12/31/2013 09:22 am ET Updated Mar 02, 2014

Universities Continue to Ignore the Lessons of Litigation on Campus Free Speech Zones

Vasiliki Varvaki via Getty Images

A student at Modesto Junior College in California who wanted to silently distribute copies of the U.S. Constitution to his fellow students -- on Constitution Day -- was stopped by the police. A student group at the University of Cincinnati looking to collect signatures for a statewide "right to work" ballot initiative is threatened with charges. Students and community members at Sinclair Community College in Ohio who merely sought to hold signs made for a campus rally were told that they must lay them flat on the ground.

What do all of these individuals have in common? All of them attempted to take part in clearly protected speech and expressive activity at a public college or university -- and all of them were prevented from doing so by the school's application of a "free speech zone" policy.

Sadly, these institutions are not alone in violating their students' First Amendment rights. Universities across the country continue to maintain and enforce unreasonable restrictions on students' right to protest, rally, demonstrate or even distribute literature. My organization, the Foundation for Individual Rights in Education (FIRE), fought such abuses throughout 2013 and will take the fight into 2014 and beyond, for as long as universities continue to flout the First Amendment.

At Modesto Junior College (MJC), student Robert Van Tuinen found himself being denied the right to peacefully distribute copies of the Constitution on September 17. Making matters worse, September 17 was actually Constitution Day! Apparently oblivious to this fact -- and to the basic requirements of the First Amendment -- an MJC police officer stopped Van Tuinen and another student as they were handing out copies of the Constitution outside of the student center. A university administrator then told Van Tuinen that the school's policies required students to register campus events five days in advance and hold them inside a small "free speech area" (pictured below). As captured in incredible video footage, the official informed him that the designated area is "in front of the student center, in that little cement area."


That particular expression almost perfectly captures the flippant attitude of many university officials toward campus free speech. Too often, student discourse gets treated like a nuisance that, at best, is to be tolerated -- not a vital thing deserving to be celebrated. But the official didn't even stop there; responding to Van Tuinen's point about the timeliness of Constitution Day, she dismissively stated, "You really don't need to keep going on." Okay, then.

Fortunately, Van Tuinen brought the matter to FIRE's attention, and when our advocacy did not convince the school to amend its unconstitutional policies and practices, he decided to file a lawsuit to vindicate his First Amendment rights. Earlier this month, MJC agreed to suspend enforcement of its free speech zone policy as it negotiated an end to Van Tuinen's legal challenge. The joint stipulation between MJC and Van Tuinen stated that the parties had agreed on several significant revisions to MJC's policies and procedures to better protect student free speech and open up more of the campus to First Amendment activity. Those revisions are pending final approval by the Yosemite Community College District, expected this spring.

Despite this encouraging development, this is not a matter that should have gone to court in the first place. The public officials in charge of running MJC should have known that the college had violated one of its students' basic rights. They should have been aware that courts have previously struck down campus "free speech zones" on constitutional grounds. They evidently realized neither.

Yet just a year previously, a federal court in Ohio invalidated similar restrictions maintained by the University of Cincinnati (UC), another public institution. In that case, members of the UC student group Young Americans for Liberty (YAL) sought to collect signatures on campus in support of a statewide ballot initiative on the "right to work." However, UC policy limited all "demonstrations, pickets, and rallies" to a "Free Speech Area" comprising just 0.1 percent of the university's 137-acre West Campus and further required that all expressive activity even in that area be registered with the university a full 10 working days in advance. When YAL's leader, Chris Morbitzer, alerted the university to the group's planned activity, his request was denied. Chillingly, an administrator told Morbitzer that if any YAL members were seen "walk[ing] around campus" gathering signatures, campus security would be alerted.

Despite having been warned by FIRE for years about the policy's constitutional defects, UC was willing to defend its free speech zone in court in Morbitzer's subsequent legal challenge. That did not turn out so well for the university. In a June 2012 ruling, the federal district court strongly agreed with Morbitzer, finding that the policy "violates the First Amendment and cannot stand." The court ultimately issued a permanent injunction prohibiting UC from reinstating its free speech zone.

As though one recent victory in Ohio were not enough, students at Sinclair Community College (SCC) secured their own favorable result in a case dating back to last year. In June 2012, the Traditional Values Club student group held a campus rally to protest health coverage mandates from the U.S. Department of Health and Human Services. Incredibly, SCC police declared that no signs of any kind were allowed at the event, and ordered all signs to be placed on the ground. Moreover, when FIRE wrote to point out the legal ramifications (not to mention the abject silliness) of the policy, SCC President Steven Lee Johnson went so far as to say the restriction was necessary because of "safety and security" concerns, invoking the tragic Virginia Tech shootings in 2007 to say that signs could be used as weapons.

This type of rationale is not just offensive to First Amendment advocates -- it is just downright offensive.

As FIRE President Greg Lukianoff said at the time, "It's outrageous to use the shooting at Virginia Tech to justify a blanket ban on holding signs at protests on a public campus. A ban on signs is an insult to our liberties and has no value in preventing violence on campus."

The story has a positive ending, however, as the students filed a First Amendment challenge and secured a favorable settlement. Under the revised policy adopted by SCC in the wake of the lawsuit, "any person or group may use, without prior notification, any publicly accessible outdoor area" (with some exceptions) for the purposes of "speaking, non-verbal expressive conduct, the distribution of literature, displaying signage, and circulating petitions."

So if the cases continue to pile up against free speech zones, with Modesto Junior College merely the latest, why do colleges and universities continue to enforce these policies? A 2013 survey by FIRE found that roughly one in six universities maintains some type of free speech zone policy restricting where, when, and under what circumstances students can protest, distribute literature, or otherwise express themselves on campus. That is far too high a number to be acceptable.

The good news is that courts have repeatedly made clear that these restrictions are unconstitutional and indefensible on public university campuses. As long as students are willing to stand up to their institutions and challenge these policies, they will continue to fall in court. And of course, FIRE will continue to use both public and legal advocacy against their stubborn existence.

It is likely that in 2014, we will see additional campus free speech zones defeated. Students' First Amendment rights will be better off for it.