Free speech and free association are among the priceless liberties outlined in the U.S. Constitution. At the ADF Center for Academic Freedom, we have the privilege of standing for those freedoms everyday, having secured nearly 400 victories defending them at public universities across the country. In fact, there is no place where those liberties should be more cherished and more celebrated than on the campuses of our public universities.
Sadly, it is in those very places where those liberties are too often under assault. For example, at a college in Georgia, a student named Chike Uzuegbunam recently tried to distribute literature outside on campus, peacefully sharing his faith with fellow students.[i] College officials quickly stopped him because he was outside the two “speech zones” that comprised a tiny fraction of campus, less than 0.0015%, and were closed for 90% of the week.
Chike then followed these rules and reserved a speech zone. When the day came for him to speak, campus police stopped him after just a few minutes. Why? Someone complained about his speech, and to the college, this converted constitutionally protected speech into “disorderly conduct.” Under its speech code, “disorderly conduct” included anything that “disturbs the peace and/or comfort of person(s).”
Sadly, Chike’s story is not unusual. Using similar policies, university officials nationwide treat students as if they should be seen but not heard.
We recently represented a Christian student group at North Carolina State where similar speech zone policies prohibited students from distributing any “written material” or engaging in “any oral communication with a passerby” anywhere on campus without first getting permission from administrators.[ii]
We represent a pro-life student group at Miami University of Ohio, where officials used speech codes to require the group to put up trigger warning signs around a display.[iii] These officials feared that a simple display of small crosses would inflict “emotional trauma,” even though other groups highlighted even more contentious issues without any restrictions.
We also represent a libertarian student group at Kellogg Community College in Michigan.[iv] Its members stood outside on campus, asked students, “Do you like freedom and liberty?,” and handed out copies of the U.S. Constitution. College officials declared this question too “provocative” for their students and had our clients arrested, jailed, and charged with trespassing.
House Bill 4440 seeks to protect students at South Carolina’s public universities from becoming the next victims of this sort of abuse. Why is this legislation necessary? First, it protects the rights of students from university officials who either do not understand or do not care about the First Amendment.
All of South Carolina’s public universities doubtlessly say they value free speech. But so do these schools in Georgia, North Carolina, Ohio, and Michigan—and countless others like them. Just because a university says it values free speech does not mean that its actions or policies comply with the First Amendment.
For example, a national non-partisan free speech group has rated four public universities in South Carolina as “red light” schools.[v] This is because they maintain at least one speech code that clearly and substantially restricts free speech. If this is true of these major institutions, other colleges this group has yet to evaluate likely have similarly problematic speech codes.
In addition, the University of South Carolina imposes a speech zone.[vi] If students want to distribute literature, they first have to get permission from officials, and they can only use four outdoor areas of campus.[vii] If they want to conduct an event outdoors, they can only use four zones.[viii] At Winthrop University, students can use only four outdoor areas, unless they first get permission from officials.[ix]
Several years ago, the University of South Carolina was sued for imposing policies that excluded religious student groups from receiving funding available to all other groups.
In recent years, we sent four South Carolina universities letters, informing them that they had unconstitutional speech codes or limited the freedom of association for student groups.[x] We offered to help them revise these policies. One promised to review its policies; the others ignored us completely.[xi] To our knowledge, none of them took any corrective action.
House Bill 4440 would prevent these kinds of problems by ensuring that universities do what they are not inclined to do voluntarily: comply with the First Amendment.
Second, House Bill 4440 provides clarity, giving universities a blueprint for crafting constitutional policies. This, in turn, incentivizes them to adopt such policies, thus avoiding litigation altogether. If institutions ignore this blueprint, this bill would serve as a catalyst for resolving the litigation quickly, before the legal bills pile up. Thus, this bill helps save the state’s money and prevents universities from forcing South Carolina’s taxpayers to pay the bill for illegal policies.
