Pressed Again on Free Speech Zone, Valdosta State Finally Responds
July 3, 2008
It's taken nearly eight months, but FIRE has finally received a response from Valdosta State University (VSU) regarding its blatantly unconstitutional free speech zone.
We first wrote (now former) VSU President Ronald M. Zaccari regarding his university's "Free Expression Area" policy in November of last year. Our letter detailed the myriad problems with the school's policy, which restricts the free expression of VSU's 11,000 students to an impossibly small stage for just two hours per day, as well as requiring reservations up to 48 hours in advance. Specifically, we wrote:
First, VSU's requirement of advanced reservations for all "[p]ersons wishing to speak on campus" impermissibly burdens the exercise of free speech on campus. VSU's reservation policy effectively requires that all free expression occurring on campus be explicitly registered and reserved at least two days prior. The operation of such a reservation system is patently incompatible with the First Amendment rights of VSU students and faculty. Expressive activity often involves spontaneous responses to unfolding events; to require prior reservations for all campus speech is to suppress free and open discourse on campus.
Second, VSU cannot lawfully quarantine free expression to just one area of the school's 168-acre campus—specifically, a single stage located on the Palms Quadrangle on VSU's Main Campus. (It would seem that VSU students hoping to engage in free expression on the school's North Campus—which, at 83 acres, is roughly the same size as the Main Campus—are simply out of luck.) Even if this stage comprised a full acre, it would still account for less than 1% of VSU's total campus. To impose such a stark restriction on the free expression of VSU's more than 11,000 students demonstrates a brazen contempt for the indisputable importance of free expression to a modern liberal education.
Third, VSU cannot constitutionally limit free expression on campus to a mere two hours per day. Enforcing such an arbitrary and restrictive prohibition makes a mockery of VSU's stated mission to "[e]xpand the boundaries of current knowledge, and explore the practical applications of that knowledge, through excellence in scholarship and creative endeavors."
We also pointed out that the Free Expression Area reservation forms employed by the school (which allow the school to silence speakers if necessary "in order to maintain order and decorum on campus") raised additional concerns:
Conditioning the right to free speech upon the speaker's ability to maintain "order and decorum" is constitutionally impermissible. A student's right to free expression, however unpopular or controversial, must not be contingent upon the reaction of his or her audience. By silencing students on the basis of how harshly, violently, or unreasonably others react to their words, VSU is creating an incentive for those who disagree to react violently, conferring a "heckler's veto" on speech to the benefit of the least tolerant members of the community. Further, invoking "order and decorum"—exceedingly vague terms—to determine whether student speech may proceed forces potential speakers to guess about what expression may threaten such undefined and subjective principles, resulting in a chilling effect on student speech and rendering this section of the policy unconstitutionally vague.
For months, we heard nothing from President Zaccari. No surprise there, as Zaccari likely had his hands full dealing with the federal civil rights lawsuit filed against him by former student T. Hayden Barnes, whom Zaccari personally expelled for nothing more than protected peaceful protest. So last month, as Zaccari neared the early end of his miserable tenure as VSU's President, we tried again, writing Zaccari another letter expressing our continuing concerns about VSU's free speech quarantine.
Well, perhaps VSU officials have seized upon Zaccari's departure as an opportunity to turn over a new leaf, because to our surprise, we received a response from Vice President for Academic Affairs Louis Levy late last week.
To his credit, Levy sounds some relatively encouraging (although breathtakingly audacious, given VSU's atrocious track record) notes in his reply, assuring FIRE that "Valdosta State University supports the free exchange of ideas and opinions." I'd be impressed if Levy wrote that particular sentence with a straight face, but in the wake of Zaccari's hapless reign, we'll give him the benefit of the doubt.
Levy continues by noting Valdosta State's victory in a 2003 legal challenge to their free speech zone, but there are key deficiencies in that ruling. First of all, the plaintiffs in that challenge were itinerant preachers, not VSU students, which certainly impacted the court's legal analysis.
Instead of considering the impact of VSU's free speech zone on student speech, the court frames much of its reasoning around the content of the preachers' sermons (in which passing students were labeled "whoremongers" and "drug addicts") and whether or not the preachers were silenced due to the particulars of their fiery message. It is an unfortunate fact that the nature of the personalities and the expression at issue in a case often impact the way the law is applied, and this may well have been one of those cases. Further, the court's ruling emphasized that the university had no obligation to allow anyone "access" to the students on campus 24 hours a day, indicating that their analysis of whether this regulation was narrowly tailored to serve a compelling state interest hinged, in part, on the fact that the case concerned outsiders seeking access to the campus, rather than a member of the student body speaking out on their campus. But as VSU well knows, their restrictive free speech zone applies not only to non-community members, like the plaintiff preachers at issue in the 2003 case, but also to VSU students and faculty.
Secondly, the court's ruling simply gets the law wrong in several crucial respects. Most significantly, the court's holding that VSU's restrictions on student expressions are in fact "reasonable time, place, and manner restrictions" lacks any supporting reasoning or analysis, without any recognition of the fact that public universities have long had a special niche in our nation's First Amendment jurisprudence as exemplary marketplaces of ideas. Instead, the court seems to be content to select random factors with which to evaluate whether or not VSU's Free Expression area was "narrowly tailored to serve a significant government interest." For example, the court notes approvingly that the Free Expression Area is open during dining hours, as if that pittance somehow excuses the fact that the tiny space is off-limits for the remaining 22 hours of every day, not to mention the fact that the rest of the campus is off-limits for expressive activity entirely. No state university can legitimately claim that it is so vulnerable to disruption that 22 hours a day of censorship should be considered a "narrowly tailored" speech restriction.
Strangely, the court plainly admits that "[a]ll speakers, regardless of subject matter or viewpoint, are restricted to the Student Expression Area, between the hours of noon and 1 p.m. and 5 p.m. and 6 p.m.," then deems this unconscionable quarantine "reasonable" without a second thought to the embarrassingly anti-intellectual implications of any university making such an argument. And having left VSU students with far less First Amendment protection on campus than they enjoy off campus (I bet VSU never advertised that to its students), the court ends its perfunctory and superficial "analysis" of whether or not VSU's free speech zone is sufficiently "narrowly tailored" by indulging itself in old-fashioned paternalism, stating that "[n]o law compels the University to make its property available twenty-four hours a day to anyone who seeks access to a captive audience of impressionable young minds." Impressionable young minds? These are young men and women who can fight and die for the country in battle, not eight-year-olds clutching their parents' hands as they cross the street. A "captive audience"? Unless the court believed students would be unable to break free from the hypnotic spell of public speakers, allowing the university to silence the whole campus just to be on the safe side seems more than a little overwrought.
FIRE heartily disagrees with the reasoning of the district court in Morris v. Zaccari (2003), and we unequivocally stand by our characterization of VSU's Free Expression Area as blatantly unconstitutional. We're preparing our formal response to Levy and VSU, in which we'll lay out our argument in more depth. More on VSU's Free Expression Area is yet to come, and we'll keep you posted.