When It Restricts Free Speech to a Small Area, It’s a “Free Speech Zone”

University of Central Florida President John Hitt sent the following e-mail to a FIRE friend who objected to UCF’s “free speech zone” policy:

Free speech is a fact of life throughout our university's campus. The policy in question is clearly labeled “Free Assembly Areas.” It should tell you a lot that FIRE begins its communication by properly referring to the policy, then mis-labels it “Free Speech Areas” after a few sentences. Free speech is everywhere on campus; we simply have designated areas where large numbers of people can gather with enhanced sound and conduct rallies without interfering with university business.

U.S. courts have long held that speech may lawfully be regulated with regard to time, manner and place. We are confident that we are within our constitutional rights in upholding our policy.

UCF would be in a much better position if its policy actually said what President Hitt claims it says. Reasonable time, place, and manner restrictions are constitutionally permissible. However, the policy actually states: “four areas shall be deemed free assembly areas for the conduct of political activity and other exercises of free speech.” So, political activity and free speech are confined to UCF’s “free assembly areas.” This policy is very similar to one once employed by West Virginia University, which actually used the Orwellian term “free speech zones” in its policies (not “free speech areas,” as President Hitt misquotes us, although that’s a minor nomenclatural matter). FIRE uses the term for consistency, to demonstrate that no matter what you call these areas, they are in fact “free speech zones,” unconstitutional contraptions unfit for a university campus. If President Hitt doesn’t like that characterization and doesn’t want a “free speech zone” on his campus, then he should slay the beast and rewrite the policy, not just call it by a different name.

President Hitt contends that the free speech zone is a reasonable time, place, and manner restriction, as defined by cases like Ward v. Rock Against Racism, 491 U.S. 781 (1989). However, as FIRE already explained in its letter to President Hitt, the law does not recognize small and/or out-of-the-way free speech zones, such as UCF’s, as constitutional, no matter what one chooses to call them. UCF’s policy confines speech to only four small areas of a vast campus. As FIRE wrote in its initial letter to President Hitt:

There is nothing reasonable…about transforming the vast majority of the university’s property—indeed, public property—into a censorship area…. Federal case law regarding freedom of expression simply does not support the transformation of public institutions of higher education into places where constitutional protections are the exception rather than the rule. Time and again, courts have determined that to be considered legal, time, place, and manner restrictions must be narrowly tailored to serve substantial governmental interests. The generalized concern for order that underlies the establishment of “free speech zone” policies is neither specific nor substantial enough to justify such restrictions. (Emphasis added.)

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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). UCF would be well advised to take this decision into account in considering its own policies.

You can call the offending policy whatever you want, President Hitt, but if it unlawfully restricts speech to a few small areas of the campus, we’re going to call it a “free speech zone,” and if you’re going to restrict the free speech rights of students, as you did with Students for a Democratic Society, then we’re going to call you on it and you’re going to be subject to public and legal scrutiny.