Editorial: Free Speech Rules – Still Illegal

Universities stand upon the bedrock of free speech. An open forum of ideas is the very essence of the academy. Stanford should pride itself on fostering an open environment in which all students may express their views without precondition, but this Editorial Board is disappointed by our University’s repeated refusal to meet even this basic standard.

Last week, The Daily reported that the student group Stanford Says No to War had been prohibited from passing out flyers on multiple occasions because doing so violated the University’s free speech policy. This policy designates White Plaza as the approved “free speech zone” from 12-1pm. The implication is that speech isn’t free anywhere else, and Stanford’s policies explicitly require that any other protest or demonstration are banned without prior approval from the University.

Further, by confining speech activities to White Plaza, students are unable to exercise their freedom of speech at the locations where many important decisions are made. This was the case with the Stanford Says No to War events, while demonstrations before the recent Faculty Senate meeting to reinstate ROTC only proceeded because the event organizers received prior approval from the University. Consider for a moment how ridiculous this requirement is. When students on our campus stage any kind of protest or demonstration, is it almost always in response to a University action. This rule forces students to ask the University for permission to protest University policy.

Stanford’s inconsistent and overly broad restriction of speech has extended to political activity as well. In 2004, the Stanford Democrats attempted to hold a phone bank for John Kerry in White Plaza during the approved “free speech” hours. Even though the event followed every one of the University’s rules, administrators deemed it objectionable and prevented it from proceeding. Only after Kai Stinchcombe MA ’05 Ph.D. ’10, president of the Stanford Democrats, wrote an October 11, 2004 Daily op-ed alleging that Stanford’s free speech policy was illegal did administrators promise to revisit and update speech rules. This put the issue to rest for all parties involved, and the phone banks were allowed to proceed.

But four years later, when the Stanford Democrats attempted to organize a phone bank for Barack Obama, Stanford again denied them permission, citing the very rules that the University had promised to revisit. The phone banks were moved off campus, making them inaccessible to most students who had planned to participate.

Why did this happen? Because Stanford’s policies on partisan speech, as expressed in the University’s Administrative Guide Memo 15.1, had not changed. It has now been more than six years since the University first promised to update its speech policies to reflect the 2004 agreement, and still no progress has been made.

Not only are these rules unreasonable and antithetical to academic freedom, they are also almost certainly illegal. Under California Education Code, Section 94367, also called the Leonard Law, private postsecondary educational institutions may not punish students for engaging in “conduct that is speech or other communication that, when engaged in outside the campus or facility of a private postsecondary institution, is protected from governmental restriction by the First Amendment to the United States Constitution.” The Leonard Law also “does not authorize the prior restraint of student speech.”

University lawyers argue that its rules qualify as so-called “time, place and manner” (TPM) regulations, which the Supreme Court has allowed as restrictions on First Amendment rights. However, Stanford would be hard-pressed to explain how its policies meet the Supreme Court’s four-part test for TPM restrictions, which requires that they (1) be content-neutral, (2) be narrowly tailored, (3) serve a significant public interest and (4) leave open alternative channels of communication. If the present rules do not meet any one of these criteria, they are illegal. We believe they are so egregious that they actually violate all four parts.

1. Content-Neutral?

When Stanford chooses to allow expressions of speech, the approval process is unilateral, opaque, and on a case-by-case basis. To the extent that speech policies are ambiguous, the University is free to interpret them however it wishes — and its past behavior has been far from consistent, as its history of silencing student political activity demonstrates.

 

2. Narrowly Tailored?

It is also laughable that restricting free speech to a tiny fraction of campus for one hour per day is a “narrowly tailored” regulation. Even if the entire campus were only five times as big as White Plaza — and it is much, much larger than that — the present rule would ban speech in more than 99 percent of all possible circumstances.

 

3. Significant Interest?

Stanford claims speech restrictions are necessary to avoid losing its tax-exempt status. The IRS begs to differ: in a 2002 document entitled “Election Year Issues,” the agency explains that to jeopardize the University’s tax-exempt status, “the political activity must be that of the college or University and not the individual activity of its faculty, staff, or students.” Moreover, “the actions of students generally are not attributed to an educational institution unless they are undertaken at the direction of and with authorization from a school official.” This would seem to refute Stanford’s primary rationale for limiting student speech. While other interests would seem reasonable — say, avoiding classroom disruptions — the current policies are not narrowly tailored for those interests.

 

4. Alternative Channels?

Even in the age of Facebook, students have few avenues to express dissatisfaction with University policy. While this Editorial Board supported the Faculty Senate’s decision to vote in favor of ROTC’s return, we were discouraged that many administrators and faculty members outside of the ad hoc committee declined to meet student groups advocating against ROTC. Short of protesting, these students had no other means of expressing their dissent to University officials.

For all these reasons, we challenge University administrators to change current speech policy. The University must acknowledge that its vague and overly broad regulations have created problems for student groups, suppress student dissent, and likely violate California law. Nothing less than our most fundamental freedom is at stake.

 

 

About Editorial Board

Editorials represent the views of The Stanford Daily, an independent newspaper serving Stanford and the surrounding community. The Daily's Editorial Board is chaired by President and Editor in Chief George Chen, who is joined by Executive Editor Marshall Watkins, Managing Editor of News Catherine Zaw, Managing Editor of Sports Do-Hyoung Park and Managing Editor of Opinions Winston Shi. To contact the Editorial Board chair, submit an op-ed (limited to 700 words) or submit a letter to the editor (limited to 500 words) at eic@stanforddaily.com.