No Place for Speech Zones: How Colleges Engage in Expressive Gerrymandering
| Citation | Vol. 35 No. 2 |
| Publication year | 2019 |
No Place for Speech Zones: How Colleges Engage in Expressive Gerrymandering
A. Celia Howard
Georgia State University College of Law, ahoward40@student.gsu.edu
[Page 387]
In November 2016, Kevin Shaw circulated pocket Constitutions written in the Spanish language to his peers at Pierce College, a public institution in California.1 Though he stood on a public sidewalk, an administrator told Shaw that if he did not move to a designated "free speech zone," he would be asked to leave campus.2 The speech zone consisted of .003% of the entire campus, comparable to the area that an iPhone would take up on a tennis court.3 Shortly thereafter, Shaw filed a lawsuit challenging the zone
[Page 388]
as an unconstitutional restriction on his First Amendment rights, joining many students who have brought similar actions in the past fifty years.4
Although the right to speak freely is one of America's most valued constitutional provisions, courts have never interpreted the Constitution to guarantee an absolute freedom to speak.5 Restrictions on speech can occur if they are narrowly limited to certain categories of speech or if they regulate the time, place, or manner of speech.6 In addition to permitting limitations on types of speech, courts have developed precedent that emphasizes the forum—namely, the "public place . . . devoted to assembly or debate"—in which speech occurs.7
[Page 389]
Sometimes, one locale acts as a host for many forums; this is particularly evident on college campuses.8 For instance, a single college campus may contain traditional public forums, designated public forums, and nonpublic forums, which are characterized by the school's intended use for each space.9
Courts have historically viewed American universities as the "quintessential 'marketplace of ideas,'"10 "where the free and unfettered interplay of competing views is essential to the institution's educational mission."11 Despite this generally accepted view of the university's role, the First Amendment has proven a controversial subject in the educational realm.12 In seemingly predictable cycles dating at least to the 1960s, universities enact restrictive speech policies, triggering a backlash by students, faculty, and free speech advocates from both the political right and left.13
[Page 390]
Currently, our nation is facing changing tides on campuses once again, with both sides of the political spectrum asserting their freedom of expression.14
One of the most controversial policies is universities' establishments of free speech zones.15 Free speech zones are locations on campus where schools limit permitted student expression, ranging from disruptive protests to silent leafleting.16 Though school administrators claim that the purpose of these zones is
[Page 391]
to maintain a peaceful learning environment,17 critics argue that the areas violate First Amendment rights and warn against the "Orwellian" risks of limiting speech to certain locations.18 Many litigants have challenged the zones, particularly in the past twenty years, as violations of the First Amendment.19 Given the existing model of free speech analysis, where courts consider whether restrictions are acceptable as to time, place, and manner, free speech litigation typically depends on the location in which the speech occurs.20 This has led to highly varied results in such litigation despite similarities between claims.21
Changing social issues led students to assert their First Amendment rights in the twentieth century;22 simultaneously, voters started denouncing discrimination by fighting racial and partisan gerrymandering.23 The term gerrymandering refers to the division of geographical areas into units to favor a certain group, often with the purpose of influencing an election.24 Recently, cases such as Vieth v. Jubelirer and Gill v. Whitford have turned the Supreme Court of the
[Page 392]
United States's attention to partisan gerrymandering, which is implemented to "pack" votes to a party's advantage or "crack" votes to a group's disadvantage.25 Though the intricacies of establishing voter standing or determining a judicially manageable standard are not relevant to this note, the underlying First and Fourteenth Amendment implications of the Vieth and Gill cases are quite similar to the issues courts must consider when faced with campus speech zones.
