Guiding Principles // Free Expression at Mizzou

These guiding principles provide advice to offices and officials responsible for implementing the Policy on Use of University Facilities and Grounds and other policies relating to free expression at Mizzou, and for evaluating proposed or actual behaviors that occur in connection with events or activities within the scope of these policies.

It also is intended to assist members of the University community – students; faculty; staff – in understanding legal principles relevant to the exercise of the rights of free expression, free speech, assembly, and protest on the campus of the University of Missouri.

This guidance does not constitute, in and of itself, rules or regulations of the University.

The law governing freedom of expression is complex. The types of questions that arise under the First Amendment and related state constitutional and statutory provisions are virtually infinite. Thus, no single reference guide can hope to answer all questions that will arise in the future with respect to the rights to free speech, expression, and assembly and the limits that can permissibly be imposed by government on those rights.

Yet there is value in describing some of the guideposts that provide reference points for answering questions that will arise under the Policy on Use of University Facilities and Grounds.

As such, these guiding principles do not have the force of official policy but it does provide direction for those who desire a deeper understanding of the values and rationales of the Policy. It also provides guidance for those who are responsible for implementing Mizzou’s free expression policies and evaluating proposed or actual behaviors that occur in connection with events or activities within their scope.

The guidance is set forth as a series of principles. These principles appear in no particular order or priority, but related ideas are grouped together as subpoints under the heading of a particular principle.

Right to dissent

The right to dissent and protest complements the right to speak, but circumstances exist where these rights conflict.

The University has a responsibility to ensure that speakers can be heard along with a corollary responsibility not to chill counter-speech, dissent, and protest in the interest of preventing serious disruption. (Most protest activities are meant to disturb and are disruptive to some extent. The adjective “serious” conveys that the conduct in question rises to a level that it substantially and materially interferes the free speech rights of others.)

The University will be mindful of steps it can take to protect both speakers and those who wish to engage in speech, dissent, or protest opposed to such speakers:

To prevent serious disruption when it is anticipated, an organization hosting an open meeting can work closely with University officials to devise the time, place, and arrangements for admitting the audience.
When efforts to impede or prevent dissent or protest themselves rise to a seriously disruptive level, the University will seek to identify those who commit such acts and to take appropriate actions as set forth in University rules and regulations.
When serious disruption occurs, the University should seek to identify disrupters and to take appropriate action as set forth in University rules and regulations.
Where serious disruption is anticipated, the University’s goal is to make effective arrangements to protect the speaker and the right of the audience to hear the speech.
When protected dissent and protest are substantially impeded or inappropriately prevented, the University’s goal is to create and enforce effective arrangements to protect the right to dissent and protest.
University officials and others can meet in advance with protesting groups, making clear the University’s obligations to free expression and indicating forms of dissent that do not interfere with speech.

Speaker’s right to communicate

A speaker is entitled to communicate the speaker’s message to an audience during the time allotted for the message, and the audience is entitled to hear the message and see the speaker during that time. A dissenter or protester must not substantially interfere with a speaker’s ability to communicate or with an audience’s ability to see and hear the speaker.

In a closed meeting, dissent or protest by non-attendees is typically limited to activity outside the meeting that does not impede access to the meeting or substantially interfere with the communications inside.

A closed meeting is generally understood to be a meeting at which the sponsoring organization limits the attendance to the membership in the organization or to invited or designated individuals or groups (including members of the press), and from which members of the University community and general public not related to the sponsoring organization or to the meeting are excluded. To the extent that a closed meeting is advertised to those who are not invited to attend, there should be clear disclosure that the meeting is closed.

When a meeting is open, limitations on dissent or protest generally depend on whether the dissent or protest occurs inside or outside the meeting and on whether the dissent or protest occurs before, during, or after the meeting.

A meeting should be considered open even though the sponsoring organization limits the audience to members of the University community or to portions thereof (e.g., graduate students) unless the meeting has the characteristics of the closed meeting described above.
When an open meeting is intended, the sponsoring organization typically provides timely notice that the meeting is open and typically makes at least a majority of the available seats available to the University community, a portion thereof, or the general public.

Picketing

Picketing in an orderly way or distributing literature outside a meeting is generally acceptable unless it impedes access to the meeting. Distributing literature inside an open meeting is generally acceptable before the meeting is called to order and after the meeting is adjourned.

