Free Speech Zones at Institutions of Higher Education

Free speech zones on college campuses were a result of the social activism during the 1960s and 1970s at institutions of higher education throughout the country. Daniel L. Hudson, Jr. of the First Amendment Center says that universities began instituting free speech zones in the 1980s and 1990s. According to Joseph D. Herrold, the zones were created in order to limit free speech to a specific area on a campus, thus restricting the notion that colleges and universities are open environments for the exchange of differing ideas and opinions. This "marketplace of ideas" is a First Amendment concept first introduced by Supreme Court Justice Oliver Wendell Holmes in his 1919 dissenting opinion of Abrams v. U.S. and later applied to college campuses in the Supreme Court's Healy et al v. James et al opinion in 1972 ("The college classroom with its surrounding environs is peculiarly the 'marketplace of ideas'"). In an amendment to the Higher Education Opportunity Actin 2008, it states that "an institution of higher education should facilitate the free and open exchange of ideas" and "students should not be intimidated, harassed, discouraged from speaking out, or discriminated against".

The marketplace of ideas in the classroom and on campus brings about tough issues for universities with respect to free speech zones. While the Supreme Court holds that the First Amendment is an important concept for any educational institution, the opinion found in Widmar v. Vincent dictates that universities have the "right to exclude even First Amendment activities that violate reasonable campus rules or substantially interfere with the opportunity of other students to obtain an education" even though characteristics of universities are similar to those of a traditional public forum: public streets, sidewalks, and parks. In traditional public forums, the governing body may impose reasonable time, place, and manner restrictions along with other restrictions that are deemed to be content neutral, narrowly drawn, and leave open alternative channels for communication. [1] However, the courts ruled in Cornelius v. NAACP Legal Defense & Educational Fund that "The First Amendment does not forbid a viewpoint-neutral exclusion of speakers who would disrupt a nonpublic forum and hinder its effectiveness for its intended purpose." Basically, the court's decision dictates that if the speaker hinders the intended purpose of the forum, the viewpoint of the individual does not matter.

Lucien Capone, counsel for the University of North Carolina at Greensboro, claims that, "The university is not open to just anyone who wants to come. But if you are a student at the university... a student shouldn't be deprived of expressing an opinion."[2] College campuses, which are considered traditional public forums, are only considered public forums to university students whether designated by the university or not, according to the courts rulings in Widmar v. Vincent.[3] Because these areas are considered public forums to students only, non-students must follow more restrictive guidelines when exercising free speech on college campuses. Many university policies require that outsiders reserve a space ahead of time or be sponsored by a registered on-campus organization. At the University of Maryland at College Park, non-student speakers are allowed to speak from only one stage and hand out leaflets along one sidewalk. The university's American Civil Liberties Union (ACLU) student chapter filed suit claiming the small confines did not allow students to hear varying views on "vital issues". The argument was rejected by the court system.[4] Other organizations do not agree with such policies. Will Creeley , the director of legal and public advocacy for Foundation for Individual Rights in Education (FIRE), believes that reserving time for expression of opinions is unconstitutional and unreasonable.

There have been several cases involving non-students' rights to free speech at locations on college campuses. In the case of Bowman v. White, a policy at the University of Arkansas limited off-campus speakers to a mere five days per semester was deemed unconstitutional because it was too narrowly tailored. The courts held that the policy's other requirements, such as requiring speakers to secure a permit and a "dead day" ban, were constitutional. James Gilles ,also known as "Brother Jim," is a travelling evangelist who frequently visits campuses to speak. After being thrown off the lawn of the Vincennes University campus because he was not invited by the university to speak, Gilles filed against the school for violating his First Amendment rights in Gilles v. Blanchard. The court ruled against Gilles stating that the area in which he wanted to speak was considered a "limited public forum" whereby the university had grounds to deny him access and limit the area to activities that only "furthered the interests of the university community".[5]

In the on-going case of Rock for Life-UMBC v. Hrabowski, arguments are being made by Rock for Life, a group which advocates for "human rights for all people, born and preborn," that the University of Maryland, Baltimore County (UMBC) was not content neutral when it did not allow the group to use a preferred location for its anti-abortion protest. Lawyers for the Alliance Defense Fund Center for Academic Freedom (ADF) filed suit on behalf of the group, which caused UMBC to change some of its policies regarding free speech. The university then appealed to the United States Court of Appeals where the court ruled against Rock for Life stating that UMBC did not violate the First Amendment because the signs being used in the protest would have blocked pathways and entrances. Following the ruling, ADF submitted a petition for a writ of certiorari (still pending) to the Supreme Court of the United States in March of 2011.

