SILENCE IN THE SOUTH? 'Bama vs. Young Americans for Liberty
Part 1 of 4: Alabama Supreme Court to decide if "Free Speech Zones" are legal on public college campuses
(This is part one of a four-part series, “Silence in the South?” covering the Young Americans for Liberty v. the University of Alabama System.)
Thousands of students graduated this month from the University of Alabama System’s institutions in Tuscaloosa, Birmingham, and Huntsville, and among the lessons many learned on these taxpayer-funded campuses was this:
Information should be controlled by an authority, and at times quarantined into “free speech zones” where the vulnerable (or in truth, the powerful) won’t have to see or hear or deal with whatever someone might say, or be inconvenienced or annoyed by their right to say it.
Thankfully, the Alabama Supreme Court has an opportunity to teach a lesson of its own when it decides if the University of Alabama in Huntsville’s free speech zones violated a student’s rights under the Alabama Campus Free Speech Act.
At issue is the school’s policy requiring students to submit a detailed application in advance of speaking in outdoor areas of the university, or else keep their speech within the boundaries of certain “defined areas” that some describe as being on the “peripheries of campus.”
“University campuses should be encouraging free speech, not stifling it with burdensome and illegal rules like speech zones and requiring students to get a permit from college administrators before sharing their views,” said Michael Ross, an attorney with Alliance Defending Freedom, the organization that’s representing the student who sued, Joshua Greer, and his student organization, Young Americans for Liberty.
Finis St. John, the chancellor of the University of Alabama System, disagrees. His attorneys contend that UAH’s policy simply imposes “time, place, and manner restrictions” that are commonplace throughout society.
“Preventing the university from using reasonable time, place, and manner procedures to ensure the safety of its campus and the pursuit of its educational mission cannot be supported by law or logic,” their brief to the Supreme Court states.
But with plenty of existing rules governing student conduct and campus safety — all of which could apply to someone being unruly or unsafe — why draft a rule specifically targeting speech … unless it’s speech that you’re specifically targeting?
Most people can tell the difference between these two examples:
Group A: Students make pro-life posters, place red tape over their mouths to symbolize the voiceless unborn, and stand outside of a campus building to protest legalized abortion. One student tells a school newspaper reporter that while she doesn’t agree with the group’s opinion, “I like how they’re not up in everyone’s face. I think it’s the most respectful a protest can be.”
This happened at Boston University.
Group B: Students enter the campus auditorium where a visiting scholar is speaking and scream — “Your message is hatred, we cannot tolerate it!” and “Shut it down!” When he gives up after 20-minutes of this and leaves, the local professor escorting him has her hair pulled violently by a protestor, twisting her neck badly. Protestors follow them outside, blocking and then rocking their car back and forth, jumping on its hood, until finally the professors escape. They continued the lecture via live stream from an unknown location.
This happened at Middlebury College.
One group of students should be suspended or expelled for violating the school’s code of conduct, and police should arrest at least one of them for assault.
The other group should be left alone — before, during, and after their protest.
It’s obvious which is which.
Schools don’t need rules specifically regulating speech to deal with things like this. Rules governing behavior or public safety will do nicely enough.
“Reason would dictate that free speech activities should not be allowed in the middle of a campus pathway or thoroughfare that blocks vehicular or pedestrian traffic,” said State Sen. Arthur Orr, R-Decatur, who voted in favor of the act. He added that they also shouldn’t be allowed in doorways that prevent entry or exit, or inside at all.
So, Orr and his fellow lawmakers who drafted and supported the act clearly recognize the distinction between free speech activities and actions that disrupt or threaten public safety.
The University of Alabama System’s policy doesn’t.
The State Law
In 2019, in response to growing hostility towards civil debate and the courteous exchange of ideas on college campuses across the nation, the Alabama State Legislature overwhelmingly passed the Campus Free Speech Act.
“With this law, we are making it very clear that in Alabama, the First Amendment rights of all students, liberal or conservative, will be protected from unfair and discriminatory university speech policies,” said then-State Rep. Matt Fridy, who is now a judge on the Alabama Court of Civil Appeals, when the bill passed in the spring of 2019.
The act, signed by Alabama Gov. Kay Ivey that summer, restated the constitutional right that anyone “may speak, write, and publish their sentiments on all subjects, and that no law shall ever be passed to curtail or restrain the liberty of speech.” It also noted that the U.S. Supreme Court has singled out a university as a special “marketplace of ideas.”
In short, a government entity cannot impede free speech, especially if that government entity is a university.
If you can’t speak freely there, the thinking goes, you can’t speak freely anywhere.
Then the act enshrined a few key notions to avoid any confusion about where the State of Alabama stood on the issue. Among them were:
It is “not the proper role of (universities) to shield individuals from speech protected by the First Amendment … including … ideas and opinions they find unwelcome, disagreeable, or offensive.”
All university employees and students are free “to take positions on public controversies … in outdoor areas of the campus, and to spontaneously and contemporaneously assemble, speak, and distribute literature.”
