TRUMPING THE FIRST AMENDMENT: STUDENT-DRIVEN CALLS FOR SPEECH RESTRICTIONS ON PUBLIC COLLEGE CAMPUSES.

• Author: Patton, Katlyn Ayn

CONTENTS INTRODUCTION I. THE PUBLIC FORUM DOCTRINE A. Public Fora B. Limited and Designated Public Fora C. Nonpublic Fora II. COLLEGES AND UNIVERSITIES RESPOND A. Speech Codes B. Bias Response Teams and Student-Driven Speech Restrictions C. An Alternative Path: The Case of the University of Chicago III. THE OHIO UNIVERSITY GRAFFITI WALL AND SPACES LIKE IT ARE LIMITED PUBLIC FORA IV. CONTENT-BASED RESTRICTIONS ON SPEECH IN LIMITED PUBLIC FORA ON COLLEGE CAMPUSES SHOULD BE CONSTRUED NARROWLY CONCLUSION INTRODUCTION

Throughout the 2016 presidential race, public displays of support for Donald Trump's candidacy on college campuses elicited strong reactions from droves of offended students. Minority students felt targeted by Mr. Trump's campaign--as well as by members of the campus community who supported him--and called for administrators to respond. At Ohio University ("OU"), fraternity members painted "Trump 2016" and "Build the Wall!!" on a popular graffiti wall on campus--a place where individuals and student organizations create artwork and advertise their organizations and events. (1) The painting elicited backlash from the university community, many members of which felt that the message was derogatory towards immigrants and people of Latin American heritage. (2) Although the university did not formally sanction the students involved, the incident led to the cancellation of many Greek Week activities. (3)

Months later, as the election approached, another image appeared. This time, the slogan "Build the Wall" was accompanied by the image of a hangman. (4) The individuals responsible for this display were never identified, but their message provoked strong responses condemning this kind of expression on a college campus. (5) University officials characterized the incidents--and the purpose of the wall in general--as a means by which the community could learn the power of words and images. (6)

Similarly, at Emory University, students spoke out against sidewalk chalkings supporting Trump as targeting students of color. (7) In the wake of Mr. Trump's victory, similar incidents have occurred on campuses across the United States. (8)

Although the universities did not formally sanction anyone in either instance, the uproar raises questions concerning the extent of these students' First Amendment rights and the demand for safe spaces on campus. Chalkings similar to those at Emory appeared on campus sidewalks across the country and sparked a national debate concerning free speech and inclusion on college campuses. (9) Today, college administrators focus on safe spaces and inclusion on campus. However, public college and university campuses, as state actors, have limited tools with which to respond to these concerns without infringing upon students' free speech rights, (10) and administrators across the country are currently grappling with how to do so. (11)

This Note will explore the options available to public colleges and universities to respond to this kind of personal political expression on campus in the form of leafleting, chalking, or painting spaces such as the OU graffiti wall. (12) Part I will consider where these spaces fit within the public forum doctrine and the different First Amendment standards courts apply depending upon the type of forum at issue. Part II will examine the ways in which colleges and universities have attempted to respond to the backlash against pro-Trump speech on campus. Part II will also examine the implications of student-driven restrictions on speech. Part III will argue that the OU graffiti wall, like sidewalks, are designated public fora; therefore, courts should review restrictions on expression in these fora with strict scrutiny. Part IV will discuss the public policy rationales supporting the application of strict scrutiny on restrictions on expression in the context of public higher education. Part IV will also examine and dismiss potential legal and public policy arguments that, although these spaces are designated public fora, this type of speech is not protected due to its content.

1. THE PUBLIC FORUM DOCTRINE

   This Part will provide background concerning how courts analyze free speech claims. The freedom of expression guaranteed under the First Amendment is not absolute, and courts consider where the expression occurs in analyzing permissible restrictions. The Supreme Court provides verbal constructions for each type of forum--public, designated public, limited public, and nonpublic--as well as the standards by which courts should review restrictions on expression in each forum. This Note will focus specifically on those standards applied in cases involving public schools.