As Wallingford Law, a group of practicing attorneys based in Kentucky points out, administrators at universities are now pressured to adopt policies prohibiting speech that may be found offensive to any groups. Hudson says free speech zones are the way in which university administrators move student groups and other free speech seekers away from other students seeking to obtain their education. The problem, he says, arises when these zones restrict too much speech. This can create what is known as a chilling effect, the "inhibition or discouragement of the legitimite exercise of a constitutional right". The Foundation for Individual Rights in Education's attorney Greg Lukianoff believes that institutions make decisions regarding free speech zones based on reasons other than education. He states that free speech zones "guarantees them peace and quiet and control. Frankly, if you're an administrator, your number one concern is not academic freedom...It's making sure that you don't get complaints from parents, making sure that you maintain good PR."[6]

University administrators face a tough decision: Restrict free speech zones as much as possibly afforded by the First Amendment, or deem more areas free speech zones, thus allowing non-students the opportunity to threaten campus security and order. For example, at The University of Mississippi, the Ku Klux Klan exercised their right to free speech during the 2009 Presidential Debate between Barack Obama and John McCain as did the traveling evangelist Micah Armstrong, who incites volatile debates at campuses across the country.

Dennis Hayes, the Director of Academics for Academic Freedom, explains that universities must strive to protect speech of any and all types, regardless of content, in order to retain all freedoms afforded by the First Amendment to academics.

Many institutions are doing away with free speech zones completely. In 2010, San Francisco State University went from a very strict free speech zone policy to allowing "spontaneous events". After legal pressure from a civil liberties organization, West Virginia University abolished its free-speech zones. Other schools, such as University of Texas and New Mexico State University have altered their policies as well due to legal challenges. [7]

The subject of free speech zones creates a great deal of controversy at public institutions because they are a public entity and are considered to be "acting under color of the government'[8] and are thus liable to First Amendment regulations. This is not the case with private institutions. Because private institutions are a private entity and are protected from excessive government interference by the U.S. Constitution's Bill of Rights, the institutions can create their own speech restrictions which the students are required to adhere to in order to maintain enrollment at the institution. Some states have created statutes which protect the rights of all students including those at private institutions.[9] In California, the Leonard Law states that "a student shall have the same right to exercise his or her right to free speech on campus as he or she enjoys when off campus." A state constitutional law in New Jersey states that "every person may speak freely...on all subjects" which protected a student at Princeton University in Princeton University v. Schmid.

Historically, private institutions allowed more freedoms than most public institutions until recently by creating new policies requiring small, unreasonable free speech zones. A study conducted by FIRE found that 64 percent of the 110 private institutions that were included in the 2008 US News' Rankings promoted their schools as institutions of free speech and thought, but also had strict policies in place restricting speech.[10] Some students at Brigham Young University, a private institution, were very pleased when they were allowed to briefly protest on campus during a political visit.

This is not the case with all private institutions. According to FIRE, Carnegie Mellon University was recently named one of The Seven Best Colleges for Free Speech The university received this honor because the university "values the freedoms of speech, thought, expression and assembly--in themselves and as part of our core educational and intellectual mission. If individuals are to cherish freedom, they must experience it. The very concept of freedom assumes that people usually choose wisely from a range of available ideas and that the range and implications of ideas cannot be fully understood unless we hold vital our rights to know, to express, and to choose. The university must be a place where all ideas may be expressed freely and where no alternative is withheld from consideration." The speech code policy at Carnegie Mellon University allows anyone to distribute materials, protest, or make speeches outside any building on campus, making most of campus a free speech zone.

