Free Speech in an Open Society by Rodney A. Smolla

Author:Rodney A. Smolla [Smolla, Rodney A.]
Language: eng
Format: epub
ISBN: 978-0-307-77303-6
Publisher: Knopf Doubleday Publishing Group
Published: 2011-01-12T00:00:00+00:00

PUBLIC UNIVERSITIES

How should a state university campus be classified? The soundest view is to treat the campus not as one unified forum, but as subdivided into multiple forums, in which differing free speech standards apply. On every state university campus, there are places that should be considered “traditional” public forums. This is the place on the campus that is the functional equivalent in campus life of the Boston Common or the Washington Mall, or the streets and sidewalks in front of the seat of government. The geographies of campuses differ—at some universities, this traditional forum may be the open campus green or plaza, at others it may be the entrance to the student union or the main classroom building. But every state campus, like every city, should be understood to have at least one location permanently dedicated to wide-open discourse, a First Amendment “free-fire zone” in which the principles of free speech in the open marketplace apply with undiminished force.

In addition, most state universities should be treated as having turned large parts of the campus into “designated” public forums. The Supreme Court’s most significant foray into this issue came in its 1981 decision in Widmar v. Vincent,154 involving the University of Missouri at Kansas City. The university’s policy was to encourage the activities of student organizations, and it officially recognized over one hundred student groups. The university regularly provided facilities for the meetings of registered organizations, and students paid an activity fee to help defray the costs to the university. From 1973 until 1977, a registered religious group named Cornerstone, an organization of evangelical Christian students from various denominational backgrounds, had regularly sought and received permission to conduct its meetings in university facilities. In 1977, however, the university informed the group that it could no longer meet in the university buildings. The exclusion was based on a regulation adopted in 1972 by the university forbidding the use of university facilities “for purposes of religious worship or religious teaching.”155 The university defended its regulation on the grounds that the prohibition was necessary to avoid a violation of the Establishment Clause of the First Amendment. The Supreme Court held the Missouri restriction unconstitutional. Because the Court was convinced that permitting a student religious group to use the university’s facilities on the same terms as other student groups could not be construed as an implicit endorsement of the religious group’s message, the Establishment Clause would not be violated by letting the religious group in. The university had designated its facilities as open forums, the Court held, and therefore could not discriminate against religious speech. “The Constitution forbids a State to enforce certain exclusions from a forum generally open to the public,” the Court stated, “even if it was not required to create the forum in the first place.”156

What does Widmar really mean? Widmar might be understood for the proposition that by virtue of the large quantity and diverse quality of speech that state universities customarily permit on campus, they are in all respects “designated” open public forums.

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