Location, Location, Location: The Property Underneath the Feet of Speakers Matters When Determining Whether A Public Institution Can Control Their Speech

Location, Location, Location: The Property Underneath the Feet of Speakers Matters When Determining Whether A Public Institution Can Control Their Speech

Benjamin Bloedorn is an itinerant preacher who travels from college campus to college campus, loudly proclaiming his evangelical message for hours on end to anyone within earshot.  In March 2008 he arrived at Georgia Southern University and began preaching atop a grassy knoll next to the university’s student center and adjacent to a pedestrian mall and rotunda.

It just so happened that the university had designated that grassy knoll as its “Free Speech Area.”  A university official soon approached Bloedorn and told him that before he could use the Free Speech Area, he needed to get a permit.  Bloedorn rebuffed the official and resumed preaching.  Twice more, Bloedorn was told by university officials that he needed to get a permit and twice more he refused.  Finally, university security arrested him for trespassing.  

Bloedorn sued the university, claiming that its permitting policy violated his right to free speech under the First Amendment.  He also didn’t like that the university refused to let him engage in discourse on campus anywhere other than on the grassy knoll, so he sued over that restriction as well.

Bloedorn filed a motion seeking a preliminary injunction to prevent the university from enforcing its speech regulations.  Whether Bloedorn won or lost that motion came down to how the court classified the property on which he sought to stand and deliver his speech.  The court had to apply what is known as the “public forum analysis:” Did the university intend to open its campus to public discourse?  Depending on the answer, the university’s speech regulations might or might not have violated the Constitution.

This article explains how courts use the public forum analysis to decide whether speech regulations are constitutional. Attorneys for public institutions of higher education should understand the contours of this analysis, for it will guide them in counseling their institutions when they want to restrict people from engaging in expressive activity on their campuses.

First Amendment Basics

The First Amendment provides that the government cannot abridge the freedom of speech.  Citizens can bring civil rights lawsuits against the government when it attempts to restrict their speech.  See 42 U.S.C. § 1983.  

Public colleges and universities “are not enclaves immune from the sweep of the First Amendment” and do not have unbridled freedom to regulate expressive activity on their campuses.  On the other hand, the First Amendment does permit them to take certain steps to control who can speak or protest on campus and where, when, and how they can engage in such expressive activity.

To determine whether a government speech restriction violates the First Amendment, a court will apply different levels of scrutiny depending on various factors, including the type of speech that is being regulated (for instance, commercial speech versus political speech), the type of restriction (content- or viewpoint-based restrictions versus content-neutral restrictions of the “time, place and manner” of speech), and, if the restriction controls expressive activity on property owned by the government, the type of forum that the government is trying to regulate (as explained further below).  

The more strict the level of scrutiny that is applied by a court, the more likely that the court will conclude that the speech restriction does not pass constitutional muster.  

The Public Forum Analysis

When the government—including public institutions of higher education—wants to restrict speech that occurs on property owned by the government, a court will look at the nature of the property to determine the level of scrutiny to be applied to the speech restriction.  

This public forum analysis focuses on the particular place where the government wants to regulate expressive activity.  A court will decide whether the government intended to open that place for public discourse, by reviewing the government’s policies and practices as well as the nature of the property and its compatibility with expressive activity.  

Depending on how the property is classified, the court will apply a different level of scrutiny to determine whether the government’s restrictions on expressive activity in that space violate the First Amendment.  

Importantly, different places on a single college campus can be classified differently, depending on the school’s intentions for each place and their historical use.

Traditional Public Forums

The first category of forum is known as the “traditional public forum,” i.e., the government-owned spaces where, since “time out of mind,” citizens have gathered and engaged in public discourse:  public parks, streets, and sidewalks.  Courts will apply the strictest form of scrutiny to content-based restrictions on speech in traditional public forums.  Even content-neutral restrictions of the “time, place, and manner” of speech must be narrowly tailored to achieve a significant government interest and leave open amply alternative channels of communication.  

Luckily for universities (and their lawyers), it is almost unheard of for school property to fall into this category of forum—on-campus parks, streets, and sidewalks do not qualify as traditional public forums.  The streets and sidewalks that border a campus, however, typically will be considered traditional public forums.  

Designated Public Forums

If a school intentionally has opened up a part of its campus for purposes of public discourse—without regard to the type of speaker or the subjects discussed—then a court will hold that the school has created a “designated public forum” for expressive activity.  

In a designated public forum, content-based restrictions on speech must be necessary to serve a compelling interest and must be narrowly drawn to achieve that goal, and content-neutral restrictions must be narrowly tailored to serve a significant government interest and leave open ample alternative channels of communication.  See Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983).  

For instance, in Bowman v. White, 444 F.3d 967 (8th Cir. 2006), the United States Court of Appeals for the Eighth Circuit held that the “outdoor areas clearly within the boundaries of the campus” at the University of Arkansas were designated public forums because the university, through its own written “policies and procedures,” had opened them to expressive activity and did not limit the use of the spaces to a particular type of speech or speaker.  

