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Volokh Conspiracy

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 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.