While Carnegie Mellon University received praises from FIRE for its value of free speech, another private institution did not. Even though its Free Expression Policy was given a green light by FIRE, Yale University was listed by FIRE among one of the 12 Worst Colleges for Free Speech because it has repeatedly been an offender against freedom of speech. According to Yale's policy for protests and demonstrations, the campus is open only to speakers that the students or faculty have invited to speak and only after appropriate arrangements have been made. The policy makes no mention of locations where the individuals are allowed to speak.

The Foundation for Individual Rights in Education's mission is to protect the individual's rights at the university level including freedom of speech, among others. FIRE often helps individual student's bring light to an institution over its policies and actions regarding those policies. In several instances, FIRE has helped reverse institutions decisions regarding these rights. In the case of Valdosta State University's speech codes, FIRE found the organization's speech zones to be too restricted.

Watch FIRE in Action: Valdosta State University (Hi-Res) in Educational  |  View More Free Videos Online at

In addition to shedding light on specific instances that may infringe upon students' First Amendment rights, FIRE also publishes a yearly review of speech policies at 390 institutions of higher education. According to the 2011 report findings, 67 percent of the schools received a red-light rating - the institutions had at least one speech policy restricting its respective students' First Amendment rights. Three major institutions in the state of Mississippi all received an overall red-light rating. The University of Mississippi (UM) received a red-light rating for its written policies and a yellow-light for its policies regarding free speech zones. The UM policy states that in order to demonstrate, students must make a formal request to the Dean of Students Office one day in advance and are restricted to using only three locations on the UM campus; however, Dean of Students, Dr. Thomas 'Sparky' Reardon, states that "the entire campus is a free speech zone." The locations stated in the policy are a mere suggestion. Mississippi State University, however, received a green-light for its Free Speech and Assembly Policy which states that all traditional public forums on campus are available to individuals and groups without reservation for the use of free speech, whether planned or spontaneous. A yellow-light rating was given to the University of Southern Mississippi for its Free Speech Zone policy. The policy states that speakers may use the "Speaker's Corner" which is located at the south end of the union and is available on a first-come, first-serve basis without prior registration. Because the area is currently under construction, the policy states that a temporary location would be determined by the Student Activities Office.

As seen in certain instances such as West Virginia, Texas, and New Mexico State universities, legal challenges pose a major threat to not only free speech zones, but all other First Amendment rights for both students and non-students. While most universities hold that free speech zones are an integral part of the university setting, the courts have yet to agree on a consistent ruling across the higher education spectrum. Until that time, free speech zones will remain a troublesome topic for university administrators as organizations like FIRE fight to rid college campuses of free speech zones throughout the country.
  1. ^ Melear, K.B., Alexander, L.B., Hendrickson, R.M., and Beckham, J. (2010). Student free speech in public higher education. Dayton, OH: Education Law Association.
  2. ^ Giovanelli, L. (2007). WSSU assigns area for protests: Many have criticized such free-speech zones. Winston-Salem Journal. Retrieved from EBSCOhost.
  3. ^ Melear, K.B., Alexander, L.B., Hendrickson, R.M., and Beckham, J. (2010). Student free speech in public higher education. Dayton, OH: Education Law Association.
  4. ^ Leo, J. (2003). Taking it off the streets. U.S. News and World Report, 134(16), 50.
  5. ^ Melear, K.B., Alexander, L.B., Hendrickson, R.M., and Beckham, J. (2010). Student free speech in public higher education. Dayton, OH: Education Law Association.
  6. ^ Edwards, B. (2002). Profile: College students protest against so-called free speech zones at their campuses, saying that they violate their First Amendment rights. Morning Edition (NPR). Retrieved from EBSCOhost.
  7. ^ Argetsinger, A. (2003). ACLU-backed case challenges U-Md's 'free speech zones'. The Washington Post. Retrieved from EBSCOhost.
  8. ^ Bird, L.E., Mackin, M.B., and Schuster, S.K. (2006). The First Amendment on campus: A handbook for college and university administrators. United States: National Association of Student Personnel Administrators.
  9. ^ French, D., Lukianoff, G., and Silvergate, H. (2005). FIRE's guide to free speech on campus. Philadelphia, PA: Foundation for the Individual Rights in Education.
  10. ^ Sarabyn, K. (2010). Free speech at private institutions. Journal of Law & Education, 39(2), 145-182.