Free Speech 101
In late February, a large display on the University of Texas at Austin campus visually compared abortion in America with the Holocaust, the Cambodian killing fields, lynchings in the South, and other horrors. About 150 pro-choice students and a few professors gathered spontaneously at the exhibit in front of the Gregory Gym to demonstrate against the message of the display, which featured 16-foot high, full-color photos of bloody, late-term abortions. Professor Mia Carter, Interim Chair of the Asian-American Studies program, held up a bullhorn to amplify her colleague’s speech, “and that’s when all Hell broke loose,” she says. University police rushed through the crowd to yank the bullhorn away from Carter, clocking her soundly on the forehead with the device and leaving her with an abrasion on her neck. Her violation? No amplified sound is allowed on that part of campus, contentious fetus and Holocaust comparisons notwithstanding. In the aftermath, Carter and several colleagues, joined by the UT Student Assembly, have called on the University administration to explain the incident and to clarify UT’s notoriously nebulous policy on free speech on campus.
As a state institution, UT is bound by the First Amendment to allow a wide variety of political speech and demonstrations. But as an institution of higher learning, it has been given legal latitude to determine the “time, place and manner” of that speech to keep it from interfering with its primary business. Carter is angry at the administration for allowing the anti-choice student organization, called Justice for All, to set up such a charged display with “absolutely no warning.” She says the University would have done better to allow other groups time to put up exhibits of their own on the Gregory Gym space, which is rarely used for political demonstrations in any case. Ordinarily, such large demonstrations take place in the “free speech zone” located on the West Mall, between the Tower and Guadalupe Street. But that’s just part of the problem, critics say, with free speech on the UT campus, which has always come with a number of confusing caveats. No outside groups (i.e. non-student-run) are allowed to hand out literature or post signs. Student groups’ displays and literature can’t contain contact information for outside organizations. Amplified sound is allowed only in certain areas between certain times. Exhibit space is granted only through a permit process. And inconsistency is the rule.
If UT’s free speech policy seems foggy now, its history approaches pea soup. Back in 1967, UT administrators–especially the notoriously heavy-handed Frank Erwin–exercised power more casually, according to Alice Embree, formerly of the Students for a Democratic Society, “[Once] when we were reacting to a major escalation of the [Vietnam] war and just held an outdoor meeting… we didn’t have loudspeakers or anything, we just spoke. Frank Erwin and his aide came out and was like, ‘That name, that name and that name,’ and six of us got notices the next week of being put on disciplinary probation.”
“We used to have huge discussions where people would just stand on the West Mall, like hundreds of people talking about the war in Vietnam or black-faced minstrel shows or whatever issue,” recalls Embree. But things have changed. Not only are huge student rallies and demonstrations less common in traditional free speech areas like the West Mall and the Texas Union, they now have logistical problems. In the early 1970s, both areas were drastically re-designed with crowd control in mind. The student union building now has much less open space, and the West Mall is now dominated by enormous planters, which stretch the entire length of the Mall, leaving relatively narrow walkways on each side. Will Harrell, director of the Texas American Civil Liberties Union, says that was part of Erwin’s design. “They couldn’t legally prohibit public gatherings on the West Mall and they certainly couldn’t do so politically. So they created those planters to limit the space availability because literally, in the Sixties, that place would be packed and students would camp out and it was quite a scene.”
During the anti-apartheid movement of the late 1980s, Harrell and other student activists secured more solid student speech rights. “We were able to put in place a process by which people could essentially ask for a permit. There is still prior restraint, but a permissible one because it wasn’t arbitrary. It wasn’t a flat-out ban on assembly. You could petition for recognition and they could then review your petition and make a determination about what would be a reasonable time, place, or manner restriction. And that’s permissible under the First Amendment. However, the appropriateness standard is what needs to be defined.”
That appropriateness standard is the gray area UT is accused of wielding arbitrarily. According to Jeremy Alder, founder of the anti-abortion student group, the anti-abortion display was denied permission to set up on the large concrete Main Mall, directly in front of the Tower. Cheryl Wood from the Campus Center for Community Involvement says, “The space they requested was inappropriate for student exhibits, and we don’t put student exhibits on the Main Mall between 8 and 5 Monday through Friday.” The group’s appeal was denied, so Wood’s office offered them the space in front of the gym. But a recent event sponsored by UT for Fortune Magazine’s Fortune 500 conference had better luck in the Main Mall. “The university can pick and choose how many days a year that’s used,” explains Wood. And, apparently, by whom.
Justice For All’s negotiation of the permit process points up another flaw in campus policy. Alder says his group was asked to cover up their national affiliate’s contact information and other phone numbers and web addresses. The International Socialists’ Organization, which set up a table next to the exhibit, was only prevented from handing out literature with the national group’s contact information after Alder’s group complained. And then there is Microsoft, which, like other companies, maintains a display with contact information for potential future employees prominently displayed.
Pro-choice demonstrators, meanwhile, also have the feeling the university is trying to get in their way. The day after Mia Carter’s head met a bullhorn, Journalism Professor Robert Jensen (a contributor to these pages) had his bullhorn confiscated by UT police. The proximity of classrooms is cited by UT as the reason for the ban on amplified sound, but since his bullhorn didn’t have batteries, Jensen calls the administration’s position “a ban on consumer electronic devices.”