Deans memo 2011

TO:  Various deans and other officials at Radford University
RE: Free speech policies at Radford University
From: Prof. Bill Kovarik
Date: Oct. 15, 2011

As a member of the university faculty responsible for instruction in First Amendment and Constitutional issues, I believe there is a responsibility to provide information to students, faculty members and the administration when university policies concerning free speech are in question.

This memo addresses three of the most contentious issues regarding free speech on the RU campus and, insofar as possible, avoids personal opinion.  It is meant to be informative and to encourage constructive legally-grounded thinking. As a caveat, it is possible that practicing attorneys or the Office of the Attorney General would have differing views.

This memo concludes that both the City of Radford fraternity / sorority sign policies and  the RU bulletin board policies are likely to be seen as Constitutionally infirm under judicial review.  Free speech zone policies, on the other hand, are not out of line with similar policies at other universities, but aspects of enforcement have proven contentious.

Contents of this memo:  

I. Existing Regulations

  1. Fraternity and Sorority signage in the University District
  2. Bulletin board approval policies
  3. Free speech zone policy

II. Constitutional tests

A. Forum Analysis

B. Strict Scrutiny (religious and political speech)

C. Central Hudson test (advertising / commercial speech)

III. Policy analysis using First Amendment legal tests   

  1. Fraternity and sorority signage in the University District
  2. Bulletin board approval policy
  3. Free speech zone policy

IV. Virginia Constitution  

A. Historical perspective


I. Existing regulations

1. Fraternity and sorority signage in the University District

Radford Virginia City Code

http://library1.municode.com/default-test/home.htm?infobase=11462&doc_action=whatsnew
Sec. 120.1-64.  Additional requirements for Greek organizations/signs.

Greek organization sign is defined as any sign, flag or other object used to identify a Greek organization (fraternity, sorority, or club) are permitted under the following conditions:

Flag requirements:

(1)   Flags must be located in the UD University/Business District or Business District (generally five blocks surrounding the Radford University main campus).

(2)   Flags shall not exceed three-foot by five-foot in size.

(3)   Flag design and location must be approved by Radford University’s Office of Student Affairs and the zoning administrator.

(4)   A maximum of one flag per organization is permitted.

Display of Greek letters, banners, signs, etc, other than flags, are permitted only during special events under the following conditions:

(1)   Special events are limited to Radford University Homecoming, Rush, and Greek Week.

(2)   The location and type of displays must be approved by Radford University’s Office of Student Affairs and the zoning administrator.

(3)   Letters, signs, banners, decorations, etc, may be hung on Friday before the event and must be removed by Sunday evening following the event.

(Ord. No. 1553, 5-14-07)

1a.  RU Off Campus Housing Policy

This  Radford policy  is still being enforced through Greek Life, although high-level university officials say a) they can’t find it on the web and b) it is being reviewed.

 

  • Flags and Banners

City ordinance prohibits the hanging of signs and banners in residential areas, with very few exceptions. Those campus groups, including fraternities and sororities, that are interested in hanging flags and/or banners should contact the Office of the Dean of Students for more information. Students that choose to live in house used by a Greek organization need to be aware of the standards that have been set up by the City/University Joint Commission on Public Affairs concerning the display of flags, banners and signs that display letters.

  • Flags signifying Greek letters or symbols are permitted under the following conditions:

– Flags must be located in University Multi-Family or Busines zone (generally this area is five blocks east and west of the Campus)

– Flags shall not exceed 3 x 5 feet in size

– Flag design and location must be approved by the University

– Each organization is permitted one flag

Display of letters, banners, signs, etc. other than flags are permitted ONLY during special events under the following conditions:

– Special events are limited to Homecoming, Rush, and Greek Week

– The location and type of displays must be approved by Radford University

– Letters, signs, banners, decorations, etc. may be hung on Friday before the event and must be removed by Sunday evening following the event

Other than under these circumstances, signs are prohibited in residential areas Additional questions concerning the display of Greek letters can be answered by the Greek Life Coordinator

2. Bulletin Boards

Student Activities / Publicity

http://www.radford.edu/content/student-affairs/home/student-activities/policies/sa-policies.html#par_text_48

Printed materials created for public posting, (i.e. flyers, banners), by recognized clubs/ organizations and university departments, must gain approval from the Office of the Director in the Department of Student Activities before displaying the material.