Signs & symbols

Displaying a sign, wearing significant or symbolic clothing, gesturing, standing, kneeling, or otherwise protesting noiselessly is generally acceptable unless the protest interferes with the audience’s view or prevents the audience from paying attention to the speaker. Use of signs, prolonged standing, or other activity likely to block the view of anyone in the audience should be confined to the back of the room.

Vocal response

Responding vocally to a speaker in a spontaneous and temporary manner is generally acceptable, especially if reaction against a speaker is similar in kind and degree to reaction in favor of the speaker.

Asking critical questions of the speaker during an event formatted to include a question-and-answer session is acceptable.
Chanting, persistent heckling, making other sustained or repeated noise in a manner that makes it difficult or impossible to hear what the speaker is saying, or substantially interfering with the speaker’s communication with the audience is not acceptable, either inside or outside the meeting.

Common understanding

Standards in policies that are anchored in language such as “disrupt,” “interfere,” “obstruct,” or “prevent” do not have mathematical precision but, like many standards in the law, are to be given the “common understanding” that inheres in the “particular context” in which the words are used.

Because particular situations will routinely present difficult and unavoidable enforcement judgments, it is important to remind those who are charged with implementing this Policy that their judgments must not be influenced by the viewpoint of those claiming disruption, etc., or of those alleging disruption, etc. The standards cannot be implemented in a manner that prohibits speech that is disturbing because of its content, merely annoying, outrageous to some listeners, or disruptive in some respect that falls short of impairing the ordinary and normal functions of the university.
Rather, the time, place, and manner restrictions in this Policy on interfering or disruptive behaviors describe circumstances in which there are actual or imminent, and substantially disruptive or materially interfering behaviors that impede the ordinary and normal operations of the University.

Courts have stated in many free expression cases that words in regulations, ordinances, and statutes are to be given a “common understanding” and are to be interpreted in the “particular context” in which the words are used. Thus, for example, whether a protest or demonstration interferes with traffic depends on the relationship between the volume of traffic and the size of the passageway left open. Occasional heckling in a speaker’s pauses may not disrupt a speech, but persistent heckling that prevents listeners from hearing the speech does disrupt the speech. A vocal protest or demonstration involving sustained chanting and heckling by members of an audience is likely to constitute material and substantial interference at a concert or lecture, but identical conduct is unlikely to be disruptive if undertaken by attendees at a sporting event (e.g., a football game) where cheering and noise is the norm. Contextual analysis and relevance of common understanding was evident in a Supreme Court of the United States (“SCOTUS”) case in which a city noise ordinance was challenged. The ordinance provided that “[n]o person . . . shall willfully make or assist in the making of any noise or diversion which disturbs or tends to disturb the peace or good order of such school session or class thereof.” The Court rejected a protester’s claim that the ordinance was unconstitutionally vague, holding that the ordinance was “clear [in] what the [rule] as a whole prohibits” and gave “fair notice to those to whom (it) is directed.” Grayned v. City of Rockford, 408 U.S. 104, 110-12 (1972) (italics added).

Determining the precise boundaries between permissible and impermissible expression and speech is often difficult, but imprecision of language is a problem commonly confronted in the law. In fact, SCOTUS has explicitly acknowledged that drawing boundaries in this area is difficult. In Snyder v. Phelps, 562 U.S. 443 (2011), Chief Justice Roberts, in referring to an issue involving public employee speech, stated: “We noted a short time ago, in considering whether public employee speech addressed a matter of public concern, that ‘the boundaries of the public concern test are not well defined.’ . . . Although that remains true today, we have articulated some guiding principles, principles that accord broad protection to speech to ensure that courts themselves do not become inadvertent censors.” 562 U.S. at 452.

With respect to standards like those used in this policy, SCOTUS has provided some guiding principles. Justice Marshall’s opinion for the Court in Grayned explains how both citizens and those charged with implementing such standards should read, interpret, and understand them:

Condemned to the use of words, we can never expect mathematical certainty from our language. The words of the Rockford ordinance are marked by “flexibility and reasonable breadth, rather than meticulous specificity”… but we think it is clear what the ordinance as a whole prohibits. … [W]e think it proper to conclude that the Supreme Court of Illinois would interpret the Rockford ordinance to prohibit only actual or imminent interference with the “peace or good order” of the school.

