January 4, 2008
Sent by U.S. Mail and Facsimile (336-750-2049)
Dear Chancellor Reaves:
As you can see from our Directors and Board of Advisors, the Foundation for Individual Rights in Education (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 this case, freedom of speech and expression on America’s college campuses. Our website, www.thefire-dev.wp.eresources.ws, will give you a greater sense of our identity and activities.
FIRE is concerned about the threat to free speech posed by Winston-Salem State University’s (WSSU’s) new policy restricting demonstrations to one small area of campus. The policy, which designates just one "Breezeway" on WSSU’s campus for student assemblies and demonstrations, chills expression on WSSU’s campus and ignores constitutional guarantees of freedom of speech that WSSU, as a state-supported institution, is obligated to protect. WSSU’s implementation of a "free speech zone" has no place at an institution committed to intellectual rigor, robust debate, and a free and vibrant community.
This is our understanding of the facts. Please inform us if you believe we are in error. Section 4.2 of WSSU’s Free Speech Zone Policy, approved by the WSSU Board of Trustees on December 14, 2007, provides that "the University permits assemblies and public addresses by University, Student, and Non-University groups or individuals at the Thompson Center Breezeway only."(Emphasis added.) According to Section 4.1 of the policy, such assemblies and public addresses must be scheduled "at least 3 business days before the proposed time and date of the event." Section 5 of the policy goes on to designate the Thompson Center Breezeway as the "Unscheduled Public Speaking area" for the campus, which is confusing in light of the fact that Section 4.2 explicitly designates the Breezeway as the "only" area on campus for demonstrations, whether scheduled or unscheduled.
WSSU’s Free Speech Zone Policy raises numerous constitutional concerns. First, on its face, the policy limits all student assemblies and demonstrations-whether scheduled or unscheduled-to the Thompson Center Breezeway. One need only glance at a map of WSSU’s campus to see that the Breezeway comprises only a very small percentage of WSSU’s campus. The sole possible defense of this policy would be that it is a "reasonable time, place and manner" restriction as deemed constitutionally permissible by cases like Ward v. Rock Against Racism, 491 U.S. 781 (1989). There is nothing "reasonable," however, about transforming the vast majority of the university’s property-indeed, public property-into a "censorship area," and in maintaining a system of onerous requirements by which students must abide in order to exercise their fundamental rights. 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 enough nor substantial enough to justify such restrictions.
Second, the policy is impermissibly vague. While on its face it limits all assembly to the Thompson Center Breezeway (per Sections 4.2 and 5.2), it also makes reference to assemblies taking place on other areas of campus. For example, Section 4.4 refers to "all outdoor assemblies and public addresses, including those at the Thompson Center Breezeway…." As an attorney with expertise in constitutional law, I cannot understand precisely where assembly is permitted on WSSU’s campus; how, then, are WSSU students supposed to figure it out? As one federal judge recently wrote in striking down a university’s speech code:
We must assess regulatory language in the real world context in which the persons being regulated will encounter that language. The persons being regulated here are college students, not scholars of First Amendment law…. What path is a college student who faces this regulatory situation most likely to follow? Is she more likely to feel that she should heed the relatively specific proscriptions of the Code that are set forth in words she thinks she understands, or is she more likely to feel that she can engage in conduct that violates those proscriptions (and thus is risky and likely controversial) in the hope that the powers-that-be will agree, after the fact, that the course of action she chose was protected by the First Amendment?
College Republicans at San Francisco State University v. Reed, No. 07-3542 (N.D. Cal. 2007).
Based on the plain language of the policy, students reading WSSU’s Free Speech Zone Policy may reasonably believe that all assemblies and demonstrations are restricted to the Thompson Center Breezeway, and act accordingly. Thus, even if the policy was not intended to restrict all assembly solely to the Breezeway, it will have precisely such a chilling effect on campus expression. This result is unacceptable.
Finally, even if scheduled demonstrations are, in fact, permitted elsewhere on campus, WSSU’s decision to restrict spontaneous expression to just one small area of campus is inconsistent with its obligation, as a public institution, to uphold the First Amendment rights of its students. Rallies and demonstrations are often spontaneous responses to unfolding events; to require prior reservations for demonstrations virtually everywhere on campus is to suppress free and open discourse on campus.
FIRE has challenged the establishment of free speech zones at universities across the nation, including at the University of North Carolina-Greensboro, West Virginia University, Seminole Community College in Florida, Citrus College in California, Texas Tech University, the University of Nevada-Reno, and Colorado State University. In all of these cases, the institutions that were challenged either decided on their own to open up their campuses to expressive activities or were forced by a court to do so. For instance, 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). WSSU would be well advised to take such substantial legal precedent into account in considering its own policies.
It is imperative that WSSU immediately revise its unconstitutional Free Speech Zone Policy. We offer you the following guidelines to help you revise your speech policies:
1. The default position of any policy should be that free speech is the norm all over the campus. In general, policies should say what a university cannot do in specific language, and, to a lesser extent, what restrictions are permissible and when. An ideal policy would mirror the Bill of Rights.
2. Schools cannot restrict speech to a small portion of campus, nor to inaccessible or sparsely used or populated areas of the campus. Speech must be generally accessible to the population at large-and especially to the target audience.
3. Speech may not be unduly restricted by pre-registration regulations, onerous monetary deposit requirements, or expensive insurance requirements. No rule that allows the school substantial discretion to impose conditions on speech is allowable. Discretionary decisions need to be "content and viewpoint neutral," meaning that they only implicate factors such as noise or interference with traffic flow, and nothing relating to the substance of the speech.
4. Speech activities should not be unduly restricted by "neatness" and "cleanliness" considerations. A school may require that students clean up after a rally or a leafleting, but the school may not stop leafleting because of a general fear that students might not clean up afterwards. Of course, if a particular group has a demonstrated history of not cleaning up after itself, then modest restrictions might be in order-such as a monetary bond to cover the cost of a cleaning service. Only in light of past failures should a group be saddled with such prior conditions.
5. Demonstrative activities should not be restricted in the name of aesthetics. It is reasonable to ask students to restore the campus area to its original condition after a large demonstration or leafleting (beyond normal wear and tear, which is a normal cost of operation for a university), but it is unreasonable to prohibit an expressive activity in advance for fear that it will make a mess or be unaesthetic. (This is related to No. 4, above.)
6. Virtually all universities already have the power, through existing rules, to prevent the type of disruptive conduct they might fear would take place. They can stop demonstrations that substantially impede the function of the university, block traffic flow, or prevent students from sleeping or studying. They can punish students who engage in vandalism or violence. The university also has increased power to regulate the presence of those speakers who have not been invited to campus and who are otherwise unaffiliated with the university. However, the university should not simply assume before the fact that student or faculty expression will be impermissibly disruptive. Rather, the university should accept its role as an ultimate free speech zone.
Please spare WSSU the embarrassment of fighting against the Bill of Rights-a statement of both law and principle by which the university is legally and morally bound. We urge WSSU to undo these unjust policies and to tell the world that free speech at WSSU is to be celebrated, honored, and broadened-not feared, restrained, and hidden. Let your students exercise their basic legal, moral, and human rights; let them speak, assemble, and protest as their consciences dictate.
We look forward to hearing from you. We request a response on this matter by January 18, 2008.
Winston-Salem State University