Printed publicity and/or advertisements should be limited to 8.5” X 11” flyers. Exceptions will be made by the Department of Student Activities on a limited basis for events of major interest to the University community. Maximum size not to exceed 18” X 22”.

A total of 25 pieces of printed materials will be approved and imprinted with the official Department of Student Activities “date stamp”.

The direct posting of materials is prohibited in the residence halls. A maximum of ninety three (93) advertisements may be taken to the Office of Residential Life to be posted by Residential Life Staff after the advertisement has been approved by the Department of Student Activities.

The official stamp from the Department of Student Activities identifies the advertising of events sponsored by recognized student organizations and University departments. Because the University does not endorse, support or sponsor the publicity, event and/or advertiser for personal and off-campus commercial or public service organizations the official stamp is not required.

3. Demonstration areas

http://www.radford.edu/content/student-affairs/home/student-activities/policies/sa-policies.html#par_text_37.

Heth Plaza and the Hurlburt Student Center Plaza have been designated as the primary Demonstration Areas at Radford University for demonstrations or peaceful assemblies. Standard reservation procedures must be followed if a demonstration is to be held on campus; this includes registering the event with the Event Planning Office. Exceptions can be made for alternative sites on campus, as needed, by the Director of Student Activities. Outdoor on-campus activities involving the use of amplified sound must be approved by the Director of Student Activities.

II. Constitutional tests

General

RU is an agency of the Commonwealth of Virginia, and thus all RU regulations and rules of conduct are subject to review under the First Amendment of the United States Constitution  and Section 12 of the Virginia Constitution.  First Amendment review would likely include a) forum analysis, b) strict scrutiny review or c) review for advertising regulation under the Central Hudson test.  There is also a responsibility to consider the historical precedent of the Virginia Constitution’s Declaration of Rights, as argued in Section IV.

A. Forum analysisUniversities are usually considered to be limited public forums, which means that all student speech is protected under the First Amendment. 

According to the Student Press Law Center:

www.splc.org/knowyourrights/legalresearch.asp?id=109

Almost thirty years ago, the Supreme Court declared that “the campus of a public university, at least for its students, possesses many of the characteristics of a public forum.” (Widmar v. Vincent, 454 U.S. 263, 274 n.5 , 1981.) The Court in Widmar v. Vincent, and many other courts subsequently, hedged its ruling by saying that campuses are not traditional public fora for the speech of non-students. Although some have argued that entire campuses should be considered traditional public fora because of the presence of sidewalks, streets and parks, courts generally have granted “designated” or “limited” public forum status to the campus as a whole. Courts recently have recognized that a campus is made up of a “variety of fora,”(Bowman v. White, 444 F.3d 967, 976, 8th Cir. 2006. ) some designated as public and some limited to particular content or non-public. (In recent years, schools have attempted to designate specific portions of their campuses as “free speech zones,” thereby hoping to apportion the campus into small designated public forum areas and large non-public forum areas. These attempts have prompted their own set of constitutional challenges, on the grounds that small or inconveniently located zones fail to provide reasonable access to reach the audience

These issues are described more fully in the SPLC’s Student Media Guide to Campus Free-Speech Zones, available at http://splc.org/knowyourrights/legalresearch.asp?id=78.

…  In all public fora (traditional, designated or limited), the next question to consider is whether the prohibition on distribution is content-neutral or content-based. Courts will overturn content-based restrictions unless they are narrowly tailored in service of a compelling government interest. Examples of content-based restrictions would be proscribing the distribution of any religious pamphlets or political endorsements. It is rare for an ordinance to satisfy this standard of strict judicial scrutiny.

