UMass Dartmouth Free Speech Zone: Unenforced, But Still Unconstitutional

Students at the University of Massachusetts Dartmouth are speaking out against the university's limitations on where students may protest or engage in public political speech. 

As The Standard-Times (New Bedford, Mass.) reports, UMass Dartmouth's "free speech zone" "encompasses a patch of grass 75 feet southeast of the campanile at the center of campus and bordered on each side by walkways." According to the article, the policy has not been enforced since its creation in 2005, despite at least one protest occurring outside the zone. Nevertheless, as philosophy professor Phil Cox notes, UMass's rules and regulations regarding "public forum spaces" interfere with students' constitutionally protected right to free expression just by being on the books.

Let's review the problems here.  

First, the university's rules conflict with its own statement that it "recognizes the rights of members of the University community . . . to freedom of assembly and speech, and strongly endorses the free exchange of ideas at the University." The statement goes on to clarify that students may exercise their rights in "public forum spaces," which are "locations that by tradition or policy are available for public assembly and speech." 

Of course, by tradition—and keeping in line with the First Amendment, by which UMass Dartmouth is legally and morally bound—the vast majority of campus should be available for public assembly and speech. Reasonable, content-neutral time, place, and manner restrictions may be appropriate where student speech could disrupt the school's functioning, but "[m]aterial disruption of or interference with instructional activities and other University business and campus events" is already prohibited separately from the establishment of the free speech zone. 

Second, as Cox articulates, the policy's "existence is intimidating." Even if administrators choose not to enforce the policy, the fact that it is on the books certainly deters students from practicing speech that might violate the policy—even when that speech is constitutionally protected. The chilling of free speech on campus is always problematic, whether it is through the threat of potential punishment or through actual administrative response. 

Further, an unenforced policy that is still officially in effect leaves ample room for selective enforcement. The university could easily decide to enforce the policy when confronted with speech it does not like. That it apparently hasn't so far is arguably a good sign, but then why maintain the policy at all? As things stand, there's nothing preventing this state university from engaging in unlawful censorship starting this afternoon. 

Until UMass Dartmouth aligns its rules and regulations with the First Amendment, and until it aligns its actions with its written policies guaranteeing free speech and assembly, students will have little notice as to what public speech is protected and what speech may land them in trouble—and the university will be vulnerable to a lawsuit it's highly unlikely to win.