West Virginia University Quarantines Free Speech

MORGANTOWN, W.V. — West Virginia University (WVU), in violation of its moral and constitutional obligations, has restricted the First Amendment of the U.S. Constitution to two small areas of its campus, designated "Free Speech Zones." It has transformed ninety-nine percent of this public institution into an oppressive zone of censorship. Students have been punished for exercising their free speech and constitutional rights in the parts of campus off-limits to liberty. Although the origins of these restrictions are unclear (no one wishes to take credit for them), President David C. Hardesty, Jr., is the first president in memory to enforce them.

FIRE wrote to President Hardesty, urging him "to tear down the barriers to speech and declare all of WVU a 'Free Speech Zone.'" 

FIRE reminded Hardesty of what the Supreme Court, in Sweezy v. New Hampshire (1957), termed "the essentiality of freedom in the community of American universities." FIRE pointed out that while "reasonable" time, place, and manner restrictions were constitutional (one could prevent loud expressions at 4:00 a.m. where people slept), "there is nothing 'reasonable' about transforming ninety-nine percent of your University's property — indeed, public property — into 'Censorship Zones.'" FIRE explained that the relevant case law, to say the least, "never intended to transform public institutions into places where constitutional protections are the exception rather than the rule."

President Hardesty did not reply, but Beverly D. Kerr, associate general counsel of WVU, wrote to FIRE, claiming, "WVU shares your organization's viewpoint that free expression is indispensable to the objectives of an institution of higher education." Kerr wrote that she would "share" FIRE's letter with a faculty committee formed to make recommendations on the policy.

"It should not take a committee to persuade President Hardesty to honor his constitutional, legal, and moral obligations," said Alan Charles Kors, president of FIRE. "These absurdly named 'Free Speech Zones' have no place at the free institutions of a free society. A public university does not have the authority to repeal the Bill of Rights." Kors added, "This appalling division of the campus into minute islands of freedom in a vast sea of oppression is another sad chapter in the WVU administration's long history of seeking to limit free speech."

WVU's policy, as stated in its student handbook, The Mountie, under "Free Speech Activities," restricts the First Amendment to two areas near the student union building: "the two designated areas for free speech and assembly will be the amphitheater area of the Mountainlair plaza and the concrete stage area in front of the Mountainlair and adjacent to the WVU Bookstore." This ad hoc policy, however, violates not only the First Amendment, but also the binding "policies, rules, and regulations" of West Virginia University (filed with the secretary of state of West Virginia on August 7, 1970). These official policies, still noted in the student handbook, promise "Freedom of Expression and Assembly"—including free "access to campus resources and facilities" and the freedom "to espouse causes."

WVU has already silenced those who sought to express their views outside of the "Free Speech Zones." University police officers on several occasions intimidated students who engaged in political speech (such as handing out leaflets) in the Censorship Zone. FIRE has taken note of four cases of suppression of student speech and expression, across the political spectrum.

As FIRE wrote to President Hardesty, one of the most vital missions of a university "is to serve as the ultimate 'Free Speech Zone.'" FIRE warned that "By limiting free speech to a tiny fraction of the campus, [WVU sends] the message that speech is to be feared, regulated, and monitored at all times. This message is utterly incompatible with a free society and stands in stark opposition to the ideals of higher education."

WVU's Faculty Senate has established a committee "charged with making policy recommendations that protect individuals' free expression rights while maintaining an orderly operation of the university." Said Kors: "To date, the administration at WVU has not recognized that unconstitutional restrictions at a public university are no part of 'order' and that the suppression of intellectual and political expression has no place at a modern university."

The Sorry History of "Free Speech Zones"

The Free Speech Movement itself began in the 1960s in response to a ban on political expression in specific public parts of the University of California at Berkeley. More recently, many universities, fearful of allowing free and unfettered speech on their campuses, established "free speech zones" very similar to those at WVU. When media attention and public scrutiny exposed these acts of suppression of liberty, however, embarrassed administrators quickly abandoned their impulse to censor, proclaiming their often new-found allegiance to the principle of free expression.

