Appeals Court Says University Must Relax Restrictions on Campus Proselytizing

May 2, 2012 by 41 Comments

Tennessee Technological University (TTU) requires all non-students who wish to speak (or preach) on campus to follow detailed regulations which require, among other things, a two-week advanced notice.

The U.S. 6th Circuit Court of Appeals recently held (PDF) that a non-student evangelist — John McGlone — may challenge TTU’s campus speech regulations, and this is a big deal.

A campus preacher

So what’s going on here? First, realize that to bring suit in federal court, you have to have “standing.” The court determines whether you have standing by asking: 1) Have you suffered an actual injury; 2) Is the injury traceable to the conduct of the person or organization you’re suing; and 3) Would the injury likely be helped by a decision in your favor.

The (lower) district court held in part that because McGlone never applied for a permit (and was, in turn, never denied a permit), and was never arrested or prosecuted for his speech, he suffered no actual injury and therefore did not have standing to sue.

The 6th Circuit disagreed. According to the judges there, McGlone had a constitutional right to free speech, and that right was violated by TTU’s policies.

Under the facts of the case, this seems right to me.

McGlone requested a waiver of the 14-day notice period, that waiver was denied, and he was threatened with arrest if he decided to speak anyway.

But TTU’s campus is private property, so why can’t they allow or disallow people to speak on their campus as they see fit? After all, if someone wanted to proselytize in my backyard, I could get them booted for trespassing, right?

Right. But when deciding whether an individual can exercise his or her speech rights, courts differentiate between traditional public forums, designated public forums, and nonpublic forums. Traditional public fora, such as streets, sidewalks, and parks are places which (by long tradition or by government fiat) “have been devoted to assembly and debate.” Designated public fora are nontraditional places that the government has opened for public discourse. And nonpublic fora are, for example, my backyard.

While the trial court did not reach the issue, the 6th Circuit held that TTU’s perimeter sidewalks are traditional public fora, and the University’s interior grounds are designated public fora, which means that TTU cannot abridge a person’s right to free speech except under very limited circumstances.

Even though campus proselytizers are awfully annoying, I think this decision is right (in addition to being legally correct). By requiring people to register two weeks in advance to speak, the University was severely limiting peoples’ ability to speak when they wanted. Campus grounds are — and should be, I think — one of the places where people go to share ideas, whether they attend the school or not. Even though I disagree with McGlone’s message, limitations on this type of speech should be… well… limited.

What do you think?

Filed Under: Education, General, Law 41 Comments
About katherine

Born in Texas, Katherine is now a lawyer in the northwestern United States.

  • http://dogmabytes.com/ C Peterson

    The law can be complex and confusing. But that’s an awesome picture of a madman!

  • JWH

    Are you sure the campus qualifies as “private property?”  Wikipedia says Tennessee Tech is a public university.

  • jdm8

    I would like to think that university grounds should be somewhat protected ground for those involved with the university.  I certainly wouldn’t want to be pestered by outsiders as a student, but being a public university probably puts a limit to that.

  • http://www.facebook.com/profile.php?id=523295632 Tom Tuerff

    When I was in college back in the 70s at NAU in Flagastaff, AZ there was an annoying preacher guy who used to pace back and forth in front of the student union, yelling and screaming his head off all the time. Finally a friend of mine got fed up with him and, being a drama major, decided to outyell him one day. He set up a table near where the guy was screaming and yelling. On the table he dumped a considerable number of vegetables and a bowl and proceeded to yell out, at the top of his lungs, the instructions for making a basic salad. He started chopping lettuce and carrots and all that, yelling the whole time. Got quite a crowd laughing their head off. Mr. Proselytizer didn’t think it was funny and stormed off. We never saw him again.

  • http://squeakysoapbox.com/ Rich Wilson

    I’m personally happy to see a more liberal application of standing.  I’ve seen it used to dismiss several cases in what seemed to this layperson as an extremely twisted bit of logic.

  • Godbeyaj

    A begrudging yes. Campus preachers are despicable morons, harmful towards the faith they claim to represent. They are offensive, annoying, and mildly threatening to everyone else. They generally create a negative atmosphere that no one wants to be around. Their aim is to provoke and more than anything they seem to generate hatred and alienation. However… they legally should be tolerated and allowed to use the public forum with the same restrictions on them as everyone else. If they are to be dealt with it cannot be through censorship.

