TO: Fraternity/Sorority Coalition Assessment Program, Heth Room 22, Radford University
FROM: Bill Kovarik, Professor, Radford University
CC: Office of the Provost, Office of the Vice President for Student Affairs DATE: March 20, 2012
RE: Free speech issues for fraternities and sororities
This memo is to object, once again, to free speech policies at Radford University and city ordinances of Radford, Virginia that unconstitutionally assert a right of control over the design of Radford Greek and other student organization signs, flags and banners.
The policies are detailed in Radford City Ordinance Sec. 120.1-64 and 120.1-239 passed in 2007. The ordinances require that the content of all flags and banners be approved in advance by RU Department of Student Activities and the city zoning administrator.
Of course, requirements for signage are routinely set in city ordinances, and no one would dispute a city’s responsibility to regulate the safety or aesthetic issues for all commercial or residential signs.
However, two specific policies and ordinances have problems that make them constitutionally infirm abridgements of the First Amendment rights of students.
One problem is that the university and the city are acting in combination to directly regulate the expression of a single group of citizens – RU students who are fraternity or sorority members. The rules do not apply to other groups. Another problem is that the sign content must be approved in advance, which is a prior restraint.
Traditional legal tests for constitutionality show the problems clearly:
• If we apply a forum analysis, we will recall that 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.
• If we use a free speech strict scrutiny standard, fraternity and sorority signs may be seen as a form of political speech, and regulation must stem from a highly compelling interest. That is, the interest must be necessary or crucial, as opposed to merely expedient. It must also be enforced through a narrowly tailored regulation using the least restrictive means for achieving it.
• If we think of fraternity and sorority signs as a form of commercial speech, again we have the question of whether there is a compelling government interest in restricting Greek signs. Does the regulation advance this interest? Is it the least restrictive means to advancing the interest? Is the regulation narrowly tailored or is it overly broad?
Ironically, it’s difficult to have this conversation because no one seems to be sure exactly what government interest is served by imposing prior restraint censorship over student speech. Greek signs are routinely displayed in many other towns without any interference from city or state government and without any apparent ill effects. In addition, Virginia’s proud history and tradition of serving the cause of freedom is well known and hardly needs to be recounted here.
My concern is that by forcing some of our best student leaders to accept these regulations, we are sending an educational message that freedom of speech doesn’t count.
I know this is only one issue facing the Fraternity/Sorority Coalition Assessment Program, and it may not be the most compelling one. I also know that there are many important rules about student behavior that are applied, quite appropriately, by RU. These include rules against hazing and underage drinking. However, I also think its important to distinguish between speech and behavior.
In my opinion, Radford University must re-evaluate its policies restricting freedom of speech.
Central Hudson Gas & Electric Corp. v. Public Service Commission of New York
(four part Constitutional test for commercial speech)