activities. This restriction more than fails to respond precisely to the University's interest in avoiding disruption, it is in logical opposition to the University's interest and, therefore, would be found unconstitutional.
After consulting with Eugene Volokh, professor of constitutional law at the University of California, Los Angeles (UCLA) School of Law, we have concluded that other specific restrictions in the new policy are almost certainly unconstitutional. First of all, the ban on leafleting outside the residence halls and the medical center does not pass constitutional muster. In International Society for Krishna Consciousness v. Lee, 505 U.S. 672 (1992) Justice O'Connor ruled that a ban on leafleting in certain areas of an airport would not be permissible under even the most lenient standard of constitutional scrutiny. Because the Constitution is far more protective of rights at universities than at airports, there can be little doubt that this ban on leafleting is unconstitutional. Furthermore, the ban on picketing the medical center is indefensible in light of cases including Madsen v. Women's Health Center, 512 U.S. 753 (1994) and Hill v. Colorado, 530 U.S. 703 (2000). As should be clear from these cases, while reasonable time, place and manner restrictions are permissible to help the orderly running of a medical center, the First Amendment does not allow a total ban on picketing or protesting a medical center. The same is true of the residence halls. Professor Volokh pointed out that while Frisby v. Schultz, 487 U.S. 474 (1988) did uphold a ban on residential picketing, the case is not applicable here. Professor Volokh points out that this case would likely only apply to single-family houses and that the university could not ban free speech activities directed at a residence hall. Such a ban would run contrary to both students' rights to direct their speech to its intended audience and to bring their protests to the relevant community.
While changing all of these provisions might make WVU's policy constitutional, WVU should not be satisfied with a policy that merely permits free speech to the minimum extent required by law. As we stated in our previous letter, colleges and universities are the ultimate "free speech zones" of any free society. They exist to foster debate and discussion of society's most pressing issues. Not only would a university be more vibrant if it provided free speech protections that were more generous than those in the society at large, it would likely be more effective in its mission. The presence of rules that tightly regulate expressive activities teaches students that free speech is something to be feared and controlled. This is not the lesson that we want to send to our next generation of leaders. If students graduate from college believing that they should be sheepish and restrained in their expression of their deeply held ideas, beliefs, and political convictions, our society will descend into stagnation and mediocrity.
When one steps back from the constitutional analysis, one is left with the uncomfortable feeling that even a "free speech zone" policy that comports in all details with minimum First Amendment requirements is somehow inappropriate for a college campus. After all, the establishment of "free speech zones" connotes that the administration has decided to designate much of the campus as "censorship zones." It is both inappropriate and unnecessary to ban free speech from so many areas of the campus. WVU should follow the lead of the preamble to the draft policy, and reaffirm that the whole campus is a free speech zone, with modest restrictions of time, place, and manner to protect the right of people to conduct their normal activities. WVU should be returned to its function of cultivating and spreading ideas, rather than limiting them.
FIRE recommends that WVU fully implement the language already in the draft policy. The preamble states that expressive activity must be allowed "until or unless they substantially disrupt regular or essential operations of the University or significantly infringe the rights of others, particularly the right to listen to a speech or lecture." This should be the guiding principle of any university policy. In order to send the message that expression is not a nuisance and is, in fact, an intrinsic part of any university, administrators should not regulate speech that does not threaten the function of that university. WVU already has the power to punish activities that violate rules or threaten health or safety in any way. Since peaceful and safe activity is all that would be permitted under the student conduct code there is no reason to restrict expression any further. While this idea may seem radical, we implore you, before you implement any new policy, to try this approach. I think you will find that any concern you have about having an open campus will be more than offset by the benefits of the dynamic environment that is created when a university is unafraid to grant its students the freedom they deserve.
We look forward to your decision.
Director of Legal and Public Advocacy
Robert Griffith, Professor and Chair of the ad-hoc Free Speech Committee
Daniel Shapiro, Professor, Eberly College of Arts & Sciences, Philosophy & Humanities
Mary R. "Bobbie" Brandt, Associate General Council, Office of the President
Robert Kent, Director, Career Services Center
Kevin Leyden, Faculty Advisor, Students for Economic Justice
Jennifer McIntosh, Executive Officer for Social Justice, President's Office for Social Justice
Roy Nutter Jr., Chair, Faculty Senate
Michael Bomford, Students for Economic Justice
Matthew Poe, Students for Economic Justice
Eugene Volokh, Professor, UCLA School of Law