A Victory for Campus Speech in Michigan

Last week, the Michigan Supreme Court handed down its ruling in People v. Rapp (PDF) and delivered a win for student rights on campus. The court overturned the conviction of Jared Rapp, a former Michigan State University (MSU) law student prosecuted under an ordinance that prohibited a large swath of protected speech on MSU's campus. The court ruled that the speech restrictions, made under the guise of preventing "disrupt[ion]," were overbroad. This decision stands as yet another reminder to university administrators that the First Amendment fully extends to public campuses. 

On September 16, 2008, Rapp received a parking ticket on MSU's campus. He approached a nearby MSU parking enforcement employee to complain about the ticket. When Rapp began shouting, the employee called campus police from inside his service vehicle, the standard procedure for responding to an upset parking ticket recipient. Rapp was charged with violating MSU Ordinance § 15.05, which reads:

No person shall disrupt the normal activity or molest the property of any person, firm, or agency while that person, firm, or agency is carrying out service, activity or agreement for or with the University.

Rapp was eventually convicted of violating this ordinance for his tirade against the parking enforcement employee. While a Michigan circuit court declared the law unconstitutional, the state Court of Appeals reversed the circuit court's decision and ruled the law didn't violate the First Amendment. On Friday, however, the Michigan Supreme Court issued its ruling, agreeing with the circuit court and invalidating the law as unconstitutional, thus overturning Rapp's conviction. 

This decision is welcome news for students for two reasons. 

First, the Michigan Supreme Court ruled that the ordinance's ban on speech and activity that "disrupt[s] the normal activity [...] of any person, firm, or agency" was overbroad. A law is unconstitutionally overbroad if it "criminalizes a substantial amount of constitutionally protected speech." Houston v. Hill, 482 U.S. 451, 466 (1987). The Michigan Supreme Court determined that this law could be used to punish a wide range of protected speech with unbridled discretion:

Nothing in the plain language of the ordinance prevents a student who simply feels that he or she has been disrupted by the actions or words of another person from seeking enforcement of this ordinance. Nor does the ordinance language prevent a police officer from choosing to enforce the ordinance when there is a complaint or simply when the officer witnesses somebody disrupting another person's activity.

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Accordingly, this ordinance can be said to "provide the police with unfettered discretion to arrest individuals for words or conduct that annoy or offend them," just as the ordinance in Hill did. Thus, like the unconstitutional ordinance in Hill, the MSU ordinance is "susceptible of regular application to protected expression[.]" [Internal citations omitted.]

The United States Supreme Court has repeatedly affirmed that the First Amendment doesn't hinge on speech being inoffensive and acceptable to society at large. The Supreme Court said in Texas v. Johnson, 491 U.S. 397, 414 (1989) that "[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."

The Michigan Supreme Court's ruling is important for higher education because it reminds college administrators that speech can't be regulated just because it causes some inconvenience or unpleasantness. FIRE has documented hundreds of restrictive speech codes at colleges and universities across America on our Spotlight database. These codes commonly make the same mistake that the MSU ordinance made: they require only a modicum of victim-dependent harm before erroneously declaring that the speech lacks constitutional protection. The Michigan Supreme Court's reasoning makes clear that other Michigan public universities' policies—including, for example, those that forbid "situations of a sexual nature that make others uncomfortable" at Michigan Technological University and "expressions of hate and hostility" at Central Michigan University—are not immunized from a similar student-led challenge.

The second reason the Rapp decision should be celebrated by college students and campus speech advocates is that it draws a clear distinction between minors in K–12 education and adults in institutions of higher education. The Supreme Court has recognized that the unique characteristics of the educational atmosphere for children allow primary and secondary schools greater leeway in regulating student expression. See Kelly Sarabyn, The Twenty-Sixth Amendment: Resolving the Federal Circuit Split Over College Students' First Amendment Rights, 14 Tex. J. C.L. & C.R. 27, 35 (2008). 

The Michigan Supreme Court in Rapp explicitly refused to extend the rationales applicable to primary and secondary schools to institutions of higher education:

Despite the fact that the MSU ordinance criminalizes constitutionally protected conduct, the dissent asserts that the ordinance is valid because "a university can implement measures to prevent disruptions of the academic environment."  The dissent cites Tinker and Hazelwood Sch Dist v Kuhlmeier as authority for this proposition.  However, those cases do not support the dissent's position.  Both Tinker and Kuhlmeier involved the constitutional rights of minors in public schools.   

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This case involves the constitutional rights of anyone who disrupts any person engaging in any activity with MSU and does not involve the unique issues that arise with regard to the rights of minors in public schools.  [Internal citations omitted; emphasis added.] 

The Michigan Supreme Court should be applauded for recognizing the bright line between the speech rights of high school students and the rights of adult university students. Conflating the two would be nonsensical given the stark differences the law recognizes between children and adults and would infantilize the adults attending these institutions, contradicting their status as full-fledged members of our democratic society.

This decision should serve as a warning to the thirteen public colleges and universities in Michigan that maintain policies seriously restricting students' freedom of speech. Students know they have rights, and the Michigan Supreme Court has demonstrated that Michigan courts know it, too. Hopefully Michigan's colleges and universities will follow suit. They can't claim that they didn't know any better.