When Colleges Confine Free Speech to a ‘Zone,’ It Isn’t Free

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By Emerson Sykes and Vera Eidelman

On certain college campuses, administrators have created “Free Speech Zones” — spaces where people are allowed to speak, protest, or gather signatures for causes they believe in. While it may sound like these zones are designed to promote speech, they actually do the opposite by confining political expression to designated areas, often in out-of-the-way locations on campus.

That’s why this week, in a legal challenge to Arkansas State University’s “Free Expression Areas” policy, we filed a friend-of-the-court brief along with the Foundation for Individual Rights in Education arguing that such rules violate the First Amendment.

A university’s job is to teach students how to be contributing members of society, not to stifle expression. And our brief — which we filed on behalf of Peace & Love, a student group at Arkansas State University devoted to promoting harmony and understanding through random acts of kindness — aims to make sure that administrators don’t forget that.

The First Amendment firmly protects speech in public areas such as streets and parks. This is just as true on the campuses of public colleges — and for good reason. Our history is filled with examples of student demonstrations that have raised awareness about crucial issues in our society, from protesting the Vietnam War to opposing apartheid in South Africa to standing up for the rights of sexual assault survivors.

Notwithstanding the importance of public speech and protest, the government can constitutionally impose rules to limit when, where, and how people speak in public forums — but only if the rules are clearly defined, narrowly tailored to important government interests, and leave open many other ways through which people can get their message out.

For example, rules can limit the use of sound amplification for demonstrations in residential neighborhoods or prohibit demonstrations in the middle of the night without violating the Constitution. But this does not give a pass to the government to impose blanket limits on speech in outdoor public places.

Yet, at Arkansas State University, political speech is confined to “Free Expression Areas” by default. Even to use those zones — which are only open until 9 p.m. during the week and not at all on weekends — people must first reserve the space with the university administration. And to give speeches or hold demonstrations outside them, people must seek permission from the administration three days in advance, completely banning spontaneous events and protests in response to breaking news. In effect, the university must approve any public political expression before it happens.

The problem is, “Free Expression Areas” are not a thing under the Constitution — all public spaces in America are free-expression areas.

Last year, when an Arkansas State student set up a table in front of the student union to gather signatures in an attempt to start a campus chapter of Turning Point USA, the school demanded that she stop. While collecting signatures outside a student union is a daily reality on most campuses, at Arkansas State it was enough for the police to be called. There was one other person working with the student, a Turning Point representative, and the school issued her a criminal trespass warning.

While the plaintiffs in this case were doing nothing more than asking students for signatures, people affiliated with Turning Point have exhibited racism, sexism, and transphobia. We at the ACLU stand unequivocally against such abhorrent views. At the same time, we oppose government attempts to impose excessive restrictions on speakers, regardless of their ideological viewpoint — in large part because we know that, if given such power, the government will inevitably use it to silence those who criticize them or push for societal change.

Indeed, at Arkansas State, the free speech zone policy has affected not only groups like Turning Point, but also ones like our client, Peace & Love, which is dedicated to diversity in all its forms, community service, and bridging divisions between people. Despite its noble intentions, Peace & Love has had difficulty getting permission to use “Free Expression Areas” for its public outreach and activities. The student group has also been prevented from speaking in areas where its members could best spread the word about past and future events, including an annual fashion show event to promote and raise money for the Salvation Army.

This isn’t surprising. Giving school administrators broad power to censor speech threatens everyone’s right to express themselves on public campuses, and the Constitution will not allow it.

Emerson Sykes and Vera Eidelman are Staff Attorneys with the ACLU Speech, Privacy and Technology Project


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4 thoughts on “When Colleges Confine Free Speech to a ‘Zone,’ It Isn’t Free”

  1. Edgar Wai

    I think there is a fundamental difference between:

    1) “People are allowed to express their view to those that want to listen, and the government must always listen.”

    and 

    2) “People are allowed to force others to listen regardless whether the target is the government or an individual.”

    I think the intent of the constitution is to protect (1). There are countries in the world where you cannot even do (1). I don’t think the constitution protects (2). Individuals should be allowed to not take any interest of an issue, especially in the setting of a school. It does not matter how loud you speak. Even in a public library, people need to be quiet and the reason is functional. People normally can’t read or think about something when they are also hearing verbal words at the same time. You could imagine the entire university ground as one big library.

    Creating “free speech zones” might just be a shortcut to eliminate any conflict over requiring the administration to decide on a case by case basis immediately whether a particular speech is allowed. According to the author, the school also allowed the the speakers to propose doing free speech in any space as long as the speaker gives the admin enough time (3 days) to review. The Admin is trying to avoid any harm because they have the responsibility to protect the students. The Admin cannot react in real-time. A speaker not following the rule could pop up anywhere anytime, and forces the admin to response 24/7. Who is paying for that overtime? Why make the situation so stressful for everyone? So, in this case, I think it would be the fault of the speaker to not have considered these issues and be fair and respectful to what the admin is trying to do.

    Alternatives include asking the particular school to add more “free speech” zones or add a free speech forum online so that students can easily hear the voices of issues that other students care about. The point is that you want to let people to opt in and protect everyone in that environment. But due to respect, you don’t want to create a situation where you speak and others have to opt out to avoid you.

    1. Jim Hoch

      The concept of free speech is that a person is entitled to express an opinion at anytime anywhere without fear of retaliation. Any restriction on people’s right to express an opinion must be as narrow as possible and be clearly justified on safety or other grounds. 
      “you don’t want to create a situation where you speak and others have to opt out to avoid you”
      Yes, you explicitly have that right.

  2. Edgar Wai

    To the authors:

    I went to your ACLU website at https://www.aclu.org/ and could not identify a public forum for people to discuss the issues that your organization care about. Maybe you could start by doing that. 

    Before asking bystanders to take sides, the first step should be to engage the opposition in a dialogue to iron out the misunderstandings. If the discussion is not fruitful, the discussion itself will let everyone see and decide who is right and who is wrong. If your cause is just, it will save everyone’s time. 

    Wouldn’t it be great that when people think of Free Speech, they automatically go to ACLU forum and duke it out? I think that will be very academic and beneficial. It will be the website to go to for intellectuals.

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