session in the assigned demonstration zone only.”12 Applications to use the zones had to be received at least seventy-two hours in advance, and the zones could only be used from Monday through Friday. Our August 2010 SCOTM went to Front Range Community College for its free speech zone policy, which according to Samantha Harris, the attorney who evaluates these codes for constitutionality, “contain[ed] a perfect blend of unintentional hilarity and horrendous unconstitutionality.”13 It included a waiver that you had to sign binding yourself along with your “heirs, successors, [and] executors” to indemnify the college if you were harmed, even due to the negligence of the college, while exercising your free speech rights. It also forbade handing out any literature, pamphlets, or material within the zone unless a passerby actually went up and asked for it. In addition, it banned “[p]ictures, displays, graphics, etc…. if they promote hate, harm, violence, or the threat of these to others,” and even “[d]e minimus [sic] speech (speech that amounts to nothing and has no purpose).” The idea of campus administrators giving themselves the power to decide which speech has value and which doesn’t is almost as comical as it is unconstitutional. Our September 2010 “honor” went to UMass Amherst, which maintained a policy on “Controversial Rallies” stating that “[s]pace for controversial rallies must be requested 5 working days prior to the scheduled date” and that “[s]pace may only be reserved from 12 noon to 1 PM.”14 The policy also required the student organization sponsoring the controversial rally to “designate at least 6 members to act as a security team” (thereby putting these students at risk of physical harm). And our March 2012 SCOTM went to the University of Missouri–St. Louis, where “students wishing to hold a rally or demonstration on campus must provide the university with six weeks’ notice and may not do anything to ‘discredit the student body or UM–St. Louis.’”15
Our December 2007 SCOTM—the University of Cincinnati’s “free speech area,” which amounts to just 0.1 percent of the school’s 137-acre campus—was challenged in a February 2012 lawsuit.16 In addition to quarantining “demonstrations, pickets, and rallies” to the zone, the policy requires that all expressive activity in the zone be registered with the university a full ten working days in advance and threatens students that “[a]nyone violating this policy may be charged with trespassing.” And the university has been true to its word. When the campus chapter of Young Americans for Liberty asked for permission to gather signatures and talk to students across campus in support of a time-sensitive ballot initiative, they were told in an email that they were not even “permitted to walk around,” and that “if we are informed that you are, Public Safety will be contacted.” The student group filed suit, challenging the policy’s constitutionality on First Amendment grounds.17
So, why free speech zones? How can they be defended when they dramatically restrict speech at institutions that should be the preeminent free speech zones of our whole society? One reason is that the courts, unfortunately, have been too permissive with unreasonable “reasonable time, place, and manner restrictions.” Courts have permitted, for example, creating crude and tiny free speech zones (sometimes rightfully called “free speech cages”) to prevent protestors from getting too close to the Republican or Democratic national conventions. As a principle, allowing for the reasonable regulation of the “time, place, and manner” of speech makes sense; putting a reasonable cap on the volume of any concert in a densely populated neighborhood, for instance, is understandable. But on campus, the excuse that university administrators are only regulating the “time, place, and manner” of speech has been twisted out of recognition.
“Time, place, and manner” has become the censor’s mantra—literally, in the depressing case of Northern Arizona University. On September 11, 2011, two students who wanted to hand out small American flags in the student center to commemorate the tenth anniversary of 9/11 were not only ordered to stop but also charged with a disciplinary offense.18 NAU’s response to the flags involved no fewer than four administrators and a police officer. Three of these administrators cited “time, place, and manner” restrictions as the justification for demanding that the students stop their action, and one chanted the phrase over and over again when the students claimed that their minimal form of expression should be allowed. (The campus police officer, for her part, looked like she’d rather be doing just about anything besides stopping students from passing out American flags.) Watching the strange ordeal on video, I was struck by how important it was to these administrators to shut these students down, and how they believed the incantation of “time, place, and manner” conferred upon them the unquestionable power to silence the students.
What these administrators probably did not know is that the Supreme Court had anticipated that “time, place, and manner” restrictions could be abused to stop speech disfavored by those in power, and therefore the Court imposed a number of requirements for their use.19 To be constitutional, the regulations must be “content-neutral”; they cannot be directed at the content or viewpoint of the speech. In addition, they must be “reasonable”—related to an important university interest (like preventing the disruption of classes). They also must leave ample alternative options for free speech. The zones discussed in this chapter come nowhere near the legal definition of constitutionality, nor do they stand up to public scrutiny. FIRE has had great success defeating free speech zones by pointing out to the public that “there is nothing reasonable about transforming 99% of a public campus into a censorship zone.”
But while campaigns against speech zones are usually successful, the zones persist for a simple reason: while everyone claims to love free speech, we are quick to leap on any exception pliable enough to target opinions we dislike. Those of us who defend freedom of speech watch this happen with incredible speed and predictability. The reason we have such strong protections for freedom of speech as part of our constitution is because the urge to censor opinions we don’t like is so powerful. In fact, Steven Pinker—a Harvard psychology professor, bestselling author, and FIRE Board of Advisors member—believes that we may be hardwired to suppress ideas that make us uncomfortable. Pinker has linked this instinct to a deep “psychology of taboo,” which he speculates may incline us to surround ourselves with people who feel that even thinking certain “bad” thoughts is evil.20
Free speech champion Nat Hentoff nicely summed up the universality of this censorship urge in his book Free Speech for Me—But Not for Thee: How the American Left and Right Relentlessly Censor Each Other. Hentoff argued that “censorship—throughout this sweet land of liberty—remains the strongest drive in human nature, with sex a weak second. In that respect, men and women, white and of color, liberals and Jesse Helms, are brothers and sisters under the skin.”21
Four Factors That Work against Campus Free Speech
Over the years, I have observed four primary factors that explain the creation of speech zones, the tenacity of speech codes, and the pervasiveness of campus censorship: ideology, bureaucracy, liability, and ignorance.
IGNORANCE: After years of speaking at conferences of university administrators and in front of students, I realized something that First Amendment attorneys can easily forget: the value of free speech is not obvious or intuitive. What is obvious to people is that some ideas are hurtful and we should try to get along with each other. It is far harder to understand that we should commit ourselves to discussion that is often painful, for the good of all. You have to be taught the profound rationales that undergird free speech, and you have to learn the value of debate by experiencing it.
Students cannot be expected to understand the liberating power of new and challenging ideas when the administrators who run campuses have not themselves learned an appreciation for the practice of free speech. Those in charge are also slow to acknowledge that their good intentions may get confused with self-interest, and that they may be censoring people simply for having critical or contrasting opinions. Administrators must be willing to “tie their own hands” and guard themselves from the temptation to punish opinions they dislike.
IDEOLOGY: “Political correctness” has become the butt of many jokes, yet a PC morality still thrives on campus. It emphasizes the prevention of “hurtful speech” at all costs, with