The Right to Speak

In the last year, various court cases involving the Occupy movement have defined how far cities can go to regulate the use of public spaces for political protests. When it comes to public higher education, such jurisprudence is increasing -- the result of itinerant preachers who want to reach students on campuses.

Generally the rulings have upheld the right of public colleges to exercise some rules on visiting speakers, but various appeals courts have also found several instances where those rules were deemed too restrictive. In the latest such ruling, the U.S. Court of Appeals for the Sixth Circuit found last week that several procedures at Tennessee Technological University -- including a required application 14 days before the event, and a stipulation that the nature of the event be described -- were unconstitutional.

The appeals court ruling reversed a district court’s findings, and revived the lawsuit of John McGlone, the preacher who wanted to speak at the university. McGlone sued after he tried to speak on campus in 2009, and was told he could only receive permission to speak in one limited area, and only if he followed the various rules in place about visiting speakers.

Limitations on free speech at public institutions (higher education and others) are generally evaluated in federal courts on the reasonableness of “time, place and manner” restrictions. So while a public university can’t bar all protests, and can’t bar protests of some ideas and not others, it can bar activities when their exact time, place or manner may create a compelling reason to regulate them. For example, colleges would generally be on solid ground banning protests that disrupt classes or endanger public safety. But public universities, when challenged, must show why their rules were reasonable -- something they have sometimes failed to be able to do.

In other cases brought by visiting preachers, federal appeals courts have ruled that public institutions can’t assert blanket authority to bar speakers whose security costs aren't covered by student groups or some other entity, or set strict limits on the number of visits by a speaker. But appeals courts have upheld the requirement of some advance notice (such as three days, as was the case at the University of Arkansas at Fayetteville) as acceptable.

In the Tennessee Tech case, the appeals court ruled that requiring McGlone or others to register 14 days in advance was “much longer than other notice periods that have been upheld,” and that the university failed to provide “an explanation for the need” for such a lengthy requirement. As a result, the appeals court said, Tennessee Tech has failed to demonstrate that the requirement was “narrowly tailored.”

The court also rejected Tennessee Tech requirements that those seeking a permit to speak on the campus must provide information on who they are, describe the program’s purpose, and stipulate whether the event is “political” or “religious.” The appeals court noted that the right to free speech includes anonymous speech, which would be precluded by these requirements. And the appeals court noted McGlone’s belief that the question about whether an event might be political or religious could help a university discriminate in its determinations on the basis of the content of an event. Again, the appeals court found that Tennessee Tech had failed to justify its policy as being “narrowly tailored” or appropriate.

The case will now return to the district court, which will reconsider the case based on the appeals court’s ruling. A spokeswoman for Tennessee Tech said that lawyers were studying the ruling, and that the institution would not comment at this time.