The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The college argued—among other things—that it could (indeed must) exclude the anti-gay message precisely because of its viewpoint: the message, the college reasoned (Lela v. Board of Trustees (N.D. Ill. Jan. 27, 2015)),
is in direct conflict with and disruptive of the College's mission to uphold and adhere to the legal requirements for maintaining a non-discriminatory educational enforcement, free of unlawful hostility.
This is the standard rationale used in many campus speech codes aimed at restricting supposed "hate speech." But the federal district court rejected the college's position, and concluded that there was a "high likelihood" that exclusion of the leaflets violated the First Amendment; indeed, the judge's reasoning shows that he was persuaded that the First Amendment was actually violated. Here's a summary of the facts (some paragraph breaks added):
Plaintiffs contend that on or about January 16, 2014, plaintiff [Wayne] Lela contacted WCC [Waubonsee Community College] requesting to distribute flyers on the school's Sugar Grove campus. Lela was referred to WCC employee Debby Wilhelmi, who asked to see copies of the leaflets plaintiffs intended to distribute.
Plaintiffs provided Wilhelmi with two flyers: "The Uncensored Truth About Homosexuality;" and "'Gay' Activism and Freedom of Speech and Religion." Both flyers promote an anti-homosexuality message. Both flyers promote an anti-homosexuality message. The flyers were sponsored by Heterosexuals Organized for a Moral Environment ("H.O.M.E."), an organization founded by Lela….
On January 21, 2014, Lela received a letter from WCC's Executive Vice President of Finance and Operations, David Quillen, denying Lela's request to distribute flyers at the college. Quillen's letter stated that WCC "is not an open public forum" and that "[t]he college consistently limits campus activities to events that are not disruptive of the college's educational mission."
The letter also … [stated that the college's] Facilities Policy provides that "[c]ollege facilities may be made available to college and non-college sponsored programs, provided the use does not interfere or conflict with the normal operations or educational programs of the college; the use is consistent with the philosophy, goals and mission of the college; and the use conforms to federal, state, local laws and ordinances." The school's Solicitation Policy states that "any type of solicitation, including but not limited to, commercial, charitable, political, … using college buildings, equipment, services or grounds is prohibited unless there is written approval from the president or a designated representative of the president." …
[In response to a letter from plaintiff's lawyer (at the Rutherford Institute), the Board's lawyer wrote] that "H.O.M.E. will not be granted access to utilize campus property to pass out solicitation flyers" because, pursuant to the school's policy, "solicitation of any kind … is prohibited on campus." The letter also explained that H.O.M.E.'s message "is in direct conflict with and disruptive of the College's mission to uphold and adhere to the legal requirements for maintaining a non-discriminatory educational environment, free of unlawful hostility."
Here's the court's legal analysis, which strikes me as generally quite right. First, the court essentially concludes that the exclusion was viewpoint-based, and that such a viewpoint-based exclusion from a public college campus is unconstitutional:
It is undisputed that WCC permits outside groups, including four-year colleges, to engage in speech activities on its campus. While this does not make the college an open public forum, it does require that WCC not discriminate against outside groups based on the content of their speech. See, e.g., Gilles v. Blanchard, 477 F.3d 466, 470 (7th Cir.2007) (… "a university that decide[s] to permit its open spaces to be used by some outsiders [can]not exclude others just because it disapprove[s] of their message")….
In Blanchard, the court found that application of Vincennes University's solicitation policy to the plaintiff, a traveling evangelist, was "hopelessly vague and thus a supple weapon for excluding … outsiders whose message the university disapproves of." Similarly, WCC's policy, as interpreted by defendant to cover plaintiffs' activities, is suspect.
Although defendant argues that plaintiffs' speech is political, and therefore explicitly banned by the college's Solicitation Policy, there is nothing political about plaintiffs' speech. Plaintiffs' leaflets do not discuss a particular political ideology or align with a political party, nor do they promote a candidate or public official, or solicit any action by anyone. Moreover, if the court were to accept the definition of solicitation offered by defendant at the preliminary injunction hearing—"an active attempt to influence student thinking,"—nearly any type of speech could be considered solicitation, and therefore barred by defendant. As discussed in Blanchard, "[t]o solicit, in law as in ordinary language, is to ask someone to do something, usually of a commercial or quasi-commercial character, for the solicitor." Because plaintiffs' request to leaflet at WCC was not a request to engage in solicitation, application of the school's Solicitation Policy to bar plaintiffs from campus was not appropriate.
