Ball State Professor's Flag Flies Again, Thanks to FIRE

A head-scratching case of censorship involving a telecommunications professor, an Italian flag, an office window, and a policy designed to regulate outdoor signs and structures has fortunately come to a satisfactory end at Indiana’s Ball State University.  For roughly four years, Professor Dominic Caristi, a professor in Ball State’s Department of Telecommunications, hung a flag unobtrusively in his office window. Initially, Caristi hung the Greek flag—a reference to his selection as a Fulbright scholar to Greece. Later, he replaced it with the Italian flag, a nod to his heritage. This past February 11, however, Associate Vice President of Facilities Kevin Kenyon asked Caristi to remove the flag. Caristi complied with the request but asked that Kenyon show him the specific policy governing expression in this area. Not having a policy to point Caristi to, Kenyon referred Caristi to Leisa Julian, Ball State’s Associate Vice President for Business & Auxiliary Services. Caristi emailed Julian and asked for a policy explanation for the order to remove the flag from his window. In response, Julian pointed him to Ball State’s Use of University Property for Expressive Activities policy.

Julian wrote:

In the Policy on the Use of University Property for Expressive Activities, the University recognizes the importance of free speech, but does regulate the time, place and manner of individual expression in a content neutral and viewpoint neutral fashion. The display of a flag in a window would fall within rules set forth in the section on signs, which only permits such a display in a designated area outdoors for a period of up to 10 calendar days. The intent here is to ensure that expressions are conducted in an orderly manner that respects the rights of others in the campus community. We can’t pick and choose which signs to allow people to display as an individual expression, rather we can only regulate the time, place and manner of a display as I mention above, and the university has done that in a very clear manner.

This justification for Ball State’s order was immediately suspect, since the section of the policy Julian was referencing is inapplicable to Caristi’s expression. The expressive activities policy’s section on “Temporary Structures and Signs” states that “[s]tructures and signs are permitted for a period of up to ten (10) calendar days, which includes the time used to set up and tear down the structure or sign.” Explicitly, this part of the policy refers only to “temporary structures and signs out-of-doors in a designated area.” No mention of indoor expression is made. Caristi pointed this out to Julian and Kenyon, but his protestations were to no avail.  Caristi contacted FIRE, and we wrote to Ball State President Jo Ann M. Gora on April 29.

Our main point was a simple and intuitive one: Policies written to govern outdoor expression can’t be used to govern indoor expression, unless we want to throw overboard our system (a useful one, I submit) of anchoring particular meanings to words so that, for instance, people can have an idea of what expression is actually governed by policies on campus expression. Such a sudden expansion of what Ball State’s expressive activities policy could cover would not only render the policy nearly useless, but could raise legal concerns for Ball State as well. As we wrote in our April 29 letter: FIRE imagines that many Ball State faculty members and students will be shocked to learn that the university considers expression in dormitory and office windows to fall within the domain of a policy governing temporary outdoor structures and signs.

If Ball State is willing to expand its policies so far beyond their written scopes, how are students and faculty ever to know the kinds of speech and expression in which they may or may not engage? This vagueness raises significant First Amendment concerns. As the Supreme Court has held, laws must “give a person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.” Grayned v. City of Rockford, 408 U.S. 104, 108–09 (1972). Ball State was gracious in response. Vice President for Business Affairs and Treasurer Randall Howard admitted that the policy cited in Caristi’s case “is not as detailed as some would prefer.” Howard also noted that Ball State “is in the beginning phases of a new campus master plan that will involve input from across the campus and all of its constituents.” Among other elements of its new “campus master plan” is an effort to “ask a group to look at the issue of windows and recommend an appropriate and clear policy as part of this effort.”

In the meantime, Caristi is allowed to return his flag to its former position while Ball State’s policies are revised and clarified.  This is a good start for Ball State. It is possible for the university to craft a policy governing expression in areas like the windows of faculty offices (which have often been viewed as a traditional venue of faculty expression) that provides appropriate guidelines for such expression within constitutionally permissible bounds. Fortunately, Ball State also understands the need for any such policy to be consistently applied in a viewpoint-neutral manner. And of course, as this case has shown, such policies can’t be effective if they are used to govern expression clearly outside their defined scopes.  We appreciate Ball State’s acknowledgment that its policies fell short and commend it for promising to work to make its policies clearer. Of course, FIRE’s door is open if Ball State wants to use the opportunity of working on its new campus master plan to also take a look at its various “yellow light” speech codes, further strengthening its commitment to free speech.