Campus Free Speech

SUNY Binghamton Tries to Suppress Students' Flyers Because They "Offended" Other Students

[UPDATE: The university is now reported (as of Friday, May 25) to be saying that no investigation is taking place, and that the original student newspaper account saying that there was such an investigation was mistaken; but the university hadn't responded to FIRE's earlier queries about the matter, and it hadn't responded to my query before I had to put up my post.]

|The Volokh Conspiracy |

The Foundation for Individual Rights in Education, a group whose reporting I trust, sent out this item that I thought I'd pass along; for more, see the linked-to material, including video, the flyers, and FIRE's letter, for more details. I e-mailed the SUNY Binghamton media relations people yesterday, but haven't heard back from them.

After calling students' expressive activities "a violation of the law and of the student handbook," State University of New York at Binghamton campus police surveilled students' literature distribution, threatened to prosecute them for posting flyers indoors, and told them they would be held responsible if other students littered their flyers. Today, FIRE calls on Binghamton University to drop its investigation and commit to ensuring its campus police respect students' First Amendment rights.

"By surveilling students' expressive activity and warning them that they would be held accountable for their peers' behavior, campus police implied that students were engaging in prohibited conduct and could face punishment for doing so," said FIRE Senior Program Officer Sarah McLaughlin. "Unless the university reverses course, Binghamton University risks chilling the speech of not just the students distributing flyers, but the entire student body."

On March 28, a group of students posted approximately 200 flyers in Binghamton University's Downtown Center. The flyers criticized the university's response to recent incidents of perceived racist expression on campus. After about an hour, a campus police officer stopped student Dominic Davy and questioned him about the flyers, warning him that he had broken state law. Binghamton University Investigator Patrick Reilly reaffirmed the officer's comments to the student newspaper, The Pipe Dream, claiming that the flyers constituted "a violation of the law and of the student handbook" and that an investigation was ongoing.

After being warned that they could not continue posting flyers indoors, the students began distributing flyers directly outside the Downtown Center. Shortly after, the same campus police officer stopped the students, explaining that "people came to [him] and were offended by" their flyers. He went on to say that although he "respect[s]" their point of view, when "it alarms other people then [he has] to interject and [he has] to do something about it."

The officer also warned the students that they would be asked to stop distributing flyers if their recipients littered them. The officer informed them, "If you're handing them out and people go in [the Downtown Center] and [start] throwing them on the ground," he would tell them to stop "because it's gonna come back to you."

One student asked the officer why they would be held accountable for other people littering. The officer replied, "It's because its being generated by you guys. . . . They would not be doing that if you guys didn't generate the papers."

The students were interrupted by campus police twice that day while distributing flyers outdoors, and once the next day.

FIRE wrote to Binghamton University President Harvey G. Stenger on April 18, asking the university to end its investigation immediately and ensure that campus police officers receive proper training on students' right to distribute expressive materials on campus.

Binghamton University failed to respond to FIRE's letter.

I should note that the government may ban people from posting flyers on government property, if it does so in a reasonable, viewpoint-neutral way; but FIRE argues that such posting has generally been allowed:

In stating that the flyers placed inside the Downtown Center constituted "a violation of the law and of the student handbook," UPD was presumably referring to SUNY Binghamton's "General Advertising Policies." Those policies assert that "[i]ndividual students will be subject to campus disciplinary action and/or arrest," citing "New York State Penal Law 145.30, Unlawfully Posting Advertisements." Section 145.30 of the Penal Law establishes that one may commit the crime of unlawfully posting advertisements if one has "no reasonable ground to believe" that her or she has the right to post the advertisements: "A person is guilty of unlawfully posting advertisements when, having no right to do so nor any reasonable ground to believe that he has such right, he posts, paints or otherwise affixes to the property of another person any advertisement, poster, notice or other matter designed to benefit a person other than the owner of the property…."

Section 145.30 of the Penal Law is inapplicable to the activities of Davy and the other students involved. The posting and distribution of flyers is a central and time-honored tradition of campus life. Accordingly, the students had—before they were intercepted by the UPD officer—a "reasonable ground to believe that [they have the] right" to post flyers within the Downtown Center. Students, upon seeing flyers posted within a building, have reasonable grounds to believe that they too are free to post flyers. Once the UPD officer informed the students that they could not post flyers inside the Downtown Center, they immediately complied.