Although the prohibited quantum of disturbance is not specified in the ordinance, it is apparent from the statute’s announced purpose that the measure is whether normal school activity has been or is about to be disrupted. … [This is] a statute written specifically for the school context, where the prohibited disturbances are easily measured by their impact on the normal activities of the school. Given this “particular context,” the ordinance gives “fair notice to those to whom (it) is directed. … We think that … the ordinance here clearly “delineates its reach in words of common understanding.” [408 U.S. at 110-12.]

In another part of the opinion, Justice Marshall contrasted the Rockford ordinance with a Cincinnati ordinance that declared “annoying” behavior on sidewalks unlawful. The lack of context in the Cincinnati case rendered the ordinance impermissibly vague. In the Rockford case, the ordinance’s prohibition on behaviors that “disturb or tend to disturb” a “school session or class,” unlike “annoying” behaviors on sidewalks, required a “demonstrated interference with school activities.” 408 U.S. at 114 (emphasis added). Justice Marshall elaborated as follows:

The nature of a place, “the pattern of its normal activities, dictate the kinds of regulations of time, place, and manner that are reasonable. Although a silent vigil may not unduly interfere with a public library, … making a speech in the reading room almost certainly would. That same speech should be perfectly appropriate in a park. The crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time. [408 U.S. at 116; emphasis added.]

In making this determination, a relevant guiding principle is that the standard is to be interpreted and applied narrowly to the end of maximizing speech and expression while preserving the ability of the university to fulfill its state-mandated responsibilities without substantial disruption of or material interference in its normal academic and business activities. Justice Marshall explained how this calculus works in his Grayned opinion. Referring to an earlier case involving secondary schools (Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)), he stated that “we nowhere suggested that students, teachers, or anyone else has an absolute constitutional right” of free expression in a school’s buildings and on its grounds, and that “[e]xpressive activity could certainly be restricted, but only if the forbidden conduct ‘materially disrupts classwork or involves substantial disorder or invasion of the rights of others.’ … Rockford punishes only conduct which disrupts or is about to disrupt normal school activities. That decision is made, as it should be, on an individualized basis, given the particular fact situation.” [408 U.S. at 117-19; emphasis added.]

True threat

Using or making a genuine, “true threat” to use force or violence is never permitted. The Supreme Court of the United States (“SCOTUS”) has ruled on a number of occasions that the First Amendment allows government to prohibit the making of a “true threat,” which the Court has defined as a statement “where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals” (quoting Virginia v. Black, 538 U.S. 343, 359 (2003)). Thus, behaviors such as defacing a sign, assaulting or threatening to assault a speaker, or assaulting or threatening to assault a member of the audience are never appropriate. These kinds of behaviors are serious matters and may violate state or federal law, or both.

Respecting the right to dissent

Audiences, event organizers, and speakers have a responsibility to respect the right to dissent and protest. An individual who substantially interferes with lawful dissent or protest is engaging in behavior as unacceptable as a dissenter or protester who violates the rights of a speaker or an audience.

Security of attendees

The security of speakers, members of an audience, event organizers, and bystanders is a legitimate and important concern of the University of Missouri. Senior University officials will determine, either on their own initiative or after hearing from campus organizations, groups, or individuals, whether the protection of free speech and expression at an open meeting requires measures to provide security.

Upon making this determination that security measures are required, University officials, acting in consultation with the University of Missouri Police Department and other law enforcement agencies as appropriate, may determine the nature and extent of security measures required and should ensure their implementation in a way that does not unfairly discriminate against nor intimidate any participant. The University will fund these measures.
When a meeting is closed, the sponsoring organization will ordinarily be responsible for planning, obtaining, and funding its own security. MUPD will be available to consult with the sponsoring organization. Any provision for the use of force as a security measure must be planned with participation of MUPD.
Possible security measures may include, but are not limited to, (a) bags and other containers being subject to search by MUPD or other security officers; (b) bags and other containers being required to be put in a checkroom before entrance into an event; (c) coats or outerwear being required to be put in a checkroom before entrance into an event; (d) videotaping, audiotaping, and/or photographing of the event with prior notice to the audience.
Only MUPD or another official law enforcement agency, or member of such agency, may use force as a security measure.

Fliers & posters

Posting of fliers and posters on campus is generally limited to bulletin boards and kiosks. In campus buildings, the posting of fliers and posters is only allowed on bulletin boards or other spaces specifically designated for such purpose. See MU Business Policy and Procedure Manual (BPPM) 6:054 for more information.