• In 1988-89, at Tufts University, President Jean Mayer announced the establishment of "free-speech" and "non-free-speech" zones on campus. In protest, Tufts students from across the political spectrum united to overthrow the policy. To attract media attention, they partitioned the campus with tape and chalk to designate which parts of campus allowed free speech and which parts allowed only censored speech, making it look like Berlin in 1946. Embarrassed by the widespread media criticism that followed, Tufts abandoned the policy.
• At the Stillwater campus of Oklahoma State University in 1998, a plan by some members of the student government to create limited "free speech zones" galvanized opposition from the University's faculty. Led by Professor Nancy Wilkinson, the Faculty Council emphatically condemned the idea, prompting President James E. Halligan to state publicly, "It's healthy for our students to question and interact with other ideologies." After this outcry, the student government never raised the issue.
• At the University of South Florida in Tampa, in the fall of 1999, the administration created two "speakers' areas" to which the exercise of free speech rights would be limited. Students and faculty immediately criticized this appalling restriction of their rights. Within weeks of its announcement, claiming that the policy was "too controversial," USF abandoned the plan.
• Recently, at the University of Wisconsin-Whitewater, a similar policy has withered under public scrutiny. The "Policy for Free Speech, Distribution of Literature, Protests and Demonstrations and Political Activity" created "free-speech areas," outside of which it was forbidden to post "political signs, posters, banners, or similar material." The policy, which was added to the student handbook in January 2002, came under attack from students and faculty, and was hastily rescinded a month later so that it could be "clarified." [Note: while encouraged by the steps taken at UW-Whitewater, FIRE continues to monitor the situation there, to ensure that the First Amendment rights of UW-Whitewater's students are not abridged.]

"Sadly, when attention is not drawn to these absurd and illiberal policies, many colleges and universities repress, with impunity, speech they deem 'offensive' or even merely 'inconvenient,'" said Kors. FIRE is concerned with similar divisions of campuses into free and unfree zones at other colleges and universities. At Pennsylvania State University, "Policy AD51" designates a handful of sites "as areas suitable for expressive activity" and establishes that "at other University locations, the office of the Campus Executive Officer, Dean, or other administrator in charge should be consulted to identify the sites suitable for expressive activity." The University of Mississippi has a policy limiting "the right to participate in a designated free speech area"—where, alas, "a" means "one": "Designated space for the free speech area shall be the plaza in front of Fulton Chapel."

Sunlight is the Best Disinfectant

West Virginia University, under President Hardesty, has a sad history of absurd attempts to regulate speech. In the spring of 1997, a group of WVU faculty invited Kors to speak about their own university's assaults on free expression. Kors addressed the policies of the President's Office for Social Justice at WVU, which outlawed, among many things, "heterosexism," defined as "the assumption that everyone is heterosexual, or, if they aren't, they should be." 

President Hardesty's OSJ instructed students and faculty to "use language that is not gender specific." The OSJ informed students and faculty that, "Instead of referring to anyone's romantic partner as 'girlfriend' or 'boyfriend,' use positive generic terms such as 'friend,' 'lover,' or 'partner.' Speak of your own romantic partner similarly." The code concluded with notice of penalties that ranged "from reprimand . . . to expulsion and termination, and including public service and educational remediation." 

After a coalition of WVU faculty threatened public exposure and litigation, President Hardesty first removed the codes from the campus website and then, under continuing moral and legal pressure from his faculty, withdrew these oppressive policies.

"Students at West Virginia University — and at other institutions that support censorship zones — are in insecure possession of their free speech and, at public institutions, First Amendment rights," said Kors. "Universities that limit free speech to a restricted section of campus betray an arrogant belief that students are not capable of living with freedom and the values of the Bill of Rights. Without free speech, no other liberty or dignity is possible. The freedom to express opinions and values is inseparable from the liberty that makes us capable of both morality and responsibility."

The Foundation for Individual Rights in Education is a nonprofit educational foundation. FIRE unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals across the political and ideological spectrum on behalf of due process, individual rights, freedom of expression, the rights of conscience, and religious liberty on our campuses. FIRE's work for liberty on American campuses can be seen by visiting its website, www.thefire.org.

Contact: 
Thor L. Halvorssen, FIRE: 215-717-3473; fire@thefire.org 
David C. Hardesty, Jr., President, West Virginia University: (304) 293-5531; dhardest@wvu.edu