FIRE's Letter to WVU's President David Hardesty, Feb. 11, 2002

February 11, 2002

David Hardesty
President, West Virginia University
Office of the President
PO Box 6201
Stewart Hall
Morgantown, West Virginia 26506

Dear President Hardesty,

FIRE unites leaders in the fields of civil rights and civil liberties, scholars, journalists, and public intellectuals across the political and ideological spectrum on behalf of liberty, legal equality, freedom of religion, academic freedom, due process and-in the case of West Virginia's University's "Free Speech Zones" policy-freedom of speech and expression on America's college campuses. Our web page, www.thefire.org, will give you a greater sense of our identity and activities.

We join with the West Virginia University Free Speech Consortium in opposing WVU's "Free Speech Zone" policy, which limits free speech to only a tiny portion of the campus. This perversion of constitutional law should be anathema to any institution committed to intellectual rigor, robust debate, and a free and vibrant community. We call on you to tear down the barriers to speech and declare all of WVU a "Free Speech Zone."

The irony of this policy is that the societal function of the university, in any free society, is to serve as the ultimate "Free Speech Zone." A university serious about the search for truth should be seeking at all times to expand open discourse, to foster intellectual inquiry, and to engage and challenge the way people think. By limiting free speech to a tiny fraction of the campus, you send 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. You should remember, at all times, our Supreme Court's timeless expression of the important role of our universities in Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957):

The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. No field of education is so thoroughly comprehended by man that new discoveries cannot yet be made … Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die. [Emphasis added]

Even without appealing to the exceptional protections universities enjoy under the federal Constitution, WVU's Free Speech Zone is still unconstitutional. The only possible defense of such a restrictive policy is to argue that it is some sort of a "reasonable time, place and manner" restriction, as allowed by cases like Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984). We assure you that there is nothing "reasonable" about transforming ninety-nine percent of your University's property-indeed, public property-into "Censorship Zones." The case law never intended to transform public institutions to places where Constitutional protections are the exception rather than the rule. To be legal "time, place, and manner" restrictions, they must be "narrowly tailored"-not unimaginably overbroad, as here. They also may not be enforced in a viewpoint-discriminatory way (we have reason to believe that there have been numerous instances of selective enforcement). Finally, they must be in place to "respond precisely" to substantial governmental interests. A generalized concern about safety and order is neither specific nor substantial enough to justify this rule.

A simple review of case law in your own circuit would reveal the obvious unconstitutionality of your policy. In Students Against Apartheid Coalition v. Virginia, 660 F. Supp. 333 (1987) the Fourth Circuit overturned, on First Amendment grounds, a rule that prevented University of Virginia students from erecting mock shanties in the middle of campus. These shanties were set up directly opposite the location of the annual Board of Visitors meeting, in order to protest the Board's investment in apartheid South Africa. In finding for the students' rights of expression, the Fourth Circuit likened the University to any other traditional public forum, where the broadest free speech protections apply. The court ruled that the structures could not be moved to some other part of campus because, in any other place, the message the structures were intended to send would not be able to reach its target. Under this decision, WVU's Free Speech Zone, which segregates protected speech from ninety-nine percent of campus (and, therefore, ninety-nine percent of possible audiences or targets), is unmistakably unconstitutional. Further, at the University of Virginia, the regulations specifying that structures could not be placed on the main lawn were ruled too vague, and that they covered too much protected speech. If this comparatively precise rule was considered too vague and overbroad, an expansive rule against all speech on all but a limited area of campus could not possibly survive constitutional scrutiny.

For all the controversy surrounding the Free Speech Zones, it appears highly unlikely that it is a legitimate or enforceable rule at all, even by WVU's own standards. Students for Economic Justice member Michael Bomford's repeated attempts to find the basis for this rule, and what legitimizes its presence in the student handbook, have been ignored. This secretive behavior is shocking considering this policy does nothing less than abrogate the protections of the Bill of Rights. As the constitutions of both the United States and West Virginia require substantial due process before denying such rights, and as WVU is obligated to make rules touching upon speech enforceable, FIRE requests that WVU immediately produce evidence of the policy's "legitimacy." Failure to do so is tantamount to declaring the death of free speech, and the demise of your university as a place where the fullest free speech protections are recognized.

We are categorically committed to using all of our media and legal resources to support the West Virginia University Free Speech Consortium and to see this process to a just and moral conclusion. Please spare West Virginia University the embarrassment of fighting against the Bill of Rights by which it is legally and morally bound. We urge WVU to show the courage necessary to admit its error, undo this unjust policy, and to tell the world that free speech at WVU is to be celebrated, honored, and broadened, not feared, restrained, and hidden.

We trust you will make the right decision.

Sincerely,

Greg Lukianoff
Director of Legal and Public Advocacy- FIRE
cc:
Mary R. "Bobbie" Brandt, Associate General Council, Office of the President
Robert Kent, Director, Career Services Center
Kevin Leyden, Faculty Advisor, Students for Economic Justice
Jennifer McIntosh, Executive Officer for Social Justice, President's Office for Social Justice
Roy Nutter Jr., Chair, Faculty Senate
Michael Bomford, Member, Students for Economic Justice