… Even if a regulation is seemingly not content-based, courts will invalidate the regulation if it yields unbridled discretion to an executive official.

Campus parks, streets, sidewalks and “other similar common areas” have been held to be traditional public forums for the University’s students.” Bourgault v. Yudof, 316 F. Supp.2d 411 (N.D. Tex. 2004).  According to the SPLC:

“Texas Tech could not limit speech activities in those areas … without showing that doing so would serve a significant purpose. It would also have to show that its rules were content-neutral. Finally, any policy that prohibited speech in such “public forum” areas had to be drawn narrowly and leave plenty of other opportunities for free speech. This is traditionally a very difficult test for government officials to meet.

Highly restrictive campus speech zone policies have also been revised at a number of colleges and universities in recent years, including Tufts, Appalachian State, West Virginia University and Penn State.  A major case in 2010 was  Smith v. Tarrant County College District, 2010 u.S. Dist. LExIS 108973 (N.D. Tex. Oct. 13, 2010), in which a community college lost a $250,000 lawsuit after banning a student protest.  (See “Spotlight on Speech Codes 2011: The State of Free Speech on Our Nation’s Campuses,”  http://thefire.org/code/speechcodereport/ ).

B. Strict Scrutiny

The “strict scrutiny” test is a yardstick of judicial review of laws or regulations (federal, state,  or local) involving religious or political speech.  It is the most stringent of those applied by US courts in civil and Constitutional cases.  Under a First Amendment  strict scrutiny review, a state or federal agency’s interest in applying a law or regulation is weighed against the Constitutional rights of citizens.

To pass strict scrutiny review, a law or regulation must:

1. Advance a compelling government interest;

2. Be narrowly tailored to achieve that interest;

3. Provide the least restrictive means for achieving that interest.

C. Central Hudson Test

Central Hudson Gas & Electric Corp. v. Public Service Commission (PSC)
of New York,
447 U.S. 557 1980

The Central Hudson test is the most widely applied judicial review of advertising and commercial speech issues.  The case itself involved advertising utility services in the middle of the energy crisis of the late 1970s, and the court found that the state government’s interest in promoting energy savings was not a valid reason for restricting commercial speech. The Supreme Court used the case to create a four part test that was meant to be less stringent than strict scrutiny, with the idea that commercial speech was somewhat less protected than religious and political speech.:

1. Does the commercial speech involve a lawful activity?
2. Is there a substantial government interest in regulating the activity?
3. Does the regulation advance this interest?
4. Is the regulation the least restrictive means to serve the interest?

III. Policy analysis using First Amendment legal tests  

A. Fraternity and sorority signage in the University district

It should be noted that the Radford City Ordinance Sec. 120.1-64 is an unusual if not unique policy. In virtually all other college communities, students are free to permanently place fraternity or sorority signs on buildings, with the permission of the owner, provided that content-neutral safety regulations are met.

Forum analysis – Public streets are traditional public forums, and signs facing the street from private property may be regulated only in a content-neutral fashion for time, place and manner considerations.

Strict scrutiny – If we think of fraternity and sorority signs as political speech, a strict scrutiny test might apply.  The government interest has been explained as creating uniformity, protecting the visual environment and minimizing visual distractions for motorists.

A narrowly tailored law should probably not present a requirement for prior approval.  Nor would a regulation aimed solely at a particular kind of speech (fraternity and sorority signs) be regarded as content-neutral.

Central Hudson – If we think of fraternity and sorority signs as a form of advertising, we would note, first, that there is nothing unlawful about a sign as an “advertisement” for a fraternity or sorority; indeed, such signs are encouraged by the university during certain times of the year.

The question of whether there is a compelling government interest in the specific restriction of Greek signs, as opposed to all signs, would need to be addressed. Also open to question is the issue of whether the regulation advances this interest.  And finally, a process of prior restraint approval is unlikely to be seen as the least restrictive means to advance a government interest, however compelling.