And if FIRE is right on the facts, then the university can't exclude this group's flyers on the grounds of the supposed offensiveness of their ideas. [UPDATE: I infer that there may be viewpoint discrimination here because the students report that they were categorically told that they couldn't place flyers in the building (something other groups were allowed to do), and not just told that they couldn't put them up on bare walls (which groups generally aren't allowed to do, and which these students apparently had improperly done), and because the officer's later remarks stressed that the flyers "offended" and "alarm[ed]" some students.]

As to the risk of littering by recipients, that is indeed always present with flyers; but the Court has rejected this as justification for leafletting bans (see Schneider v. State (1939)), and the right to leaflet extends even to nonpublic forum government property such as airports (see ISKCON v. Lee (1992)), and thus at least as clearly extends to outdoor areas on university campuses. The government can punish litterers, but it can't forbid leafletting, even when some of the recipients litter.

UPDATE: Refinery29 (Natalie Goncharova) reported Friday, May 25 that the university is saying that there is no investigation:

Ryan Yarosh, the university's senior director of media and public relations, told Refinery29 that Pipe Dream [the campus newspaper] had erroneously reported that police said they would be investigating the incident.

"There is no investigation and no charges," he said in an interview. "The university does not intend to pursue charges."

Note that the university hadn't responded to FIRE's earlier questions about the matter, and to my question from when I was composing the original post.

NEXT: A Nation of Narcs

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  1. At least it wasn’t their law school. There is still hope for the future.

  2. Binghamton University failed to respond to FIRE’s letter.

    Journalism tip for EV. If party A is not under some formal requirement to respond to Party B, (incidentally, including the case where Party B is the inquiring journalist), then “failed to respond,” is considered bad form. A simple “had not responded,” or “has not responded,” suffices. Sometimes you mention the time by which the non-response is noted.

    1. Not sure why you feel the need to give Eugene Volokh a journalism tip telling him to do it pretty much exactly the way he did it.

      “I e-mailed the SUNY Binghamton media relations people yesterday, but haven’t heard back from them.”

    2. That’s in the email from FIRE to EV. It’s not a news article and it’s not EV’s words.

      1. gormdoc and jph12, good points. Thanks. I should have noticed that. It shows that FIRE is getting a bit peremptory about its mission.

        1. Given that FIRE is going to sue them over this, “failed to respond” seems reasonable

  3. FIRE Senior Program Officer Sarah McLaughlin.

    So that’s what Into The FIRE is all about!

  4. More generally, abstracting this kind of reporting to strip it down to little more than a legal argument is not the right approach. Even court cases need factual context. “Expressive conduct,” doesn’t deliver enough information to permit a reader to comprehend what is going on?and without an informed grasp of the background, the fliers’ content, and possibly other relevant facts, such as previous statements by others?all of which go largely unreported even in the links?it’s hard to judge whether or not FIRE or EV are using tendentious framing to characterize events, or not. This looks like a story which would be better to report fully before being exampled in the abstract.

    1. “”Expressive conduct,” doesn’t deliver enough information to permit a reader to comprehend what is going on”

      That’s where you’re wrong. Well, one of the many places.

      Not that the post is lacking in information about the fliers either. It provides a convenient link to them, and helpfully explains that “[t]he flyers criticized the university’s response to recent incidents of perceived racist expression on campus.” That should be enough for even people who need their information spoon fed to them to understand what’s going on.

      1. jph12, never surprised to hear you know what’s going on. That’s a sign of an outlier-strength confirmation bias at work.

        Another warning sign is disdain for people who “need their information spoon fed to them to understand what’s going on.” Insisting on spoon feeding information is how good editors assure accurate journalism from their writers. Noticing when spoon feeding hasn’t been done is a protective habit an editor can cultivate with benefit?but not just an editor. A news consumer who suspends skepticism before his source delivers spoon-fed clarity will generally end up filling in gaps out of his own head, and thus going around certain that events everywhere align favorably with his own pre-conceptions and preferences.

        Come to think of it, as your comment above shows, you seem comfortable about that yourself. That might account for your hostility to someone who had the temerity to ask for more information.

