This week a federal judge struck down the University of Cincinnati’s policy limiting public speech and demonstrations to a tiny “free speech zone” on the 137-acre campus. Even within that zone university permission was required to speak. The school’s chapter of Young Americans for Liberty wanted to gather signatures for a ballot initiative. It requested and obtained official permission, but it found that that almost no students passed through the free speech zone.
The group sued. It was represented by the Foundation for Individual Rights in Education (the FIRE) and the 1851 Center for Constitutional Law in Columbus. The court held the policy clearly violated the constitutional right of free speech.
The court’s decision is hardly surprising; nearly every speech restriction at a public college that has been challenged in court has been found unconstitutional. So what might seem surprising is that university officers first imposed this policy and then defended it in court. How could the school’s lawyers have failed to realize that the policy was blatantly illegal?
Of course, these people aren’t stupid. By adopting the policy school officials gained approval from their many constituents who want to repress speech they don’t agree with. The costs of their illegal acts (including attorneys’ fees for the victorious plaintiffs) will be borne not by them but by the taxpayers. School officials had nothing to lose by breaking the law.
What is more surprising is that state Attorney General Mike DeWine—a Republican—not only defended the school’s policy but hired a private law firm at considerable expense to try to beat down the plaintiffs’ lawyers with a blizzard of motions. Fortunately this effort failed, but taxpayers again must foot the bill.
Given all this, it’s hardly surprising that a huge number of public colleges retain speech policies that are clearly unconstitutional. They calculate, cynically but accurately, that no one is likely to take the time, trouble, and expense of calling them on the carpet. However, for those who are willing to make an effort, organizations like the FIRE and the 1851 Center are ready to help.
George W. Dent, Jr. is Professor of Law at Case Western Reserve University school of Law.