  • http://www.everydayintheparkwithgeorge.com/ Matt E

    I agree with the court’s decision 100%. It seems to be a pretty clear-cut freedom of speech case and, as an atheist, I an very protective of our 1st amendment rights.

  • Onamission5

    So long as they are not interfering with the students’ rights by interrupting classes and study groups or making pathways impassable, so long as they stay within the public fora, so long as their behavior does not border upon or become harrassment, then yes, I agree.

  • Onamission5

    Awesome. Just awesome.

  • Coyotenose

    Then churches are public forums inside and out as well, as they invite people to enter and discuss religion.

  • Onamission5

    I’d agree with you if preachers were being allowed inside of college buildings rather than on the sidewalks.

    People are more than welcome legally to stand on sidewalks outside of churches and campaign all they want, it’s just that we don’t, because we generally think that is impolite.

    I am curious though where disturbing the peace comes into play irt free speech. That’s always been a shady area for me.

  • http://www.facebook.com/AnonymousBoy Larry Meredith

     I’m surprised Mr. Proselytizer didn’t…
    *puts sunglasses on*
    toss the salad
    YEAAAAAAHHHHH!

  • http://pulse.yahoo.com/_4JJJDZLJFCU5TIFAL5JIVQSJMQ Robert

    Absolutely agree the preacher can be there with the normal caviats of not abusive or deemed dangerous.  Watching people publicly try to sell a superstition is the best educational tool possible.  Good practice, pull out the bible and ask him advice on the toughies i.e. slavery, killing nonvirgins, eating shrimp. 

  • dearestlouise

    As a student at TTU I have not encountered this man or anyone else like him; however, I am a transfer student who is now in my senior year and I spend a very limited amount of time on campus in one building. Having said that I appreciate that the TTU administration has attempted to keep such nonsense off campus. 

    College campuses are not just a place where students go to class but many live there and work there. It’s a place where students dine and socialize so someone proselytizing is more than a minor annoyance. If I lived on campus I would certainly feel like this man was in my backyard and I would choose not to live on campus the following semesters and avoid the areas where he generally is. So if he’s close to the dining hall I would not eat on campus. I think there’s a possibility of a financial impact.

    Anyways, I stand with the administration and appreciate that they are trying to keep the campus atmosphere welcoming and pleasant for students.

  • http://www.turk-escortlar.com/ Jack

    i’m cofused but this is a great picture

  • rhodent

     Based on the “History” page at TTU’s own website, you are correct.  The university was founded as a private institution but turned over to the state not long after.

  • rhodent

    Agreed.  Lately it seems that the primary purpose of denying someone “standing” is basically to say “We know you’d win and we can’t have that, so we’re going to come up with some reason you aren’t allowed to go to trial in the first place.”  That’s wrong.

  • http://twitter.com/the_ewan Ewan

    The White House is a publicly owned state institution. So is a military base. So is Lawrence Livermore.

    Try walking into any of those and see whether anyone tries to exclude you from your ‘public property’.

  • Jeff_in_the_desert

    disturbing the peace usually implies overly loud noise and noise at inappropriate times. That is why universities can require a permit for someone to use a loudspeaker system. And, if you are going to go out in the middle of the street at 2 in the morning and start screaming, you’ll probably get arrested for disturbing the peace.

  • http://twitter.com/the_ewan Ewan

    “If I lived on campus I would certainly feel like this man was in my backyard”

    Nicely put. I was just about to say something along similar lines, but less eloquently.

  • Bob Becker

    Yup.   Absolutely right. 

  • Bob Becker

    Free speech on public campuses or anywhere else is not an absolute right. The courts have consistently held that reasonable time, place and manner restrictions may apply. [E.G. you can not disrupt classes by preaching by bull horn outside a classroom building, etc.]  Your White and and Livermore examples are poor ones. 

  • BentleyOwen

    That is a terrific story. And it shows that you can get rid of some of these guys without making public speech more difficult overall. 

  • brian dean

    There is discussion in the comments about whether TTU is private or public, but if the former, could atheists choose to speak at Bob Jones U?