Third, House Bill 4440 educates students. Too often, students acquiesce to illegal actions and policies simply out of ignorance. But universities are obligated to respect the freedoms of all students, not just those who have the right knowledge, the right contacts, or enough funds to seek legal assistance. House Bill 4440 informs students of their rights, giving officials all the more reason to respect those rights.
In closing, the Supreme Court declared that the “essentiality of freedom in the community of American universities is almost self-evident.”[xii] It ruled that our “Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues, rather than through any kind of authoritative selection.”[xiii] But many universities, including ones in this state, substantially restrict free speech and association, teaching students that government censorship is the norm, not the exception. House Bill 4440 seeks to correct these injustices without forcing students to vindicate their freedoms through the courts.
[i] See Alliance Defending Freedom, Georgia College Sued for Censoring Student Speech, Restricting it to 0.0015% of Campus, Dec. 20, 2016, available at http://www.adfmedia.org/News/PRDetail/10134 (last visited Feb. 20, 2018); see also Alliance Defending Freedom, US Weighs in for Censored Christian Student in Georgia, Sept. 26, 2017, available at http://www.adfmedia.org/News/PRDetail/10387 (last visited Feb. 20, 2018).
[ii] See Alliance Defending Freedom, Student Group Sues NC State for Requiring Permits for Any, All Speech, Apr. 26, 2016, available at http://www.adfmedia.org/News/PRDetail/9937 (last visited Feb. 20, 2018); Alliance Defending Freedom, Court Quickly Halts NC State Policy that Requires Permits for Any, All Speech, Jun. 6, 2016, available at http://www.adfmedia.org/News/PRDetail/9981 (last visited Feb. 20, 2018).
[iii] See Alliance Defending Freedom, University Officials in Ohio Deem Pro-life Display Harmful, Impose Unconstitutional Trigger Warning, Nov. 29, 2017, available at http://www.adfmedia.org/News/PRDetail/10425 (last visited Feb. 20, 2018).
[iv] See Alliance Defending Freedom, Student Club Supporters Arrested for Handing out US Constitution at Michigan College, ADF Sues, Jan. 18, 2017, available at http://www.adfmedia.org/News/PRDetail/10155 (last visited Feb. 20, 2018); see also Sarah Kramer, When Free Speech Becomes “Trespassing”: ADF Sues Kellogg Community College, Jan. 18, 2017, available at https://www.adflegal.org/detailspages/blog-details/allianceedge/2017/01/18/when-free-speech-becomes-trespassing-adf-sues-kellogg-community-college (last visited Feb. 20, 2018); Michelle Gregoire, I Was Arrested for Handing Out the Constitution, While Campus Rioters Go Free, Jun. 1, 2017, available at https://www.adflegal.org/detailspages/blog-details/allianceedge/2017/06/01/i-was-arrested-for-handing-out-the-constitution-while-campus-rioters-go-free (last visited Feb. 20, 2018).
[v] These institutions include Clemson University, Coastal Carolina University, the College of Charleston, and the University of South Carolina. Each of them maintains harassment-related speech codes that do not satisfy the constitutional standards in Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629 (1999). See Found. for Indiv. Rights in Educ., Spotlight Database for South Carolina, available at https://www.thefire.org/spotlight/?x=&y=South+Carolina&speech_code=&submit=GO (last visited Feb. 20, 2018).
[vii] Id. § II.H.2.b–d.
[ix] WINTHROP UNIV., STUDENT HANDBOOK 2017–2018 at 49, Assembly Policy, available at https://www.winthrop.edu/uploadedFiles/studentconduct/StudentHandbook.pdf (last visited Feb. 20, 2018).
[x] These institutions include the University of South Carolina, South Carolina State University, Lander University, and Clemson University. The first two maintained unconstitutional speech codes; the last two maintained policies that abridged the free association rights of student organizations.
[xi] Clemson University responded, indicating it would review its policies. The rest never responded.
[xii] Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957).
[xiii] Keyishian v. Bd. of Regents of Univ. of N.Y., 385 U.S. 589, 603 (1967).
Legal Counsel, Alliance Defending Freedom