        1. Ah yes, you merely had the temerity to ask for more information. What a tendentious framing of your comments here.

  5. Holy crap, those fliers though.

    I’m usually on the side of the administration being dunderheads, but I easily see those making me feel unwelcome if I were a black student.

    I know the legal standards for college are contradictory, but to me this passes Tinker‘s threat of disruption of the learning environment.

    1. Sarcastro, was it clear to you that the fliers were distributed with racist intent. When I looked at the links, I couldn’t tell whether or not the racist content was there to example stuff the administration was failing to respond to, or was meant to give racial offense in the first instance. Did I miss something?

      1. Looks like they drew some false flag cartoons on a white board and then put them on a flyer.

      2. Yes, they were critiques of specific things that happened on campus: the cartoon was on campus and received a buzz but the administration didn’t condemn it harshly enough for them and the email and various quotes should be obvious. Overall the student newspaper felt that the campus hadn’t taken these seriously enough.

        1. gormadoc, when I followed the links, that narrative came through. It seemed plausible. What I didn’t see is evidence to show it’s what actually happened.

          I may have missed something. You may have too. Please note in your own comment the several uses of passive voice (“cartoon was on campus”; “received buzz”) and speculation (“condemn it harshly enough for them [antecedent?]”; “and the email and various quotes should be obvious.”) Can you at least show sources to supply subjects for the passive constructions, and justifications for the speculations. It would make me more comfortable that what seems plausible is what actually happened.

          1. Read this and this. It is apparent that the free speech was using examples of prior racist events to highlight the University’s failure to sufficiently address the racist events. This is not about racists posting things on campus and being silenced; it’s about police threatening anti-racists for using racist iconography to make a point. That’s what I got from the article above without googling anything, although the links should put things in context.

    2. Tinker requires “…something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.”

      Merely making someone feel unwelcome can’t possibly qualify. I mean, how would they send out rejection letters.

      1. And I guess mattress girl’s protest would have easily passed the Tinker test. I mean, talk about making someone fell unwelcome!

    3. Students complaining about the lack of response to racism on campus makes black students feel unwelcome? I’m thoroughly confused.

      1. I suspect Sarcastro thinks that the image in the flier was from the group that created it, and not the subject of the complaint the group had.

        1. Yep. Glad to see that’s not the issue!

        2. Both sarcastros and Arthur think FIRE only defendants conservative speech and have made that argument in the past. If there is a way to criticize conservatives, sarcastro takes it. Facts be damned.

      2. if “making students feel unwelcome” constitutes a disruption for tinker purposes, repeating comments that make students feel unwelcome, even in the context of complaining about them, would count, no?

    4. Does Tinker apply in higher education? I thought there was caselaw on point for the fact that it doesn’t.

  6. A reasonable person (like a federal judge) might not expect the police to know the law. Perhaps the students should recognize who is protecting them, and check their own privilege.

  7. The flyers criticized the university’s response to recent incidents of perceived racist expression on campus.

    Are the images in the link the flyers? If so, that’s an awfully generous description.

    1. What are you looking at? The 14 pages together are pretty clearly a complaint about the lack of action on racism/racial insensitivity. I could see how a person seeing one of the more ambiguous ones by itself could draw the opposite conclusion, but not after looking at all of them together.

      1. I suppose.

        It could be clearer. But hey, I’m an old guy.

        1. I suppose this is causing whiplash for the bernards of the group because this is FIRE supporting a presumably left-wing group, and bernard, despite his tossing around racist slurs himself, thinks that only the other can be racist.

          1. Show me where I “toss around racist slurs” or STFU.

  8. Eugene,
    This is kind of old. The University issued a statement on April 9th trying to walk back their conduct and the conduct of law enforcement. Saying no one was charged with a crime or student conduct violation and that no one would be.

    1. FIRE seems to have picked up on it a couple weeks afterwards and only recently published this new stuff. Makes sense that BU didn’t respond if FIRE contacted them a week after BU stopped being turds.

      1. Really? Wouldn’t that be the easiest time to respond with “Yes, and we’ve already done what you’ve asked in the letter but thanks for bringing it to our attention!”?

  9. I think this doesn’t really have that much to do with the students. This is a political power play by university bureaucrats.

  10. Can you please write about the ridiculous decision that Trump’s twitter is a public forum?

    1. Can’t wait for newspapers to be forced to print all responses to a presidential column.

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