Hawaiian Students Challenge 'Censorship Swamp' in First Amendment Lawsuit

What is it with public colleges preventing their students from handing out the Constitution? Have these schools ever heard of the First Amendment?
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Back in January, two students at the University of Hawaii at Hilo were told by a campus official that they couldn't approach their fellow students to give them copies of the Constitution.

Just a week later, one of the same students was told that if she wanted to engage in political protest, she should go to UH Hilo's tiny "free speech zone," which covers just 0.26 percent of campus. Worse still, the free speech zone is far away from where most students congregate (I've seen it in person) and occupies a muddy, sloping plain prone to flooding.

It is perhaps better described as a "censorship swamp."

When the students complained that the "free speech zone" was isolated and they were not likely to get much attention, the administrator told them that "people can't really protest like that anymore," and that "this isn't really the '60s anymore."

The students, Merritt Burch and Anthony Vizzone, know their rights, however. Today, with the help of my organization, the Foundation for Individual Rights in Education, and Robert Corn-Revere, Ronald London, and Lisa Zycherman of the law firm Davis Wright Tremaine, Merritt and Anthony filed a lawsuit in federal court arguing that their public university's behavior violated their basic First Amendment rights.

Today's lawsuit comes just two months after the successful settlement of a similar lawsuit against Modesto Junior College in California. In that suit, student Robert Van Tuinen received a $50,000 settlement after clerical staff at Modesto Junior College prevented him from handing out copies of the Constitution to honor Constitution Day (September 17) last fall. Like the UH Hilo students, Van Tuinen was ordered into Modesto Junior College's tiny free speech zone -- and told he needed to reserve the space days in advance.

What is it with public colleges preventing their students from handing out the Constitution? Have these schools ever heard of the First Amendment?

In fact, the UH Hilo lawsuit is only the latest of dozens filed against campus speech codes since the 1980s. Virtually all of these lawsuits have been successful, yet 59 percent of our nation's universities maintain what FIRE deems "red light" speech codes -- that is, the kind of speech codes that are always defeated when challenged in the court of law.

So-called "free speech zones" have proven unusually hardy, despite the fact that they are generally mocked in the court of public opinion and unsuccessful in court.

Check out my slideshow from earlier in the academic year highlighting the defeat of speech zones on college campuses.

Defenders of free speech zones -- what few there are -- will argue that First Amendment law allows for public campuses to restrict speech as long as the policy is viewpoint neutral and limited to what are known as "reasonable time, place, and manner restrictions." It doesn't take a First Amendment expert, however, to know that there's nothing reasonable about declaring 99.7 percent of a public college campus closed to free speech and telling students that they cannot hand out copies of the Constitution.

I'm often asked how such highly restrictive policies came to be entrenched at institutions that are supposed to venerate and support freedom of speech. While I tried to answer that excellent question in my book, a crucial part of the answer is the huge expansion of the administrative class at universities across the country. This problem was well highlighted in columns just this week -- one at Bloomberg View by Virginia Postrel and one at USA Today by Glenn Reynolds. Students should be angry that so much of their increasingly astronomical tuition is going to the swelling ranks of administrators who promulgate speech codes and require that basic expression be limited to tiny out-of-the-way free speech zones.

Campus speech codes are a national scandal. Be sure to check out if your college or alma mater has one. As the students in Hawaii today have demonstrated, there is no need to accept campus speech restrictions as the new normal.

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