Boise State Revises Speech-Restrictive Policies to Settle First Amendment Lawsuit

Last June, student group Abolitionists4Life filed a First Amendment lawsuit against Boise State University for restricting members’ flyer distribution to one of eight “speech zones” that total less than 1 percent of the Boise State campus and for demanding that the group provide warning signs around their displays because they were “controversial.” Aided by Alliance Defending Freedom (ADF), the group argued that it was targeted because of its viewpoint, while other student groups were not subject to the same warning requirement.

This week, the case was settled, and Boise State has revised its policies in order to allow students to distribute flyers across campus and host events without mandatory warning signs. Boise State has also agreed to pay $20,000 for attorney’s fees and damages.

In ADF’s press release yesterday, Senior Legal Counsel David Hacker remarked on the significance of the case:

“Universities cannot function as marketplaces of ideas if free speech requires a warning sign or is otherwise severely limited on campus,” said ... Hacker. “We commend Boise State University for acknowledging this by revising its speech policy so that students can speak more freely throughout campus without fear of punishment.”

FIRE agrees. Handing out literature is one of the classic non-disruptive modes of expression, and public colleges’ all-too-frequent attempts to limit literature distribution to only a tiny fraction of their campuses just don’t pass constitutional muster. Colleges can enact reasonable time, place, and manner restrictions. But it’s reasonable to prohibit megaphones at midnight, for example—not to shut down speech throughout 99 percent of a public college campus.

Perhaps colleges are slowly getting the message—after all, they aren’t even trying to defend their “free speech zones” in court when FIRE helps students challenge them as part of our Stand Up For Speech Litigation Project. Unfortunately, as FIRE President Greg Lukianoff pointed out in his testimony before the U.S. House of Representatives Subcommittee on the Constitution and Civil Justice on Tuesday, roughly one in six of the hundreds of colleges whose policies FIRE assessed still maintain these ironically named “free speech zones.”

FIRE is glad to see ADF and Abolitionists4Life fight for students’ right to express themselves throughout the open spaces on Boise State’s campus.

We also think that open discourse will benefit from the university dropping its requirement that student organizations post warning signs for displays or events that administrators deem “controversial.” Like censorship, compelled speech is unacceptable under the First Amendment. Moreover, warning signs create a significant risk of stigmatizing certain groups’ events and dissuading students from participating when an administrator has made a subjective determination that a certain viewpoint is problematic. Eliminating the university’s discretion and power in this instance is key to ensuring that the “marketplace of ideas” on campus flourishes.

Boise State still has some work to do revising its other speech-restrictive policies, but FIRE is hopeful that the administration will continue to work with free speech advocates in order to create a campus that is truly safe for a wide range of expression.

For more on Abolitionists4Life v. Kustra, check out Abolitionists4Life’s complaint and ADF’s press release, both available on ADF’s website.