B. Bulletin board approval policies

Forum analysis – University bulletin boards would be seen as limited public forums, which is to say, open to all members of the campus community.  Not all bulletin boards would necessarily to fall into this category. Specific bulletin boards may be non-public forums, provided that there are ample alternative means of student expression through limited public forums.

Strict scrutiny –  No interest has been articulated in the Student Activities policies noted above.  If the interest is in maintaining an orderly appearance of the campus, prior restraint  (in which students “must gain approval from the Office of the Director”)  is unlikely to be seen as the least restrictive means of ensuring this interest.  Moreover, by restricting such approvals to “recognized clubs/ organizations and university departments” the university is excluding other students who do not belong to a recognized club but who also have a clear right to freedom of expression.  Thus, RU’s regulations are not likely to pass a strict scrutiny test.

Central Hudson – Meetings and announcements are lawful activities on campus; no interest for prior restraint has been articulated. Also, prior restraint of commercial or promotional speech by students is unlikely to be seen as the least restrictive means to advance a government interest.

It should be noted also that most other Virginia campus regulations do not require prior approval of materials for posting on campus bulletin boards.   University of Virginia Newcomb Hall regulations, for instance, do not require prior approval, as seen here:

(http://www.virginia.edu/deanofstudents/studentactivities/?page_id=373)

  1. 1.     ONE posting per organization, per event, per board
  2. 2.     Flyers should not cover up other flyers (slight overlap is ok)
  3. 3.     Flyers may hang below the frame of the bulletin board (this is different from other University postering guidelines)
  4. 4.     All postings are removed on Sunday night

C. Free Speech Zones

Unlike the signage and bulletin board issues, the free speech zone policy at Radford University RU policy does not seem to be Constitutionally infirm on its face, although it is a relatively narrow policy.  There have been challenges to narrowly construed policies which have not been resolved by the courts.

A forum analysis would show that a university’s grounds provide a limited forum that should be accessible for all students and faculty.

There have been some complaints about the way the policy is enforced and interpreted at RU. For instance, in 2009,  members of the Jewish organization Hillel “were denied permission to erect a display on campus in celebration of Sukkot, a Jewish cultural and religious festival, because university administrators believed that other universities in Virginia did not participate in such celebrations,” according to Carol  Bienstock, Associate Prof. of Business and Economics at RU.

On the other hand, the university’s accommodation of anti-abortion protests in September, 2011 – along with counter-protests –  is clearly an example of an open policy.

Whether RU’s free speech zone policy should be less restrictive is a debatable point.  Many other college campuses have taken pains to encourage more debate across campus in ways that are not disruptive to teaching, for example, by not limiting free speech to a particular zone.

IV   Virginia Constitution  – Historical perspective

The  Virginia Declaration of Rights,  passed by the General Assembly on June 12, 1776, is the earliest surviving legal foundation of free speech in the world.  It was the basis of the U.S. Bill of Rights, the French Declaration of the Rights of Man and of the Citizen,  the U.N. Declaration of Human Rights, and the constitutions of many other nations.

Its current version has been expanded, but changed very little in meaning, over the centuries:

Section 12. Freedom of speech and of the press; right peaceably to assemble, and to petition.  That the freedoms of speech and of the press are among the great bulwarks of liberty, and can never be restrained except by despotic governments; that any citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; that the General Assembly shall not pass any law abridging the freedom of speech or of the press, nor the right of the people peaceably to assemble, and to petition the government for the redress of grievances.

Even with the passage of centuries, the spirit of the Virginia Declaration is abundantly clear.  Consistent with our duty to honor the memory of prior generations whose sacrifices for freedom are so often commemorated, it is the clear responsibility of a university, or any agency of the Commonwealth, to rekindle and renew an appreciation of the meaning of the Virginia Declaration of Rights whenever an appropriate opportunity is presented.

This would apply not only in a narrow sense, such as within a university’s code of regulations, but also in the broadest meaning of that duty, to be exercised without timidity or equivocation, as a modern model for citizen-scholars and as an exemplar of the rule of law and enduring devotion to the spirit of freedom.