The University will not discriminate or place content-based limitations on what may be posted in areas where posting is allowed, except that the University has the authority to restrict certain spaces and certain bulletin boards to posting of certain kinds of material. Thus, for example, a bulletin board can be reserved by an academic department for the posting of academic information and policies.

Chalking

Chalking on sidewalks or buildings is permitted on the campus subject to certain reasonable limits. See BPPM 6:056 for more information.

The University will not discriminate in favor of or against particular messages or particular content when enforcing the chalking regulation.

Outdoor vs. indoor spaces

Outdoor spaces on the University campus are both functionally and legally distinct from indoor spaces, and thus are subject to different regulations.

A legal distinction between outdoor space and indoor space is made by Missouri statutory law. See Mo. Rev. Stat. § 173.1550.1, which became effective on August 28, 2015.

Under the Missouri statute, the “outdoor areas of campuses of public institutions of higher education in this state shall be deemed traditional public forums. Public institutions of higher education may maintain and enforce reasonable time, place, and manner restrictions in service of a significant institutional interest only when such restrictions employ clear, published, content, and viewpoint-neutral criteria, and provide for ample alternative means of expression. Any such restrictions shall allow for members of the university community to spontaneously and contemporaneously assemble.”
Further, “[a]ny person who wishes to engage in noncommercial expressive activity on campus shall be permitted to do so freely, as long as the person’s conduct is not unlawful and does not materially and substantially disrupt the functioning of the institution subject to the requirements of subsection 2 of this section.”

Because of this statute, all outdoor areas on the University campus are designated “traditional public forums.” This phrase is a term of art articulated by SCOTUS in past cases, and it is used to help explain how the First Amendment is applied when disputes about the contours of free speech arise in public areas. Under a series of SCOTUS decisions, government entities can place reasonable “time, place, and manner” restrictions on speech in public spaces. The University, being a public institution, is the equivalent of “the government” for purposes of these decisions. A large number of cases decided by SCOTUS collectively describe the circumstances under which the government may impose time, place, and manner restrictions consistently with the requirements of the U.S. Constitution.

SCOTUS has defined “traditional public forums” as streets, sidewalks, and parks. Thus, streets, sidewalks, and parks on the campus – whether owned by the City of Columbia (as some are) or the University – are treated the same for purposes of free speech activities.

SCOTUS has ruled that government may require certain types of events in traditional public forums to have permits before proceeding. Examples include: marches and parades that do not stay on sidewalks, and other events that block traffic or close streets; large assemblies or rallies requiring the use of sound amplification; and assemblies or rallies in certain designated parks or plazas.

Government may require applications for permits to be filed a number of weeks in advance, but SCOTUS has held that the First Amendment prohibits an advance notice requirement being used to prevent protests in response to recent news events.
The permit application process must be content neutral; the permit cannot be denied because an event is controversial or will express unpopular views.
Denying a permit for reasons unrelated to traffic control, public health or safety considerations, or permissible content-ne utral time, place or manner restrictions may violate the First Amendment.

If marchers or protesters stay on sidewalks and obey traffic and pedestrian signals, their activity is constitutionally protected even without a permit. Marchers or protesters may be required to allow enough space on the sidewalk for normal pedestrian traffic and may not intentionally obstruct or detain other pedestrians. Also, marchers or protesters may not occupy sidewalks in ways that block entrances to buildings.

The distribution of leaflets and other literature by protesters is permitted on public sidewalks, and no permit is necessary to do so. Protesters may approach pedestrians with these materials but may not physically or maliciously detain them.

Picketing on public sidewalks is permissible and does not require a permit. Picketing must occur in a non-disruptive fashion so that pedestrians can pass by and entrances to buildings are not blocked.

Photography

Photography is allowed in traditional public forums or other public spaces. In other words, when a person is in a public space, the person has a right to photograph anything that is in plain view. Members of the press have this same right to the same extent (neither more nor less) as any other person. Police officers may not confiscate or demand to view a person’s photographs or video, or digital records thereof, without a warrant, and they may not delete a person’s photographs or video under any circumstances. Police officers may legitimately order citizens (whether a member of the public or a member of the press) to cease activities that are actually interfering with legitimate law enforcement operations.

