Three Key Points to UC Court Victory

Well, the University of Cincinnati can't say it didn't see this week's big court victory for student speech coming. After all, FIRE has been warning UC for years now about the constitutional deficiencies in the free speech zone policy enjoined by a federal district court in Tuesday's order. Had UC taken FIRE's advice back in 2007, it could have saved itself the embarrassment of fighting against (and losing to) the First Amendment in court—and saved Ohio taxpayers money, too.

But UC wanted to do things the hard way. General Counsel Mitchell McCrate told FIRE in 2008 that "[w]e have no speech code and do not place undue or burdensome restrictions on the use of the free speech area." This week, a federal district court disagreed in stark terms, issuing a preliminary injunction prohibiting UC from enforcing its free speech zone and ordering the university to implement a policy that complies with the First Amendment.

Reading Judge Timothy S. Black's order in full is well worth your time. In the interest of helping other institutions learn from UC's mistakes, it's worth looking closely at three key points.

1. Contradictory and confusing policies don't hold up in court.

Inexplicably, UC maintained two contradictory policies regulating student speech on campus: (1) the "Use of Facilities" policy applied against student Christopher Morbitzer and UC's Young Americans for Liberty (YAL) chapter, which required students to give 10 days' notice to campus police before engaging in "demonstrations, picketing, and rallies" within the "Free Speech Area"; and (2) the "MainStreet Event guide," which also governed student speech within the "Free Speech Area" and required students to give either 5 or 15 days' notice, depending on whether the event required security. Confusing, huh?

Making matters worse for students seeking to somehow comply with these conflicting policies, UC also failed to define important operative terms in each. For example, UC never specified what forms of student speech would constitute "demonstrations, picketing, and rallies"—a crucial deficiency identified by the court. Nor did UC detail how its administrators would determine whether an event needed security, an omission that the court pointed out left administrators with "the opportunity for arbitrary or discriminatory enforcement."

Seizing on these problems and the "clear confusion" they engendered, the court announced that it "would be compelled to find the policy unconstitutionally vague on its face." The lesson here? Make sure your policy—your single policy—clearly defines relevant terms, so as to guarantee students their right to engage in free expression on campus without providing administrators the opportunity to interpret ambiguities in a way that silences speech. Better yet, skip the speech codes and let the First Amendment do the work for you.

2. Revising the free speech zone policy after the suit had commenced didn't help UC.

Having been woefully late to recognize the obvious shortfalls of its messy, conflicting speech policies, UC attempted to correct its errors by implementing a new policy (singular) in late April. Having done so, UC argued to the court that the complaint filed by Morbitzer and YAL was now effectively moot, since the challenged policies were no longer in force at UC.

But the court didn't buy UC's gambit. In a thorough opening footnote, the court explained why UC's new policy failed to preclude the court from issuing its order. First, the court found that the university's mere declaration that it wouldn't reinstate the old policies simply wasn't enough to prevent the court from issuing a ruling against them. The court noted that "the timing of the University's changes leaves this Court with no assurance that the challenged conduct will not be re-implemented, absent an injunction, at the conclusion of this litigation"—especially, the court noted, since the university "continues to defend the constitutionality of its old policy." UC's attempt to bamboozle the court didn't work.

Second, the court found that the new policy failed to answer the challenges against its predecessors. Even though the new policy required 3 days' notice instead of 5, 10, or 15 days' notice, the court found that it still "harm[ed] Plaintiffs in the same fundamental way by imposing a notice requirement for all student speech on campus." The court held that it "need not speculate whether the Defendants will return to the allegedly wrongful conduct because they already have in the form of the new policy," noting later that "the new policy applies even more broadly" and "will not likely survive strict scrutiny." (Emphasis in original.)

In other words, UC's policy change was much too little, much too late. Having failed to rectify the unconstitutional restrictions in its policies prior to litigation, UC couldn't simply make the problem go away later by enacting a very slightly improved policy after being hauled into court. That's an important reminder for all public universities that continue to maintain unconstitutional speech codes—fixing the First Amendment problems only after being sued may seem like clever lawyering, but it doesn't help. If, after five years of warning, a First Amendment lawsuit embarasses you in court, your administration has been asleep at the wheel.

