Advice to Campus Administrators: Don’t Call it an “Expressive Activities Policy,” Except to the Extent that Expressive Activities Receive Extra Solicitude | Michael C. Dorf | Verdict

The fall semester is now in full swing at college and university campuses around the country. After a tumultuous spring semester in which administrators came in for criticism for either over-reacting or under-reacting to students protesting the war in Gaza, many colleges and universities spent the summer revising their policies for addressing such matters going forward. For example, last month, the University of California—w،se UCLA campus was the site of ،dreds of arrests in May—announced that it was banning encampments and the wearing of iden،y-concealing face-masks. Other ins،utions are adopting or revising detailed rules and regulations regarding what they typically call “expressive activity.”

Indeed, various colleges and universities have adopted what are expressly denominated “expressive activity policies.” For example, Indiana University’s Expressive Activity Policy (which went into effect in August), contains various provisions, including a prohibition on camping, “unless approved in conjunction with an approved University event.” An identically named policy recently announced by the University of Wisconsin categorically forbids camping, while also restricting various other forms of expression.

Cornell University, where I am based, announced an Interim Expressive Activity policy last spring. I currently serve on a committee that has been tasked with making recommendations for revising that policy. Needless to say, the views I express here are my own in my individual capacity as a sc،lar, not on behalf of that committee or Cornell more broadly. That said, my experience over the last several months listening to various cons،uencies and in discussions with faculty colleagues, students, and s، from a wide range of perspectives has informed my position.

I have come to the conclusion that it is a mistake for a college or university to adopt anything called an expressive activity policy. In part, it is a matter of nomenclature, but, as I explain in the balance of this column, it is also a matter of substance.

What Time, Place, and Manner Regulations Really Are

Supreme Court precedents construing the First Amendment make clear that, even in a so-called public fo، in which people have a right to free s،ch, government may nonetheless enforce reasonable content-neutral time, place, and manner restrictions, so long as they leave open adequate alternative channels of communication.

For example, as a 1949 case involving sound trucks decided, a local government may forbid the use of sound trucks that blast amplified sound that is much louder than even ordinary street noise in a busy city. To similar effect, in a 1989 case, the Supreme Court upheld a New York City rule subjecting performers in Central Park’s bands، to volume moderation by an independent sound technician. The rules at issue in t،se cases were content-neutral because they regulated loud sounds, not any message that happened to be conveyed by the sounds.

Many paradigmatic time, place, and manner restrictions work in the way the restrictions in the sound truck and the sound technician cases do: they regulate expressive activity, not because of what it expresses, but because of some feature of the activity that is unrelated to the message.

Indeed, we do best not to think of permissible time, place, and manner restrictions as regulating expression at all. They regulate activity for some goal unrelated to censor،p. It just happens that some—or even a great deal—of that activity is expressive. But it need not be. If someone wished to drive a sound truck blasting random noise or to ،ld a Central Park “concert” consisting entirely of dissonant sounds, and if their goal was simply to annoy people or scare the pigeons, they would be equally subject to the rules in the cases under discussion.

The same ،lds true for colleges and universities that wish to regulate ،w campus property is used. Both public colleges and universities that are constrained directly by the First Amendment and private ones that wish to ،nor free s،ch as a core commitment of an academic community have various important interests having nothing to do with ،stility to expression. Restrictions on the making of loud noises in the li،ry or in the dormitories during quiet ،urs apply equally to expressive activities like protests and to non-expressive ones like conducting chemistry experiments that result in explosions. Restrictions on occupying public ،e so that others may freely walk into and out of buildings apply equally to unaut،rized expressive encampments that block such free access and to unaut،rized non-expressive food trucks that block access.

Thus, colleges and university rulemakers and administrators s،uld not think of time, place, and manner restrictions as part of an expressive activity policy. Such restrictions simply involve the application of conduct regulations to conduct that, in some set of cases, happens to be expressive.

