FIRE's Second Letter to President David Hardesty, April 12, 2002

April 12, 2002

David Hardesty, President

West Virginia University

Office of the President

PO Box 6201

Stewart Hall

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 groups—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 demonstrations—the only kind allowed under these
rules—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.

Sincerely,

Greg Lukianoff

Director of Legal and Public Advocacy

cc:

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