This note takes a critical look at the shortcomings of the current tests applied to speech zone litigation as well as the constitutional violations that occur when public schools carve out speech areas. Part I examines the evolution of First Amendment law in education, with a focus on university free speech zones.26 Part II analyzes the convoluted First Amendment jurisprudence, suggesting that the time, place, and manner test, typically used in conjunction with a forum analysis when examining the constitutionality of speech zones, allows universities to practice what is known as "expressive gerrymandering."27 Finally, Part III proposes that courts eliminate the place prong of the time, place, and manner test altogether to simplify some of the complexities associated with free speech litigation on college campuses.28
I. Background
From the protest-driven 1960s, to the civility movement in the 1980s, followed by the fear of terrorism in the 2000s, university administrators have had to balance safety concerns with the right to speak.29 Recent criticism suggests that universities are overstepping constitutional boundaries, particularly by using speech zones to
[Page 393]
determine when, where, and how students convey their messages.30 Litigation against gerrymandering arose during the same years that students began challenging speech restrictions.31 Because gerrymandering and freedom of speech have followed similar historical trajectories, courts are once again hearing complaints against university speech policies while they also attempt to resolve constitutional issues related to gerrymandering.32
A. The Rise of Free Speech on College Campuses
1. Peace, Protests, and "Parents" No More
The seemingly simple phrase, "Congress shall make no law . . . abridging the freedom of speech . . . or the right of the people to peaceably assemble" has given way to a variety of complex standards and guarantees in the last century.33 Contrary to popular belief, courts do not always protect speech.34 For instance, authorities may restrict speech that directly incites others to engage in violence or "imminent lawless action" in order to serve a substantial government interest in safety.35
Dissenters began asserting their right to speak in the twentieth century when the government attempted to suppress new political ideologies during wartime.36 For instance, courts frequently upheld state and local government restrictions when speech merely advocated violence.37 Ultimately, the Supreme Court overturned this
[Page 394]
standard, establishing the rule that government entities could only outlaw speech that was likely to produce imminent lawless action.38 During this time, complaints against government restrictions on free speech naturally found their way into the university setting.39
Traditionally, schools acted in loco parentis, meaning that universities had "the power to discipline, control, and regulate their students to a high degree; they also enjoyed considerable immunity from liability and insularity from judicial review."40 Students' First Amendment rights were considerably curtailed, and students rarely brought lawsuits against universities.41 However, the turbulent climate of the late 1960s became a catalyst for the development of modern First Amendment law in the educational field.42 During that decade, students became heavily involved in political and social issues, including the civil rights movement, the sexual revolution, and the Vietnam War.43 Although their protests were often peaceful, some of them grew riotous.44 The Kent State University killings offer perhaps the most drastic example, and many scholars consider the
[Page 395]
subsequent Supreme Court case as a turning point in educational law.45
In 1970, hundreds of students assembled at Kent State to protest the Vietnam War.46 Though initially peaceful, the gathering turned violent and destructive in the days that followed.47 When the Ohio National Guard attempted to disperse the protest from the University Commons, members of the Guard suddenly fired into the crowd, killing four students and injuring nine.48 The students sued the university president for damages and various civil rights claims.49 The district court dismissed the claims for lack of jurisdiction, as was typical for student lawsuits at the time.50 However, the Supreme Court reversed the lower court and essentially rejected the immunity traditionally granted to universities, holding that students may sue colleges for civil rights violations.51
This holding was a notable departure from the traditional in loco parentis doctrine that had previously granted schools wide discretion and immunity.52 These new protections for students even applied to minors.53 Tinker v. Des Moines Independent School District was a landmark case that upheld students' free speech rights when middle and high schoolers were punished for wearing black armbands to protest the Vietnam War.54 The Supreme Court noted that the school had "an urgent wish to avoid the controversy [that] might result from . . . opposition to this [n]ation's part in the conflagration in
[Page 396]
Vietnam," but the risk of disturbance in the classroom is a risk the Constitution "says we must take."55
The Court further held that, in order to justify a restriction on speech, a school must demonstrate that the speech would "materially and substantially interfere with . . . the operation of the school."56 Most notably, the Court carved out an exception that has...
To continue reading
Request your trial