Our traditional notion of freedom of speech — backed up by decades of rulings from the Supreme Court — venerates the college campus as the “marketplace of ideas.” Surely then, such a marketplace should be at its most open during election seasons; as the Supreme Court long ago recognized, “Speech concerning public affairs is more than self-expression; it is the essence of self-government.”
As I’ve written here on PolicyMic, though, and as the case log and publications of my employer, the Foundation for Individual Rights in Education (FIRE), make clear, colleges and universities frequently fall far short of being the bastions of free speech they should be. Further, they often come down especially hard on political expression at the very times when it’s most relevant. Part of the problem is universities’ tendency to misinterpret their obligations under the Internal Revenue Code, which prohibits nonprofit educational institutions from engaging in certain political activities, such as institutionally supporting candidates for office.
Such misinterpretations frequently lead university administrations to prohibit or restrict broad swaths of protected speech, defying both the First Amendment and common sense. The University of Oklahoma, for example, in 2008 banned "the forwarding of political humor/commentary" using university e-mail accounts. That same year, the University of Illinois system issued warnings to faculty against engaging in basic political activities — including wearing campaign buttons, attending rallies, and even placing stickers on their cars. Then in 2011, Illinois’ flagship campus in Urbana-Champaign proposed an electronic communications policy that would have banned any and all “political campaigning” by faculty and students. Fortunately, these policies were all revised or scrapped after FIRE objected. Yet such misconceptions by universities are common enough that FIRE has issued and re-issued a policy statement on political activity to guide universities in policy and practice.
Even without universities getting spooked by any appearance of non-neutrality (a concern that seems to depend on the circumstances), they maintain plenty of overly-broad speech policies frequently abused during election seasons. This past fall at Auburn University, student Eric Philips was ordered to remove a banner supporting Rep. Ron Paul’s (R-Texas) candidacy from his dorm window. Auburn pointed Philips to a policy banning all postings and hangings in residence hall windows. While this may be on its face a content-neutral policy, it is needlessly restrictive and far out of step with the spirit of student expression on campus. Moreover, as FIRE has pointed out, Auburn has been anything but evenhanded in enforcing the policy, creating an unacceptable double standard amounting to viewpoint discrimination.
By contrast, when students at the University of Texas at Austin faced disciplinary charges for placing campaign posters in their dorm windows, UT’s College Democrats and Republicans joined in criticism of the university’s actions, bringing national attention that eventually helped lead to the permanent repeal of UT’s policy. Rather than follow UT’s example and correct its obvious double standard, however, Auburn has pledged to enforce a “total ban” on such expression — despite continuing evidence it has failed to do so.
The problem hardly ends there. The numerous overbroad speech codes on campus arguably prohibit just the kind of campaign rhetoric that comes with support of a candidate and attempts to recruit or persuade other voters. The University of Southern California’s policy on “Advertising, Promotion, and Literature Distribution,” for example, prohibits “derogatory language or material that is aimed at harming a specific person or an organization’s reputation.”
And if you’re looking to stage a rally or demonstration, you may well have to deal with the much-loathed “free speech zones” and the bureaucracy they entail. Until early last year (when FIRE was responsible for getting the policy revised), a group at the University of Massachusetts Amherst wishing to hold any rally deemed “controversial” would only be allowed to demonstrate for one hour and would be required to register its event five days in advance, as well as designate six members of its group to act as a “security team.” While this policy may be somewhat exceptional, several of its features (advance registration, confinement to certain areas of the campus) are central to similar policies throughout the country.
And yet, sure as we are to see such stifling of free speech in 2012, we’re also sure to see many universities taking principled stands for the rights of students debating the issues at stake in the coming election. It’s not hard to see why: This is precisely the kind of robust exchange of ideas universities like to associate themselves with.
Rather than preemptively applaud those universities, however, I urge them to take this perspective before a controversy erupts and to revisit the speech policies that are already on the books doing disservice to the virtues of political participation and civic engagement.
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