The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
[UPDATE: Press accounts originally reported that the removal of the posters stemmed from a student government decision, and this post reflects that view. But since then it has become apparent that University administrators took the lead on this; the legal analysis below remains the same, but the responsibility for the decision should be placed on both the University and the student government.]
Posters promoting a "straight pride" week at a northeast Ohio university were removed this week after student leaders determined that the message went beyond free speech.
Youngstown State University student government leaders told WKBN-TV they decided to remove the posters after consulting with university officials….
Campus leaders said that while they believe the posters were meant as satire, the message was inappropriate.
"If you actually read through it, it seemed like it went way further than a free speech issue," said Student Government President Michael Slavens. "There were swear words and took it a little further than the average free speech should go."
The posters counter the school's mission to create a diverse campus, university spokesman Ron Cole told WFMJ-TV. Officials are investigating possible student code violations, and disciplinary action may follow….
Here's what seems like a copy of the poster:
Here's the YSU Student Government Association statement:
It has been brought to the attention of several SGA Executive Board members that "Straight Pride" posters have been hung across campus, seemingly in response to LGBTQIA efforts to promote diversity and foster a culture of acceptance on campus. Though SGA respects the free speech of all YSU students, these postings were not authorized, contained vulgar language, and, unfortunately, miss the point of minority activism.
When individuals belong to dominant societal cohorts (Caucasian, male, heterosexual, etc.) it is very easy to state "We have nothing against your sexual orientation" and to claim that efforts to raise awareness are "annoying." For minorities who every day face discrimination and marginalization, such efforts are necessary—without zeal and persistence, sociology teaches that minority concerns very easily go by the wayside. Thus, dismissing the efforts of LGBTQIA students to push for equitable treatment as unnecessary is dangerous because it catalyzes discrimination, whether meant to do so or not.
I am writing this as SGA's VP, not because I am the only member of SGA to hold this view, but because time was of the essence and a statement needed to be made before total Executive Board consensus could be reached. However, I do not doubt that my colleagues, all of whom I hold in the highest of regards, would agree with me in saying that these posters are problematic, even if their designers failed to realize as much or meant no direct harm.
For those interested in learning more about the tendency of majorities to subconsciously assert dominance over minorities, watch the talk given by Dr. Jackson Katz linked below. Though Dr. Katz speaks specifically to violence against women, the lessons he teaches can apply to all minority groups and their struggles to gain a level playing field.
With this, let's all move forward together, appreciative of diversity and united as students at Youngstown State University.
1. The message itself is fully protected by the First Amendment, just as much as pro-gay-rights speech is protected. Speech is protected even when it runs "counter [to] the school's mission to create a diverse campus." Speech is protected even when it "miss[es] the point of minority activism." And speech is protected even when it contains vulgarities, as the famous "Fuck the Draft" jacket case, Cohen v. California, makes clear. If the university does decide to impose "disciplinary action" based on the message expressed in the posters, that would clearly violate the First Amendment.
2. Even fully protected speech can't be posted in all places on campus. Generally speaking, there is no First Amendment right to post flyers on government property. (See Members of the City Council v. Taxpayers for Vincent (1984).)
Thus, if the posters were posted in places where no posters were allowed, then they could be taken down. If the posters were posted in places that were dedicated to the university's own speech (e.g., some bulletin board on which a department announces the events that it endorses) or to the student government's own speech, then they could be taken down by the university or by the student government as well. Likewise, if the posters were posted in places that were only open to registered student groups, then they can be taken down from there, too. (There could be some mild disciplinary action for violating any such posting prohibitions, though only if the prohibitions were enforced in a viewpoint-neutral way.)
3. When, however, the university opens up bulletin boards for anyone to post things, then that creates a so-called "designated public forum" or "limited public forum." I certainly see plenty of such bulletin boards around UCLA, and I expect they exist at most universities. And in such forums, the government cannot discriminate based on viewpoint in choosing what is posted; it cannot take down the Straight Pride posters while allowing students to express other views. (Again, see Taxpayers for Vincent.)
The university might be able to open up bulletin boards for students to post things, but impose a viewpoint-neutral prohibition on the use of vulgarities; but there would have to be a policy spelling that out, and the policy would have to be enforced evenhandedly regardless of viewpoint. And the university might be able to impose no-posting-things-over-other-things rule— the Huffington Post (Nick Visser) story reports that some of the posters were pinned on top of a pro-same-sex-marriage-rights rally—but again it could only enforce it if it did so evenhandedly regardless of viewpoint.
Where the posters were placed, then, turns out to be a pretty important question. If they were just taken down from places that weren't open for general posting, then that would be constitutionally permissible; again, the government doesn't have to open up its building walls for public speech.
But if the posters were taken down even from generally open bulletin boards, without any viewpoint-neutral policy justifying the removal, then that would violate the First Amendment. And if students are disciplined because of the message on the sign (as opposed to because of some posting policy violation, where the policy is enforced in a viewpoint-neutral way), that too would violate the First Amendment.