And to be crystal clear, lawmakers defined a free speech zone as an “area on campus … designated for the purpose of engaging in a protected expressive activity, ” and then declared that universities “shall not” create them.
And then UAH adopted a policy that did just that.
The Campus Policy
In the summer of 2020, UAH released a policy requiring students to complete a detailed application within three business days of the time they wish to speak in an outdoor area of campus.
The application’s approval is then subject to at least 24 different conditions being met — from availability of the space to the student’s record to whether a staff member believes the date, time, or space is unreasonable.
This regulates speaking in outdoor areas of the campus. It’s not just about reserving interior classrooms, conference rooms, or auditoriums, or even limited to large outdoor gatherings that may have certain requirements (parking, seating, power to public address systems, etc.). That would be perfectly reasonable and should be expected.
Instead, this outdoor policy “applies to all student speech, even a single student speaking alone,” states the Young Americans for Liberty’s brief to the Supreme Court.
And here’s where we get to UAH’s free speech zones … excuse me … UAH’s “Spontaneous Activities of Expression” zones. (Move over, George Orwell.)
The policy reserves certain areas of campus for “spontaneous activities of expression.” Someone defined this type of speech as being “generally prompted by news or affairs coming into public knowledge less than forty-eight hours prior to the spontaneous expression.”
(Question: Can any mere mortal ever accurately judge and fairly administer oversight based on such a subjective and slippery definition? Answer: No.)
Students don’t need advance approval to speak on these time-sensitive issues — however that’s actually determined — but they must keep themselves within the boundaries of 16 different “defined areas” of campus. These are places like “the grassy area north of the University Fitness Center” or the “grassy area south of Von Braun Research Hall.”
The lawsuit states 13 of those areas “exclusively border parking lots, roads, and lakes” and that the university has confined “nearly all these zones to the peripheries of campus.”
Those areas sure sound like places that have been, to reference the language from the state law, “designated for the purpose of engaging in a protected expressive activity,” which universities were told, in plain English, that they “shall not” create.
Remember, students may not talk about any old thing while standing inside these Spontaneous Activities of Expression Zones. They must keep their speech precisely focused on information that entered their mind less than 48-hours ago. Anything else, and the policy states they’ll be subject to disciplinary action.
(Someone deserves credit here. Even Orwell didn’t think of time-stamping thought.)
That means these Spontaneous Activities of Expression Zones are actually worse than the Free Speech Zones we’ve seen on some of the more progressive campuses across the nation. At least on those, students can presumably walk into such zones and speak about whatever they wish, whether it’s about something that happened 48-hours ago or 48-years ago.
The university’s brief to the high court says this is all very reasonable and well within the established practices that have been used to limit free speech for years. Such limits, it states, “protect our state campuses — as well as all governmental buildings and courtrooms — from anarchy and mob rule.”
And, their brief continues, if the university’s time, place, and manner restrictions are unconstitutional, then “the (State) Legislature’s own events policy, (the State Supreme) Court’s media coverage plan, and countless statutes that have imposed some time, place, and manner restriction on speech are all unconditional.”
But legislatures and courtrooms aren’t quite the same as outside, open areas of universities, are they? And even though time, place, and manner restrictions exist, and often for good reasons, a public university, by the very nature of its public mission, must operate on the outermost limits of any such restrictions.
When asked if the University of Alabama System’s board of trustees, whose primary function is to “determine the major policies of the system,” had any thoughts on this specific policy, its staff offered the following statement:
“We do not comment on the specifics of ongoing litigation. The University of Alabama System Board of Trustees, the University of Alabama System, and the University of Alabama in Huntsville (UAH) are steadfastly committed to the freedom of speech and expression for all campus community members. Our policies were implemented to preserve this important constitutional right.”
UAH was contacted but did not offer a comment.
The Lawsuit
In the summer of 2021, Joshua Greer, then a rising junior at UAH and president of the university’s chapter of Young Americans for Liberty, sued seeking to strike down the university’s approval policy and its free speech zones.
Judge Alison Austin, a state circuit judge in Madison County, dismissed the student’s complaint last February.
“The university does not prevent the plaintiff’s expression,” Austin wrote in her ruling. “It merely regulates, in a viewpoint- and content-neutral manner, when and where plaintiffs may speak on the university’s property.”
Young Americans for Liberty appealed her decision to the Alabama Supreme Court, where it now sits.
“Alabama state law guarantees all students at public universities can freely speak outdoors on campus grounds,” said Alliance Defending Freedom’s senior counsel, Tyson Langhofer. “We hope the Alabama Supreme Court will affirm the right of the students of Young Americans for Liberty to exercise their freedoms under state law.”
Coming in Part 2 of 4: While these professors and lawyers and judges argue about what the law means, why not ask those who wrote it?
(J. Pepper Bryars is Alabama’s only reader-supported conservative journalist. You can support his writing by subscribing at https://jpepper.substack.com/subscribe.)