As has been chronicled elsewhere, officials at Northern Arizona University claimed that a small group of students (eventually two students) could not hand out tiny American flags to willing recipients in the Student Union, in commemoration of 9/11. The students started to do so outside the Union, then moved indoors when rain began to fall. Once inside, university administrators first told them they could not be there because they did not have an approved "vendor permit." Once the administrators realized that the students were not selling anything, they came back with the claim that the students couldn't hand out flags because they had failed to comply with the university's "time, place, and manner" restrictions on the indoor space at the Student Union. Despite repeated requests from the students to identify how they were violating those "time, place, and manner" limits, university officials could only repeat the mantra, "Time, Place, and Manner." Indeed, one official phrased the First Amendment as "Free speech in a designated time, place, and manner." Here's a link to a video shot by the students involved. The video effectively captures the total lack of disruption that the student activity caused.
Of course content-neutral regulations of speech that involve time, place, and manner limits are valid if the government has a significant interest in so limiting speech, its significant interest would be less effectively achieved without the regulation but does not burden substantially more speech than is necessary to achieve the interest, and the regulation leaves open ample alternative channels of communication. It's hard to assess the validity of the actions of the university administrators without knowing more of the details of the university's "time, place, and manner" restrictions, but here are my thoughts. The Student Union is probably a limited public forum, open to university students, staff, and faculty. Let's assume that NAU limits distribution of literature or symbolic speech by a valid, content-neutral, permit process and that the students did not comply with that process. So long as the university's limits on speech within the Union are content-neutral they facially comply with the rules applicable to limited public fora. But as applied? Here are a tiny group of students who, in compliance with university rules, start to distribute flags on 9/11 in the open space outside the Union. Then it starts to rain, and they come inside, back up against a wall, and offer a flag to willing takers without in any way obstructing pedestrian traffic. What is NAU's significant interest in applying its facially valid rule to this activity? Perhaps it is fear that if it does not apply its rule to every instance, it will be charged with selective enforcement and thus open the door to charges of viewpoint discrimination. But does non-enforcement in this instance render the interest ineffective, or does enforcement burden substantially more speech than is necessary to achieve the interest? The university's interest in avoiding selective enforcement continues to be effective if it makes exceptions now and then for students who come in out of the rain or snow to engage in activity that has virtually no impact on the usual uses of the forum. That's what a sensible administrator would do. Moreover, a rigid, no-exceptions-ever, rule would ban a lot of speech that is not necessary to be controlled. Handing out social invitations, or carrying a placard from some unrelated demonstration while checking your mailbox, might come within this rule and a no-exceptions-ever policy would sweep this activity into the banned dustbin. Finally, did application of NAU's rules here leave open ample alternative channels of communication? The alternatives were to stand in the rain or use a booth where there was no pedestrian traffic. The latter is surely not an ample alternative. The former is more debatable, but people don't linger in a hard rain and the opportunity for communication is vastly reduced.
This is yet another example of a colossal lack of common sense and tone deafness. Even if NAU was on firm ground in defending the facial validity of its speech policies, its application to this isolated activity was bone-headed stupid. It's ironic that this is the same university that has a First Amendment Plaza outside of the building housing its Department of Communications. Inscribed on the stainless steel facade is the text of the First Amendment. But if you call up the school to obtain a permit to deliver a political speech on the First Amendment Plaza, you will discover that, according to a former Libertarian candidate for Congress in Arizona, political speech is not permitted on the First Amendment Plaza.
On a personal note, I went to high school a long time ago in Flagstaff, where NAU is located, and I often studied in the NAU library. It saddens me that a place that fostered my own intellectual freedom is mired in bureaucratic rigidity that stifles the exchange of ideas.
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