Many public universities and colleges in California want to establish policies regarding what kind of speech can occur on campus. But doing so can be hazardous. Imagine you are tasked with establishing a policy that governs organized student speech on your campus. What would be reasonable?
Without a lot of legal guidance, you might propose the following: being careful, you might say, “none of the campus is considered any kind of ‘public forum’ for speech activities.” But, to be generous, you might also say, “all of the walkways surrounding the school library will be considered a free speech zone for students and outsiders.” The area is not heavily trafficked, and makes up only a small portion of the campus, but you expect that at least some students and other passersby will be able to see demonstrations or activities in the area specified. Again being generous, you write, “student organizations and outside groups must apply to use the free speech zone for demonstrations or distributing literature, and the college guarantees it will respond to the applications in fifteen (15) days, and will only deny permission for a proposed demonstration if it is manifestly inappropriate for an academic environment as determined by the Chancellor or by his or her designees.”
This campus policy doesn’t sound crazy. And it certainly does not create a police state or Orwellian dystopia. After all, it permits even demonstrations that criticize the college or its policies, since most people would agree such demonstrations would not, if reasonable, qualify as “manifestly inappropriate for an academic environment.”
This campus policy, however, has a good risk of being struck down by a Court as a violation of the freedom of speech guarantees of the U.S Constitution and the California Constitution. The constitutional protection of freedom of speech governs a public college, just like it governs other branches of government.
- First, the limitation on speech that is “manifestly inappropriate for an academic environment” could be considered too vague a standard to withstand a free speech challenge. It allows the Chancellor or his or her designees essentially to pick and choose what speech will take place. Even if the administration has no intention of stifling any viewpoints or excluding any organizations, and never exercises this discretion to limit speech, a Court could still determine that the provision itself is vague enough to afford administrators this ability to censor. It could allow the college to discriminate based on viewpoint, and viewpoint discrimination is at the core of what constitutional free speech law seeks to prohibit.
- Second, a Court might also decide the policy imposes an improper “prior restraint” on speech. A system of “prior restraint” is one that requires speech to be licensed before it can take place; a prior restraint punishes speech not for what it is but simply if it lacks license in advance. Not all prior restraints violate free speech laws (for example, requiring a license to have a parade so that two parades do not occur on a street simultaneously). But Courts look with disfavor on prior restraints, and will strike them if they have certain flaws, including if they confer too much discretion on administrators to deny licenses, or if administrators are allowed too much time to decide whether to issue a license. (Prior restraints have a long history: they stem from an English practice in the 16th and 17thcenturies of effectively censoring speech by requiring presses to navigate elaborate licensing systems; if the authorities did not like the proposed viewpoints, then speakers’ applications could be conveniently lost or delayed by the licensing agency resulting in de facto censorship.)
- In the example above, a Court might consider 15 days to be too far in advance for a speaker or group to have to ask a college for permission to speak. Courts have held that a requirement of 3 days’ notice is permissible, but suggest that significantly longer periods would not be. Many colleges do not have any permission or screening procedures and instead only require sufficient advance notice of activities.
- Finally, it would be possible for a Court to view the single “free speech zone” near the library as too remote, and inadequate for student and outside speakers to gain access to the campus. Courts have found colleges in violation of free speech law for having remote or difficult-to-access free speech areas. To best withstand such challenges, designated free speech areas should be multiple, and close to places where the speakers will have access to passersby. Applicable time, place, and manner restrictions typically require demonstrators in the speech areas to refrain from touching or following passersby, to use limited amplification and noise, and to pick up dropped pamphlets or other items that resulted from their activity.
College administrators are well-advised to learn at least the rudiments of what constitutional free speech principles require. It is fortunately a very interesting subject matter, and applying what you learn will benefit society and encourage students to understand and exercise their rights as citizens.