3. Declaring the entirety of campus a "limited public forum" for student speech is unacceptable.

The court's order turned in large part on the question of forum analysis—a crucial consideration in cases involving speech restrictions on government property, such as a public university campus. A very brief summation of forum analysis: Per First Amendment doctrine, government restrictions on speech in an area determined to be a "limited public forum" must only be viewpoint neutral and reasonable in light of the purpose served by the forum, meaning that the government possesses significant discretion to restrict speech. But government restrictions on speech in a "designated public forum" or a "traditional public forum" are subject to strict scrutiny by a reviewing court, and so must be narrowly tailored to serve a compelling government interest. That's a much higher barrier for the government to clear. (This is skeletal, so for more on forum analysis, see FIRE's Guide to Free Speech on Campus.)

The student plaintiffs argued that the free speech zone is a traditional public forum and that many other outdoor sections of campus—including the "MainStreet" pedestrian corridor through the heart of campus and "University streets, sidewalks, and open areas"—constitute designated public fora. In opposition, UC declared that both the free speech zone and indeed the entirety of campus were limited public fora. So, again, this was a critically important question for the case: If the court agreed with UC's characterization of its campus as a limited public forum, then the free speech zone policy simply had to be "reasonable" and viewpoint-neutral to pass muster with the court. (When it comes to forum analysis, a regulation's constitutionality is often essentially a function of the determination of forum.)

Fortunately for student First Amendment rights at UC and elsewhere, the court emphatically disagreed with UC's bold attempt to brand its campus a limited public forum. The university's argument relied heavily on the United States Court of Appeals for the Sixth Circuit's holding in Gilles v. Garland, 281 Fed. Appx. 501 (6th Cir. 2008), in which the Sixth Circuit held that a public university campus was a limited public forum. After pointing out that Gilles' continuing validity has been called into question by recent Supreme Court and Sixth Circuit decisions, the court then distinguished Gilles from the present case by noting that Gilles concerned a challenge from a non-student evangelist who sought access to campus for preaching. In contrast to Gilles, this case involves the university's own students—and "Gilles does not suggest, nor is this Court aware of any other precedent establishing, that a university may constitutionally designate its entire campus a limited public forum as applied to students." (Emphasis in original.)

Moreover, the court continued, the university's "limited public forum" declaration

would allow the university to restrict the speech of all students to limited topics, subject only to a reasonableness review. Such a theory is an anathema to the nature of a university, which is "peculiarly the marketplace of ideas" and runs contrary to the Supreme Court's holding that "the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools." [Internal citations removed.]

As a result—and noting that "the University has simply offered no explanation of its compelling interest in restricting all demonstrations, rallies, and protests from all but one designated public forum on campus"—the court found that the students were likely to succeed in their claim that the free speech zone's quarantining of speech to 0.1% of campus "unconstitutionally burden[s] their right to free speech."

What's the lesson here? Public universities that believe they may unilaterally declare their campuses limited public fora with regard to student speech will find themselves on the losing end of a federal civil rights lawsuit. I hope universities nationwide pay close attention to this point.

In sum, Tuesday's opinion bears out what FIRE told the University of Cincinnati back in December of 2008, when we asked UC to change its policy: 

FIRE has challenged the establishment of free speech zones at universities across the nation, including at Citrus College in California, Colorado State University, Seminole Community College in Florida, Texas Tech University, University of Nevada-Reno, University of North Carolina-Greensboro, Valdosta State University, West Virginia University, and Winston Salem State University. In all of these cases the institutions challenged have either decided on their own to open up their campuses to expressive activities or have been forced by a court to do so. For instance, in FIRE's case at Texas Tech, a federal court determined that Texas Tech's policy must be interpreted to allow free speech for students on "park areas, sidewalks, streets, or other similar common areas ... irrespective of whether the University has so designated them or not." See Roberts v. Haragan, 346 F. Supp. 2d 853 (N.D. Tex. 2004). [Emphasis added.] Cincinnati would be well advised to take this into account in considering its own policy.

[...]

Please spare the University of Cincinnati the embarrassment of fighting against the Bill of Rights—a statement of both law and principle by which the university is legally and morally bound. We urge Cincinnati to undo this unjust policy, thus making clear that free speech at Cincinnati is celebrated, honored, and embraced—not feared, restrained, and hidden. Let your students exercise their basic legal, moral, and human rights; let them speak, assemble, and protest as their consciences dictate.

We asked UC politely, and we warned it about maintaining an unconstitutional policy. In return, UC brazenly ignored us and insisted on litigating a losing case on the taxpayers' dime. Let's hope UC doesn't appeal this decision, further extending its assault on its own students' First Amendment rights—and, most likely, its own embarrassment.