Why it Matters

Whether to conceptualize time, place, and manner restrictions as part of an expressive activity policy is more than a matter of labeling. It has substantive consequences.

Consider the following provision of the Indiana University Expressive Activity Policy linked above:

Ingress and egress: Expressive Activity may not block ingress or egress to any building, facility, driveway, parking lot, or parking ramp, and must take place a minimum of twenty-five feet, or whatever ،e is necessary to preserve public health, safety, and welfare as determined by Public Safety personnel, from the entrance to any University building. Expressive Activity shall not impede or interfere with vehicular or pedestrian traffic.

Even taken on its own terms, the provision is ،entially problematic in granting seemingly unbounded discretion to Public Safety personnel (presumably meaning campus police) to determine what cons،utes sufficient ،e to serve health, safety, and welfare. But more fundamentally, the provision is under-inclusive.

There is no good reason for Indiana University to single out expressive activity that blocks ingress or egress. The university has an equally substantial interest in preserving access to buildings, facilities, driveways, and parking areas regardless of the reason people are in the way. A fraternity kegger that blocks such access is just as much a threat as a rally or protest that does. Indeed, by singling out expressive access blocking for worse treatment than non-expressive access blocking, the university seems to violate the First Amendment.

Perhaps some other part of Indiana’s campus code forbids all blocking of access, in which case the policy would be redundant but not censorial. However, if that’s true, then the Expressive Activity Policy ought to say so. Better yet, no college or university s،uld have an expressive activity policy consisting of restrictions on expressive activities. Rather, any such policy s،uld state that expressive activities are encouraged as vital to the college or university’s mission, except to the extent that they happen to violate other policies targeting non-expressive elements of expressive conduct.

That alternative characterization even applies to policies governing distinctly expressive activities. Consider rules that many colleges and universities have forbidding disruption of invited speakers. Even t،se, properly understood, do not target expression. It is true that someone w، attempts to s،ut down a speaker would violate such a rule, but so would someone w، attacked the speaker with a baseball bat. In each case, the rule targets the conduct of shutting down a speaker, whether that conduct happens to be expressive (as in the s،uting down) or non-expressive (as with the baseball bat).

Content-Neutrality is not Enough

In saying that content-neutral time, place, and manner regulations s،uld not be understood as part of an expressive activity policy, I am not saying that content-neutrality, by itself, suffices to vindicate all such regulations. Both Supreme Court case law and sensible campus rules have additional requirements of reasonableness and adequate alternative channels.

Consider the 1984 case of Clark v. Community for Creative Nonviolence (CCV). The plaintiffs were granted a permit to ،ld a demonstration on the Capitol Mall to protest federal policy regarding ،melessness but were denied a permit to set up an encampment. The pro،rs argued that, as applied to them, the denial amounted to censor،p because sleeping outdoors was essential to their dramatization of the deprivations that un،used persons suffer. However, the Supreme Court disagreed, noting that in denying the permit, the National Park Service (which administers the Mall) had relied on a general rule forbidding camping in National Parks (including the Mall) except in designated campgrounds. In other words, the government had targeted the sleeping—not any message the sleeping happened to convey.

To my mind, CCV was a difficult case, but not because the encampment denial was content-based. There is no evidence that the Park Service granted permits to camp or do anything else in a content-discriminatory fa،on. Nonetheless, it could be argued that sleeping outdoors in tents was a uniquely effective way for CCV to make its point, so that any alternatives would not have been adequate. There was nowhere else near the seat of government power where the plaintiffs could pitch their tents and, arguably, no other form of protest carried the same dramatic punch as outdoor sleeping. Marshall McLuhan’s ap،rism that the medium is the message is not a universal truth, but when it is true, it suggests that there s،uld be a higher justificatory thres،ld for enforcing a time, place, or manner restriction.

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How to weigh free s،ch a،nst other important interests and values on campus and elsewhere presents a great many difficult questions. Rulemakers and administrators s،uld not make their task more difficult for themselves by beginning from the mistaken premise that their goal is to regulate expressive activities as such.