  • Onamission5

    I feel for you. I also think it’s like when I had a neighbor who, upon finding out he had single moms living behind him, would stand on his back porch all. damn. weekend. reading out loud bible passages about purity and such. He was well within his legal rights, but it sure did keep me from enjoying the outdoors.

  • Jess

    That is brother jed in the picture…he used to come to the University of  Mo when I went to school there.  He is really nice in person but when he preaches he has this whole persona that he made up like a southern baptist snake handler.    He entertained me on many a lunch break.

  • dearestlouise

    TTU is indeed a public university.

  • Carla

    I tend to agree with you, but I always drew a distinction between the public and private times at my school. Traditional class hours always seemed fair game, but I think “after hours” when students are eating, working, and relaxing should fall into the backyard genre, as should locations like the dining hall and dorms that are supposed to be exclusive and private to students, and somewhere they cannot escape going.

  • Carla

    My school was private, and allowed preachers during traditional school hours. I never saw one after hours, but I don’t know if that was their courtesy or campus rules.

  • Coyotenose

     I get what you’re saying, but I think the physical form of the public arena is the thing. TTU’s interior grounds are considered public fora by this court, and the logical* equivalent is the public area of a church, which is pretty much by definition inside of it rather than the sidewalk.

    *for my value of “logical”, whatever that may or may not be worth.

  • http://twitter.com/the_ewan Ewan

    Maybe you’d like to explain how? You may have a right of free speech, but you don’t have a right to just wander onto a site simply because it’s publicly owned. I have no problem with the idea that he can say whatever he want, but I don’t see why the university should be forced to allow him access to their site in the first place.

  • Coyotenose

    Vipers look like they’re smiling from the right angle, but they’re still full of venom.

  • Bob Becker

    Because it’s a public university, and it’s established a “public forum” on campus. That means it cannot unreasonably restrict free speech on the campus grounds, and the two week notice seemed to the court, I suspect [and to me] an unreasonable restriction on free speech.

    Many universities have established, or tried to, “free speech zones,” and have tried to limit free speech to those zones. They are generally very restricted spaces. The courts have, when these are challenged, have been declaring such draconian restrictions as unreasonable and so violations of the first amendment.

  • dantresomi

    I think the courts were right on this one. If TTU can prove that the waiver was denied due to scheduling conflicts  or because McGlone was requesting for too many amenities that TTU couldn’t provide, then they were in the wrong. 

    Studying, teaching, and training on college campuses has taught me that campus preachers come a dime a dozen. 

    Of course fundies are going to take this case and run with it. 

  • http://www.facebook.com/people/Margaret-Whitestone/100001682409207 Margaret Whitestone

    Let the nutjobs go and preach.    We’ll probably even get countless hours of Youtube entertainment out of it.

  • monyNH

     I’m glad you pointed out those two caveats, My concern would be whether there is a clear definition regarding free speech activity that crosses the line to harassment. As long as everybody knows what the boundaries are…welcome to the arena.  :)

  • Frank Bellamy

    A university classroom that student organizations can reserve is considered a designated public forum by the courts. So is a student activity fund which student organizations can apply for money from. In neither of these cases have the courts (or anyone else that I am aware of) ever suggested that because a public university opens such forums to its own students, that it must therefor open them to nonstudents. When the government creates a designated public forum, it can restrict the forum to the use of certain types of individuals or groups or to the discussion of certain topics, so long as those restrictions are viewpoint neutral and reasonable in light of the purposes served by the forum. So why can’t TTU limit its campus to its own faculty and students? At first glance it doesn’t look like free speech requires this person to be allowed access.

  • Doug Wendell

    They definitely should allow it.  Wacko evangelists are an integral part of the college experience.

  • https://twitter.com/#!/OffensivAtheist bismarket

    First page i come to this morning, & i see the picture of “A Campus Preacher” roflmao, thank you so much. A little early but thanx non the less;-))

  • https://twitter.com/#!/OffensivAtheist bismarket

    Not JUST impolite, pretty pointless & in some areas pretty dangerous, i would have thought.

  • https://twitter.com/#!/OffensivAtheist bismarket

     I’m from the UK where we don’t have any constitution or bill of rights (that matters to ordinary folk), but we do de-facto have those rights & i think this fool should be allowed to say what he likes within reason(oxymoron?). The problem now may be that others like him see this ruling as an invitation.


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