Fees

The government may require a fee as a condition of larger groups exercising their free speech rights, such as application fees, security deposits for clean-up, clean-up fees, or charges for overtime security costs. Government may not charge higher fees for events that are controversial or where it is foreseeable that an audience or crowd may react to the speech in a hostile way.

Counter-demonstrators

Counter-demonstrators also have a right to dissent and protest. This includes a right to be present at a demonstration and to voice displeasure with demonstrators. Counter-demonstrators should not be allowed to physically disrupt the event they are protesting. University officials and MUPD are permitted to take steps to keep two or more antagonistic groups separated from each other, but such groups should be allowed to be within the general vicinity of each other if this can be accomplished without compromising the health or safety of participants or observers.

Access to public property

Traditional public forums are public property, and any member of the public has the right to enter into and upon public property. The press has the same right of access to public property as does the general public. In the absence of the issuance by the government (in this context, the University) of a permit that gives a person, organization, or group exclusive use of a defined area that is otherwise a traditional public forum for a designated period of time, a person, organization, or group cannot deny members of the public the right to enter into a traditional public forum.

Groups or organizations desiring to meet or assemble in University space or grounds for private discussions, events, or activities may reserve appropriate space under the Policy on Use of University and Grounds for a closed meeting.
Generally speaking, space that constitutes a traditional public forum is not the preferred location for the scheduling of a closed meeting. There are, however, occasions when such scheduling may appropriately occur for events and activities that are limited to the attendance of the sponsoring organization or group. Examples include a wedding ceremony on Traditions Plaza or an alumni event on Carnahan Quadrangle.
When private events and activities or closed meetings are scheduled in outdoor spaces, the rights of protest, dissent, and assembly on adjacent space in the traditional public forum continue in full force and effect. Expressive activities may occur on such adjacent space provided it otherwise complies with applicable University rules, regulations, and policies, which shall be applied in a nondiscriminatory and content-neutral manner.
As of 2017, SCOTUS has not addressed the issue of individual privacy rights within a traditional public forum, but it is reasonable to expect that individuals do not lose all privacy rights while in traditional public forums, even though all acts and behaviors of individuals in plain view in public forums are subject to recording and dissemination (provided the purpose of the recorder or disseminator is noncommercial). Thus, individuals while in a public forum have a reasonable expectation, for example, that no one, including the government, will open their backpacks, purses, and briefcases carried into the public forum, occupy an area of personal physical space that would be objectively understood as offensive or inappropriate if it occurred in a private area (e.g., taking a physical stance within a few inches of a person’s face or body), or seek to peer into or photograph private areas under clothing or other apparel.
SCOTUS has recognized that individuals have an expectation of privacy in “curtilage,” which is the immediate, enclosed area surrounding a house or dwelling. It is reasonable to assume that individuals while occupying space in a traditional public forum have privacy rights in space that is analogous to curtilage. Because a traditional public forum is by its nature public property freely accessible to the general public, it is reasonable to assume that SCOTUS, if it has occasion in the future to address the question of individual privacy rights in public forums, will define the boundaries of curtilage narrowly.

Civil disobedience

Legal protest and dissent are different from civil disobedience. Civil disobedience is public, non-violent, and conscientious violation of law undertaken for the purpose of bringing about a change in law, government policies, or society. In the history of the United States, civil disobedience has helped bring about many highly important, desirable changes in law and society. Although deliberate acts that violate the laws, rules, and policies applicable to free expression may constitute civil disobedience, those who commit such civil disobedience should be willing to and must expect to suffer the disciplinary and remedial consequences of their actions as provided by law, rule, or policy.

References

NYU Guidelines Regarding Protest and Dissent https://www.nyu.edu/content/dam/nyu/compliance/documents/protest_dissent.pdf

Harvard Law School Protest and Dissent Guidelines, https://hls.harvard.edu/dept/dos/student-orgs/

Sandy Davidson, “Exercising Rights,” Feb. 2016

Christina E. Wells, “The Law of free Expression in the United States” Journal for Legal Science & Practice (2001)

Civil Disobedience, Stanford Encyclopedia of Philosophy, http://plato.stanford.edu/entries/civil-disobedience

University of Minnesota Faculty Consultative Committee, “Free Speech at the University of Minnesota: Recommendations,” April 21, 2016

American Civil Liberties Union, “Know Your Rights: Demonstrations and Protests,” available at https://www.aclu.org/know-your-rights/protesters-rights/