Appeals Court Says University Must Relax Restrictions on Campus Proselytizing

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. 6^th 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 6^th 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 6^th 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?