Second, the court rejects the college's "heckler's veto" argument—the argument that the leaflets could be excluded because their earlier visit led to a protest, and to a possible threat of violence against the leaflets:
[The board] argues that the college was justified in denying plaintiffs' 2014 request because of a disturbance associated with plaintiffs' visit to campus in 2005. The hearing testimony established that during one of the two days plaintiffs were on WCC's campus in 2005, a group of students protested their presence and message. For plaintiffs' protection, campus police escorted plaintiffs to their vehicles at the end of their scheduled leafleting time.
There was no evidence that plaintiffs acted inappropriately or disruptively during the visit. In fact, plaintiffs complied with school rules to remain behind their table and allow students to initiate discussions. Based on this incident, defendant argues that "notice that even one student was offended and disrupted by Plaintiffs' presence on campus provides grounds for the College to take action to ensure that such harm will not reoccur or be perpetuated in the future." This argument flies in the face of First Amendment jurisprudence.
As has been repeatedly held, "yielding to a 'heckler's veto' infringes a speaker's free speech." … Defendant's concern that plaintiffs' presence on campus may cause a negative student response or disturbance was not a constitutional ground for denying them access to WCC. Indeed, provocative speech is entitled to the same protection as speech promoting popular notions. [Footnote: As has been stated numerous times in a variety of forums, it is not popular ideas, accepted by all, that need protecting. It is unpopular, even offensive, ideas that our most closely held constitutional right seeks to shelter.]
Third, the court rejects the college's "hate speech" argument that the group can be excluded because it is "demeaning to a protected class":
Finally, and most important to the court's analysis, defendant argues that WCC's antidiscrimination policy permissibly bars plaintiffs from leafleting on campus. Defendant contends that plaintiffs' message is "demeaning to a protected class at the College … which the College cannot condone because it is contrary to the College's mission." Defendant explains that because of this, "the College exercised its discretion to avoid harm to any members of the College community who could be targeted by the Plaintiffs ['] comments." Moreover, in a letter to plaintiffs responding to their 2014 request, defense counsel explained that plaintiffs' application to utilize campus property was denied because H.O.M.E.'s anti-homosexuality message was "in direct conflict with and disruptive of the College's mission to uphold and adhere to the legal requirements for maintaining a non-discriminatory educational enforcement, free of unlawful hostility."
Reliance on WCC's anti-discrimination policy to bar plaintiffs from leafleting controverts defendant's argument that the decision to reject plaintiffs' request was content-neutral. Instead, the content of plaintiffs' speech, which the school considered to violate its anti-discrimination policy, was the precise basis for WCC's decision. Consequently, the court finds that defendant discriminated against plaintiffs based on the content of their speech….
[D]efendant argues that an injunction would conflict with its federal obligations to keeps its campus free of discrimination. In support of this argument, defendant points to Quillen's testimony that "if the College were to endorse the discrimination advocated by Plaintiffs, in contravention of federal non-discrimination regulations, the College 'could lose eligibility to provide federal financial aid,' which would harm the college immensely."
Defendant's contention is severely flawed. Allowing plaintiffs to exercise their First Amendment rights on WCC'c campus does not amount to the college endorsing plaintiffs' views or speech. In fact, as plaintiffs point out, the United States Department of Education's Office for Civil Rights has publically stated that its policies should not be carried out in ways that impair First Amendment rights. See U.S. Department of Education, Office for Civil Rights," First Amendment: Dear Colleague," 28 July 2003, available at http:// www2.ed.gov/about/offices/list/ocr/firstamend.html (clarifying that colleges and universities should not interpret the Office for Civil Right's prohibitions against discrimination and harassment "as encompassing all offensive speech regarding sex, disability, race, or other classifications.").