   1. Public Fora

      Traditional public fora are the spaces in which courts provide the most protection to individuals alleging their right to free expression has been restricted. They are "places which by long tradition or by government fiat have been devoted to assembly and debate," in which "the rights of the State to limit expressive activity are sharply circumscribed." (13) These spaces are used in the democratic tradition of free assembly and debate amongst citizens on public questions. (14) The seminal examples of public fora are streets and parks. (15)

      Although public college and university campuses are owned by a state actor, courts have not held entire public campuses to be public fora. (16) Each space on the campus must meet the definition of a public forum described above, a standard which has proven difficult to meet. (17) In both Perry and Hershey, plaintiffs argued that certain spaces in public schools were public fora, and in both cases the court disagreed. (18)

      In Perry, the parties debated how to apply forum analysis in the context of a public school district's interschool mail system and teacher mailboxes. The school district entered into an exclusive collective bargaining agreement with a union, and a rival union sued on the grounds that the school district violated its free speech rights by prohibiting its use of the interschool mail system and teacher mailboxes. (19) The Supreme Court held that the mailboxes were not public fora because "there [was] no indication in the record that the school mailboxes and interschool delivery system [were] open for use by the general public." (20)

      The Court in Perry came to this decision based on a tripartite framework that identified public, limited public, and non-public fora as calling for different standards of review. (21) Subsequently, the United States District Court for the Southern District of New York applied the framework in Perry to a case arising on a public college campus.

      In Hershey, plaintiff Richard Hershey was an advocate of vegetarianism who was arrested after attempting to pass out leaflets on the sidewalk on the campus of Lehman College. (22) Hershey was not a student at Lehman. (23) Campus security removed Hershey from the campus sidewalk, and he argued that this action deprived him of his right to free expression because the sidewalk was a public forum. (24) The district court disagreed and, using the Perry framework, explained that public college and university campuses are public fora only when the administration intentionally opens these spaces for use by the general public. (25)

      If a space is a public forum, then state actors have limited means to restrict expression in the space. In the realm of the public forum, content-based restrictions must be narrowly tailored to serve a compelling state interest. (26) Reasonable "time, place, and manner restrictions" are permissible as long as they are "content-neutral" and "narrowly tailored to serve a significant government interest, and leave open ample alternative means of communication." (27) Status as a public forum is not the only means by which expression in a space may warrant this strict standard of review.

   2. Limited and Designated Public Fora

      Spaces on public college and university campuses are more likely designated or limited public fora than they are public fora because such spaces are open to students to express themselves as members of the campus community. A designated public forum is space that a state actor has intentionally opened to the general public for the purpose of serving as a public forum. (28) A limited public forum is similar, but occurs when a state actor opens what would otherwise be considered a nonpublic forum for use by a specific group of people (29) or for a limited purpose. (30)

      In Hershey, the court determined that the on-campus space where plaintiff attempted to leaflet was a limited public forum open only to members of the university community. (31) In making this determination, the court emphasized the purpose of the property in question, stating that "a college campus serves a narrower purpose [than a traditional public forum], and outside visitors are not automatically welcomed as invitees, as at a shopping mall, but are more properly viewed as 'classic licensees,' subject to reasonable restrictions." (32) These restrictions are subject to a lower standard of review than those applicable to public fora--they need only be viewpoint-neutral and reasonable in light of the forum's purpose which, in this case and in the spaces that are the subject of this Note, is education. (33)

      In Roberts v. Haragan, (34) the United States District Court for the Northern District of Texas faced a fact pattern similar to the one in Hershey, but the speaker was a student. Plaintiff Jason Roberts was a student at Texas Tech University Law School who wanted to pass out literature on campus about his religious and political views--the content of which expressly condemned homosexuality. (35) The school's policy required Roberts to request permission for his activities, but when he did so, his request was denied. (36) The court held that "to the extent the campus has park areas, sidewalks, streets, or other similar common areas, these areas are public for...