Here in America free speech is one of our most cherished constitutional rights. However, that right, as it has been hammered out by two centuries of U.S. Supreme Court rulings, is not absolute. The First Amendment does not protect libel, obscenity, or incitement, among other things. Nor does it protect forms of expression which obstruct the activities of others. Under the First Amendment, for example, protesters cannot restrict freedom of movement by blocking streets or building entrances.
Accordingly, American jurisprudence has firmly established that local, state, and federal governments have the power to restrict the “time, place, and manner” of public demonstrations. Thurgood Marshall, delivering the opinion of the court in Grayned v. City of Rockford (1972), wrote:
The crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time.
At the same time, though, any such regulations of time, place, and manner had to be content-neutral:
The right to use a public place for expressive activity may be restricted only for weighty reasons. Clearly, government has no power to restrict such activity, because of its message.
In essence, according to Marshall, the nature of a place—what he called “the pattern of its normal activities”—determines what types of speech are appropriate and at which hour.
With one eye trained on free speech law, many college and university administrations have developed their free speech policies under the rubric of time, place, and manner. Since the university’s “pattern of . . . normal activities” includes first and foremost classroom instruction, many institutions developed what they call “free speech zones,” areas where students can protest without disrupting class.
But the history of free speech zones, like so many other things, didn’t turn out quite as intended. The well-intentioned implementation of free speech zones has in many cases developed into a frivolous and restrictive application.
In the late 1960s and the early 1970s, protests for a variety of causes, including civil rights and opposition to the Vietnam War, disrupted many college campuses, sometimes with violence. In April 1968, to provide one memorable example, a sit-in protest by Columbia University students at the school’s administrative buildings lasted eight days before police were summoned to forcibly evict them, resulting in beatings and mass arrests.
In order to prevent such incidents, school administrations started to reserve certain areas of campuses for protest and demonstration. The purpose of these free speech zones was not to silence the messages promulgated by protesters, but rather to prevent their demonstrations from interfering with academics and administration. Many college officials wanted students to make their voices heard, but not if it meant unleashing chaos and unrest on their campuses. They wanted to protect speech by ensuring it didn’t come into conflict with public order.
In the mid-1960s, Robert O’Neil, a former university president and founder of the Thomas Jefferson Center for the Protection of Free Expression, served as a chairman of UC-Berkeley’s Campus Rules Committee, which moved student rallies from the upper plaza of the school’s campus to the lower plaza. According to O’Neil, the committee was “concerned that the protests on the upper plaza were causing congestion and interfering with other student activities and classroom instruction.”
In the late 1960s, Southwest Texas State University created a “Student Expression Area,” which, in addition to only being available for three hours each day, had to be reserved at least two days in advance. But that didn’t mean protests couldn’t also be held in other parts of the school’s campus. When a group of students informed the school in November 1969 of their intention to stage an anti-war protest at a time and place outside of those provided by the university, administrators tried to find what they thought to be a more appropriate venue for the protest, fearing that the students would disrupt classes.
But there were limits to such accommodation. When some students ignored the school’s warning and went ahead with the planned protest, they were suspended. Consequently, these students challenged SWTU’s free speech zone in court as a violation of their right to free speech under the First Amendment.
But the Fifth Circuit Court of Appeals ruled in favor of the school:
University officials acted reasonably to balance the interests of the majority of students in the maintenance of an academic atmosphere conducive to the pursuit of their chosen studies against the unquestioned rights of those who wished to demonstrate their views against the war in Viet Nam.
And concluded:
The Student Expression Area regulation in Hill Hints is a valid exercise of the University's right to adopt and enforce reasonable, non-discriminatory regulations as to the time, place and manner of student expressions and demonstrations.
Today, however, college free speech zones are anything but reasonable regulations of time, place, and manner. In fact, in an increasing number of instances, the zones are being used to, in effect, shut speech down, rather than provide an appropriate platform for it.
Here are two examples.
In February 2012, a chapter of Young Americans for Liberty at the University of Cincinnati was told they could not gather signatures from other students for a ballot initiative outside of the school’s free speech zone, a secluded patch of grass which makes up just 0.1% of the area encompassed by the Cincinnati campus.
Similarly, at Modesto Junior College in California last year, student Robert Van Tuinen was stopped by campus police officers from distributing copies of the U.S. Constitution on Constitution Day. He was told that he had to reserve the school’s free speech zone, a concrete slab barely large enough for two people, for a future time.
In neither of these instances was there a situation comparable to the circumstances faced by college administrators in the ‘60s and ‘70s. Those officials often dealt with large, unruly, and sometimes violent mobs of protesters.
By contrast, the students at Modesto and Cincinnati wanted to peacefully distribute literature and procure signatures, respectively. Appropriately, U.S. District Court Judge Timothy Black rejected Cincinnati’s insistence that allowing the Young Americans for Liberty to gather signatures outside the free speech zone would disrupt learning and ruled that its enforcement violated the First Amendment. He said, “There is no danger to public order arising out of students walking around campus with clipboards seeking signatures.”
It’s one thing to regulate the time, place, and manner of speech; it’s quite another to cynically apply it to muzzle students. Free speech zones were created by universities in a tumultuous time to balance their interest in having students express their beliefs with their interest in maintaining a stable academic environment conducive to learning. Today’s free speech zones limit speech.
Image: Protest march against bigotry and hate speech by Fibonacci Blue / CC by 2.0
