FREEDOM OF EXPRESSION: DON’T SHOOT THE MESSENGER BARRY T. MEEK 25 TH ANNUAL CCA CONFERENCE KEYNOTE - JUNE 16, 2016

DISCLAIMER

WARNING: THIS IS A TRIGGER!

DISCUSSION POINTS  What is the forum? Public v. Private  Who is the speaker? University Community v. Outsiders  What is the conduct? Illegal v. Offensive  How do we respond? Measured v. Over-Reaction  The Quandaries of Anonymous Speech  What is your organization’s pain threshold and risk tolerance? Do your policies track?

PUBLIC INSTITUTIONS Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. U.S. Const. amend. I

PUBLIC INSTITUTIONS - VIRGINIA Restrictions on student speech; limitations. — Public institutions of higher education shall not impose restrictions on the time, place, and manner of student speech that (i) occurs in the outdoor areas of the institution's campus and (ii) is protected by the First Amendment to the United States Constitution unless the restrictions (a) are reasonable, (b) are justified without reference to the content of the regulated speech, (c) are narrowly tailored to serve a significant governmental interest, and (d) leave open ample alternative channels for communication of the information. VA Code § :13

WHAT IS THE FORUM? WHY DOES IT MATTER?  Public Institutions:  Traditional Public Forum  Limited Public Forum  Non-Public Forum  All Institutions – What are your policies?  Off-Campus Speech Impacting Your IHE

ARE YOU ON FIRE?

At least one policy that both clearly and substantially restricts freedom of speech. A “clear” restriction is one that unambiguously infringes on what is or should be protected expression. In other words, the threat to free speech at a red light institution is obvious on the face of the policy and does not depend on how the policy is applied.

ARE YOU ON FIRE? Policies restrict a more limited amount of protected expression or, by virtue of their vague wording, could too easily be used to restrict protected expression. For example:  a ban on “posters containing references to alcohol or drugs”  a policy banning “verbal abuse” where such conduct is not better defined.

ARE YOU ON FIRE? Policies do not seriously imperil speech. A green light does not indicate that a school actively supports free expression. It simply means that FIRE is not currently aware of any serious threats to students’ free speech rights in the policies on that campus.

UNLAWFUL SPEECH  Threats  Harassment / Discrimination  Speech that creates danger / incites violence  Defamation

REACTIVE SPEECH

INTERNAL STIMULUS

LET’S NOT MAKE A DIFFICULT SITUATION -- WORSE

“SIGN POLICY” MEETS WITH MARGINAL SUCCESS

ANONYMOUS SPEECH

WHAT ARE YOU GOING TO DO ABOUT OFF CAMPUS SPEECH?

WHAT ARE YOUR POLICIES?  Speech Zones  Facility / Space Reservation  Building Access  Parade / Demonstration Registration / Permits  Amplified Sound  Posting / Chalking  Erection of Structures  Who is in “control”?

TAKE AWAYS  Review / Know Your Policies  Educate / Train Your Constituents / Stakeholders  Exercise Your Protocols  Gather Intelligence

THE ANSWER TO OFFENSIVE SPEECH – MORE SPEECH

QUESTIONS? ? ? ? ? ? ?