Ongoing debate on First Amendment impact of university policies


Emily Blobaum/Iowa State Daily

A recent lawsuit filed against Iowa State University by Speech First challenges the chalking ban, prohibition on student emails related to political campaigns and elections and the Campus Climate Reporting System.

Sage Smith

In the midst of caucus season, there has been ongoing debate about how Iowa State policies affect students’ First Amendment rights. A recent lawsuit filed against Iowa State University by Speech First challenges these policies.

The lawsuit challenging the policies, Speech First v. Wintersteen et. al, included: chalking ban, prohibition on student emails related to political campaigns and elections and the Campus Climate Reporting System.

Nicole Neily, president and founder of Speech First, a nonprofit membership association, told the Daily on Jan. 2 they filed the case on behalf of some of their student members at the university. Neily said the case challenges the three specific policies they believe infringe upon students’ First Amendment rights.

Frank LoMonte, director of Brechner Center for Freedom of Information, is a professor of media law at the University of Florida.

LoMonte said public universities are governed by First Amendment standards, and there are lines they can’t cross, so it becomes a line-drawing question of where does the individual student’s autonomy begin and the authority of the university begin, which isn’t 100 percent clear.

There are red flags when reading about the regulations being challenged at Iowa State, LoMonte said. One of those red flags, he said, jumped out at him right off the bat: the chalking ban.

“If it is true that the university has a policy saying only registered student organizations can write approved messages on sidewalks with chalk, that seems like it raises First Amendment problems because of the possibility of content based discrimination,” LoMonte said. “The one thing that the court has been very clear about is that public agency, including a big university, can’t get into the business of picking and choosing which messages it likes and doesn’t like.”

LoMonte said a total ban on all chalking would probably be easier to defend. It’s when the university starts to get selective where they run into problems with the First Amendment. He said with a total ban, the university could say it’s an expense to clean the sidewalks or another reason that has nothing to do with what the students are writing.

The aesthetics are one of the focus points of the new chalking policy, President Wendy Wintersteen and Michael Norton, university counsel, said.

The proposed chalking policy from the fall 2019 semester is now being reviewed and a permanent policy, similar to the University of Iowa’s policy, may be put in place.

Wintersteen said as they looked at the fall policy, the excessive chalking occurring across campus took away from Iowa State’s beautiful environment and became kind of visual graffiti.

Norton said factors looked into when considering the policy included the many views Iowa State has on the competing values of free speech and the aesthetic of campus.

“I think the goal of the policy is really to respect the beautiful campus that we have here at Iowa State,” Wintersteen said. “[…] For us, it was a question of aesthetics and how we wanted to be viewed and looked at in terms of overall beauty.”

The chalking policy was met with backlash from students in the fall, and the permanent policy could see a similar response.

“Most of campus is open for chalking, and of course all of campus, all of the public areas are open for expression; it’s just what’s called a time, place and manner restriction on how that expression is done,” Norton said. “So there really is no limitation on freedom of expression in all of these public areas of campus. People can go protest or demonstrate or gather to share ideas or debate, so all of those areas are still open, but what’s not open is just the defacement that occurs through chalking in these certain areas.”

Previously, the policy stated only registered student organizations were allowed to chalk on campus. The new proposed policy would open chalking up for everyone, but the policy will still come with restrictions.

While not involved with the case, Julie Roosa, adjunct assistant professor in the Greenlee School of Journalism and Communication, is Iowa State’s First Amendment specialist.

Roosa’s position is split between First Amendment outreach and education and teaching courses including mass communication law and a First Amendment seminar.

The First Amendment is critical when it comes to conversations about politics, Roosa said, as it gives people a chance to share and debate ideas.

The lawsuit filed by Speech First brought up the fact these policies have been enforced so close to caucus time for Iowa.

“With the caucuses coming up, we want to be careful not to close off any of those avenues to receive information, on the one hand,” Roosa said. “On the other hand, there are competing interests that bump up against the First Amendment, so it’s not so simple as to say anything goes. There are some aspects of speech that aren’t protected by the First Amendment.”

Roosa said she would encourage people to look at the wording of the policies and look at them against the 45 words of the First Amendment and how they’ve been interpreted to see where the policies fit.

“I would just say any policy that impacts expression has to be handled carefully, and from my perspective, censorship is always dangerous, but you’ll get other perspectives too,” Roosa said. “I would also point people to our First Amendment Days and getting involved in exercising those freedoms because they can be really easy to take for granted and when we take our freedoms for granted, they can be easily abused or we might even lose them.”

Roosa said she thinks the First Amendment Days show the commitment the university has to the importance of free expression and provides a place to talk about the very issues of the policies.

“People may have a very time sensitive need to want to be heard, and if you string them out long enough, then the speech loses its purpose,” LoMonte said. “The courts have been very clear that political speech gets extra-strength protection, and one of the reasons is because its almost always time sensitive.”

In regards to the email policy, Acceptable Use of Information Technology Resources, there have also been revisions made.

“The policy is being changed to reflect what really has been true about the policy all along, which is that student emails, student political emails, have never been restricted in any way,” Norton said. “So that policy is being refined a little bit as well, and you’ll see that on the policy website also.”

Norton said he wants to make sure students know they’re free to use the email system to advance the political process, speak their beliefs about political issues and support political candidates.

At this time, Norton said they don’t really have the ability to comment on the Speech First v. Wintersteen et. al case pending litigation.

“We don’t really have the ability to comment on pending litigation, but President Wintersteen’s statement is a brief statement about those issues, and all of it is still applicable today,” Norton said.