Censorship of Partisan Speech Revisited

As Election Day 2008 fast approaches and hot-button political issues dominate much conversation, FIRE has been seeing many new cases where university students and faculty are being prevented from engaging in partisan political speech. In FIRE's experience, university officials generally argue that the partisan or political speech of students and faculty would contradict the university's ethical or legal obligation of political neutrality or the school's tax-exempt status. These arguments are false.

These unconstitutional policies have resulted in the disinvitation of political speakers and bans against students and faculty from expressing support for a particular political candidate or party —even bans on forwarding political commentary using a university email account. Some policies even ban partisan bumper stickers on cars in university parking lots!

Sadly, these kinds of restrictions are nothing new. FIRE spoke to this issue in our 2004 statement on censorship of partisan speech. What we stated then remains equally relevant and compelling now, so here is the statement in its entirety:

In recent weeks, FIRE has seen a sharp increase in the number of inquiries regarding so-called 'partisan' speech on campus. These inquiries have corresponded with reports of speakers being 'un-invited' because college and university administrations feared that their speech would be 'too partisan.' For example, FIRE has received reports that the president of Florida Gulf Coast University cancelled a planned speech by Professor Terry Tempest Williams, fearing that Williams would be critical of President Bush's environmental policies. Similarly, California State University at San Marcos recently canceled a university-sponsored appearance by Michael Moore on the grounds that his speech would be 'too partisan.' FIRE has also received multiple requests from students asking us to intervene to prevent the use of student activity fee funds for politically-themed speeches.

It is deeply distressing and unfortunate that universities (and even students) are attempting to stifle political speech in the weeks before a Presidential election. If the First Amendment means anything at all, it means that speech must be free to influence the political process in this country. The founders of our nation considered the Bill of Rights essential because they recognized that true democracy would be impossible if one were not free to advocate political positions, whether they be mainstream, revolutionary, conservative, or anywhere else on the ideological spectrum. It is hardly an argument that speech should be censored because it might be used to change a person's point of view so close to an upcoming election. Speech often serves its greatest societal function when it is used to change minds through reasoned debate and discussion. The concern of college administrators should not be the maintenance of an artificially-imposed 'balance' but instead the protection of open discussion, expression, and candor.

While various state and federal laws prevent public and private university officials from explicitly campaigning for or against candidates on university time or through the use of university resources, not all speech regarding a political candidate is considered unacceptable 'partisan' campaigning. The U.S. Constitution puts profound limits on the ability of public university administrators to suppress student-sponsored speech, even if that speech explicitly and purposefully endorses a political candidate.

First, it is critical to remind administrators that students do not abandon their Constitutional rights when they enter the university gates, and that partisan political speech does not enjoy lesser constitutional protection than speech that advances cultural, educational, or religious purposes. To the contrary, political speech is considered the 'core' rationale for the First Amendment, and nowhere is it more important that speech remain free than in the arena of political advocacy. So long as students are not materially disrupting the educational process, campus administrators have no valid reason for limiting or suppressing free speech activities that support a particular candidate or political party.

Second, the fact that student activity fees are being used to fund partisan political activity is irrelevant to the constitutional analysis. Contrary to popular belief, student activity fees are not 'government resources.' As U.S. Supreme Court Justice Sandra Day O'Connor noted in the case of Rosenberger v. University of Virginia, a student activities fund, when derived from student activity fees, is 'a fund that simply belongs to the students.' The obligation of the university is only to ensure that those funds are dispensed on a viewpoint-neutral basis.

Being 'viewpoint-neutral' simply means that student organizations and student groups must have equal access to student activity fee funds without being subject to ideological litmus tests. It does not mean 'without a viewpoint.' Republicans, Democrats, Greens, and Libertarians may all petition for student fee funding, and the ultimate funding decision must be made without regard to the political viewpoint of the group. It is the right of individual students and of student groups to propose creative programs that impact campus opinion; it is the obligation of the student activity fee funding boards to fund those programs without bias.

Importantly, student organizations that fail to seek funding for their own activities or speakers cannot complain if funding is granted to those organizations that do seek funding. One can only object to student fees being spent on Michael Moore if one submitted a counterproposal and could make a legitimate allegation that a conservative speaker was rejected in favor of Michael Moore. Student activists should remember the old axiom that the cure for 'bad' speech is not censorship, but more speech.

Finally, colleges and universities should honor pre-existing contracts with outside speakers. Canceling an event due to fear that a speaker will endorse or condemn a particular political candidate sends a chilling message to the campus community. Nor is it acceptable to reschedule an event until after the election. A condemnation of President Bush's environmental policies is not rendered unacceptably 'partisan' simply because it occurs before the election, nor is a critique of Senator Kerry's 1971 anti-war testimony somehow less 'partisan' if delivered on November 5 instead of October 25.

Presidential election campaigns present a perfect opportunity for universities to prove themselves as models for democratic discourse. For many of our nation's students, the current campaign will represent the first time they are able to vote and to make their voices heard in a meaningful way. It is shameful that for too many of them, it has also become their first experience with suppressive censorship.

Stay tuned to The Torch for more very soon on censorship of partisan speech and political activity on college campuses in the United States.