Binghamton University is right to end investigation, but wrong to blame students for littered flyers

Last week, FIRE called attention to recent troubling events at Binghamton University, where campus police officers’ response to students’ posting and distribution of flyers raised questions about students rights at the university. The administration has since walked back some of its threats to student free speech, but there’s still work to do.

Trouble began on March 28, when a group of students posted in Binghamton University’s Downtown Center approximately 200 flyers criticizing the university’s response to recent incidents of perceived racist expression on campus. After about an hour, a campus police officer stopped student Dominic Davy and questioned him about the flyers, warning him that he had broken state law — a claim reaffirmed by Binghamton University Police Department Investigator Patrick Reilly in comments to the student newspaper, The Pipe Dream. Reilly told the paper that the flyers constituted “a violation of the law and of the student handbook” and that an investigation was ongoing.

After being warned that they could not continue posting flyers indoors, the students began distributing flyers directly outside the Downtown Center. Shortly after, a campus police officer stopped the students, explaining that “people came to [him] and were offended by” their flyers. He went on to say that although he “respect[s]” their point of view, when “it alarms other people then [he has] to interject and [he has] to do something about it.”

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The officer then told the students that they would be asked to stop distributing flyers if their recipients littered them. One student asked the officer why they would be held accountable for other people littering. The officer replied, “It’s because its being generated by you guys. … They would not be doing that if you guys didn’t generate the papers.”

FIRE wrote to Binghamton University on April 18, asking the university to end its investigation immediately and ensure that campus police officers receive proper training on students’ right to distribute expressive materials on campus.

In recent comments to Refinery29, the university had some good and bad news for those concerned about its treatment of student expression:

Ryan Yarosh, the university’s senior director of media and public relations, told Refinery29 that Pipe Dream had erroneously reported that police said they would be investigating the incident.

“There is no investigation and no charges,” he said in an interview. “The university does not intend to pursue charges.”

In an email, he wrote: “The free exchange of information and ideas opens a dialogue and the tradition at Binghamton, a public university, is that the full exercise of first amendment rights is encouraged and protected. The students were asked to abide by the university’s postering policy,” to which he linked. “The students were also advised by University Police that attaching the posters to the walls of the Downtown Academic Center was not permitted and that people that they were handing the posters to were dropping them onto the floors of the building and this was problematic.”

FIRE is pleased to see that the university is not pursuing an investigation or charges against the students, in line with requests made in our letter last month. However, the university’s claim that it was “problematic” for students to distribute flyers to people who littered them shows that Binghamton has only partially rectified the situation.

As we explained in our letter, students’ expressive activity cannot be limited on the basis that the recipients of their flyers may litter:

An interest in reducing litter is not a sufficient basis to restrict the distribution of flyers. To the contrary, the Supreme Court has repeatedly “explained that cities could adequately protect the aesthetic interest in avoiding litter without abridging protected expression merely by penalizing those who actually litter.” City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 808–09 (1984). The United States Court of Appeals for the Second Circuit, the decisions of which are binding on SUNY Binghamton, has recognized this longstanding precedent. See Vincenty v. Bloomberg, 476 F.3d 74, 84–85 (2d Cir. 2007) (citing with approval Taxpayers for Vincent in upholding a district court ruling enjoining the City of New York from enforcing an ordinance prohibiting the possession of aerosol spray paint containers in public places against individuals between the ages of 18 and 21).

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In short, SUNY Binghamton’s interest in preventing litter is an insufficient basis to restrict or burden the distribution of flyers. Moreover, it is a fundamental principle of law that one may be held legally responsible only for his own acts, or for his failure to act, where the law has imposed a duty on him to act. We are not aware of any law or regulation imposing on students, or any member of the public, the duty to prevent another person from littering. We doubt we could find such a law littered among New York’s statutes.

FIRE would be pleased to work with Binghamton University to discuss appropriate ways for administrators and campus police to respond to student expression. Until then, students at Binghamton University should be on the lookout to ensure that their First Amendment rights are not curtailed on the basis of other students’ behavior — and they should contact FIRE if they are.