The Bowman court then concluded that the university’s requirements that a speaker apply for a permit and give three days’ advance notice, and ban on using the space during final examination periods, were content-neutral and narrowly tailored to serve significant government interests in protecting the educational experience of its students and ensuring public safety.  But, the court held, the university’s cap of five eight-hour days of public speaking per individual per semester was not narrowly tailored to serve the interest of fostering a diversity of uses of university resources because it did not permit a speaker who had exceeded the cap to use the space even if the space would otherwise go unused.

Limited Public Forums

If a school only has permitted certain groups to use a piece of property for expressive purposes, or only has permitted the discussion of certain subjects in that place, then a court would likely conclude that the school has created a “limited public forum.”  

In such a forum, a school may impose restrictions on speech (whether content-based or content-neutral) as long as they are “reasonable and viewpoint neutral.”  See Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 470 (2009).  

Thus, for example, in Hickok v. Orange Cnty. Comm. College, 472 F. Supp. 2d 469 (S.D.N.Y. 2006), the court ruled against a Green Party activist who sued after campus security had removed him from a lecture hall because he had been speaking from the audience.  The court held that “the lecture hall at the college was a limited public forum” and that the school could require that lectures avoid endorsing one political party over another because such a policy “does not discriminate against any speaker’s view point to the advantage of another’s view point,” and that the policy reasonably sought “ to promote discussion and illuminate ideas.”

Nonpublic Forums

If a school has not opened a place to expressive activity, a court will likely decide that the place is a “nonpublic forum.”  A school can most freely restrict speech in a nonpublic forum “based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are view point neutral.”  Perry, 460 U.S. at 49.  

In Bishop v. Aronov, 926 F.2d 1066 (11th Cir. 1991), for instance, a professor at the University of Alabama had been referring 
to his own religious beliefs during class and had held an after-class meeting to deliver a religious lecture.  The United States Court of Appeals for the Eleventh Circuit held that during instructional time the university’s classrooms were nonpublic forums because they had been reserved for intended uses 
other than “indiscriminate use by the general public,” and that the university could direct the professor to refrain from expression of religious viewpoints in the classroom.  

Benjamin Bloedorn Strikes Out

The lawsuit brought by Benjamin Bloedorn against Georgia Southern University presents a good example of how a court applies the public forum analysis to determine whether a school’s speech regulations are constitutional.  See Bloedorn v. Grube, 631 F.3d 1218 (11th Cir. 2011).  

In that case, the United States Court of Appeals for the Eleventh Circuit first decided that the campus sidewalks, pedestrian mall, and rotunda were a limited public forum. This was because that property was dedicated to education and learning, and the university had only intended to open these areas for use by the university community, not the general public.  Thus, the court concluded, the university was permitted to ban Bloedorn from preaching in these areas.

The “Free Speech Area” on the grassy knoll, by contrast, qualified as a designated public forum because the university’s policies and practices broadly allowed expressive conduct both by university-affiliated individuals and groups and non-sponsored outsiders alike.  The university had not limited the property to use by a specific category of group or speaker, and it had not limited discussion to certain topics.  Instead, the court concluded, the university had intentionally opened the space to the general public without any restrictions on content or identity of speakers.

The court then considered the university’s permitting policy that applied to this designated public forum.  The policy required outside, non-sponsored speakers to disclose their identity and contact information on their permit request form.  The court held the disclosure requirement was narrowly tailored to maximize the university’s interests in allocating access to scarce resources and in protecting the safety and security of its community, since it allowed the university to let an applicant know whether a permit was granted, discouraged criminal activity, and provided contact information in the event anyone was injured or any property was damaged.

The policy also required outside, non-sponsored speakers to obtain a permit at least 48 hours in advance. The court held that this requirement was reasonably calculated to achieve the university’s purpose of maintaining safety and order on campus, since it enabled the university to prepare its safety personnel to receive the speaker and ensure that there are sufficient other safety officers to patrol the rest of 
the campus. 

Finally, the policy limited outside, non-sponsored speakers to one and one-half hours of time on the grassy knoll no more than once a month. The court held that the time restriction was “not draconian,” and that it helped the university allocate the use of its resources and promote the propagation of a wide variety of viewpoints.  Accordingly, the court denied Bloedorn’s preliminary injunction motion.

Take-Away Points

Attorneys for public institutions of higher education should be aware of their schools’ policies and practices for regulating expressive activity on campus. Policies and practices should carefully define different locations on campus as designated, limited, or non-public forums.  Schools should recognize that regulations that are based on the content or viewpoint of speech are almost impossible to defend, so schools will need extraordinary reasons for imposing such restrictions.  Even content-neutral time/place/manner restritions should be narrowly drawn and justified by significant school interests.  Finally, policies can treat members of the campus community — administrators, professors, and students — and their sponsored guests differently than outsiders who are not sponsored and invited to come and speak on campus.

This article appears in the Summer 2015 edition of Saul Ewing’s Higher Education Highlights newsletter. Click here to see the complete newsletter.