Why did MU enact new speech regulations in 2017?
In early 2016, recent activity on campus had left many students, faculty, and staff unsure of how the University regulates speech, expression, and assembly in public spaces on campus, especially during protests. In addition, observers statewide and nationwide questioned whether the University responded appropriately to events in the fall of 2015. The interim chancellor and Faculty Council believed that it was important that the University be well prepared should similar events occur in the future, lest students, faculty, staff, and visitors be placed in harm’s way or subjected to violations of their rights. Accordingly, in January 2016 the interim chancellor and the Faculty Council chair together appointed the Ad Hoc Joint Committee on Protests, Public Spaces, Free Speech, and the Press. The Committee was given two tasks in its charge: (1) to “recommend how public spaces can be regulated on campus while protecting safety, free inquiry, and free expression” and (2) to “suggest how the University might resolve future conflicts should they arise concerning the use of public spaces on campus.” Many of the rule changes that became effective June 1, 2017 resulted from recommendations of the Committee. Before the Committee’s recommendations were adopted, the Committee published its report online, solicited public comments, invited campus organizations to meet with it, and held public forums. The rules adopted were substantially improved by this vetting process.
Is it illegal to chalk the sidewalks on campus?
Under the old BPPM 0:070 (which has been amended), MU rules stated: “Use of chalk on sidewalks or buildings is not permitted.” Faculty Council believed that this rule, while permissible under the First Amendment, was unduly restrictive of speech on campus. Also, the old rule was not consistently enforced, thereby enabling allegations of selective enforcement. The new rule (which is at BPPM 6:056) permits the use of chalk (so long as it’s not the kind that would damage campus property) on most sidewalks and plaza areas on campus. Exceptions are made for aesthetic reasons (for example, no chalking on Traditions Plaza) and practical reasons (for example, no chalking close to the entrance of campus buildings, lest the chalker impede access). We also state: “Chalking that violates federal or state law is prohibited, unless such chalking is protected by the rights of free speech and expression as set forth in the U.S. Constitution or the Constitution of the State of Missouri.” Beyond that, there are no restrictions based on message (that is, no “content-based discrimination”).
Why is camping on campus prohibited under the new policies?
Camping is prohibited under the new rules, and in the fall of 2015, it was already prohibited under university rules (enacted at the UM System level) that existed at that time. The chancellor at the time chose not to enforce the rule, but it had been on the books for decades. The 2015 campground on the Carnahan Quad created genuine public safety concerns (for example, extra police were dispatched to protect sleeping students, and administrators expressed concerns about fire and electrical hazards). The new BPPM 6:095 (“Camping on Campus”) defines camping and restates that camping on MU property is prohibited absent limited exceptions, such as, for example, “On University property specifically identified as a campground and used exclusively for the purpose of camping and related recreational outdoor activities” and “On University property specifically identified as a location for overnight parking of vehicles when the University or University department has given written approval, has issued a permit for such parking, and if applicable has collected a fee for the issuance of the overnight permit”). Courts have held that prohibitions on camping in public spaces constitute conduct regulation, not speech regulation. In circumstances where campers have claimed that camping is itself connected to expressive activity, courts have upheld camping prohibitions while recognizing the availability of alternative outlets in the premises for speech and expression. The rule prohibits students (and others) from setting up “temporary or permanent living quarters at any location on University property other than residence halls, apartments, or other University managed housing.” While this does apply to protestors, it does not single them out. It also applies to students (or anyone else, for that matter, including travelers with RVs or tent-trailers) who might otherwise choose to turn Francis Quadrangle, Carnahan Quad, or other MU property into a permanent or temporary campground. The rule does not restrict — for anyone — the right to speak on campus or even to stay out all night on MU property or organize all-night events on campus.
Are tents prohibited on campus under the new policies?
No; the new BPPM 6:050 “Use of Facilities” does not ban tents of all kinds. Instead, it says that one may not “Construct structures, including objects requiring penetration in concrete or grass, on University grounds without prior written authorization from the Office of the Vice Chancellor for MU Operations.” The rule defines “structure” as “the framework of and the space enclosed by any building, booth, tent, canopy, vehicle, trailer, fence, wall, or similar object or enclosure.” As with camping (see above), this is a conduct regulation also, to be applied in a content-neutral manner. In other words, if you want to drive tent stakes into MU’s lawn, you need a permit, lest you accidentally damage an underground water line (or, less dramatically, damage the lawn and make it look bad). May you pitch a tent that does not require “penetration in concrete or grass”? Yes. May you use such a tent to hold political (or other) discussions? Yes. But you may not use it as sleeping quarters because camping on campus is prohibited. And you may not drive tent stakes into MU’s lawn without a permit, whether you are doing it for fun or in service of a protest. Again, this a conduct regulation that applies to everyone; it is not a speech regulation.
Are megaphones and other sound-amplification devices allowed?
Under the new rules, yes. Under old rules (contained in the old BPPM 6:052, which has been amended), the answer was no. The prior rules stated that all “use of sound amplification devices in University buildings, or on any University site” was prohibited absent a permit. No exceptions were provided in the rule. By its literal terms, then, the old rule would apply to all varieties of electronic speakers, including those kept in offices or those used by a student organization during a meeting, which cannot be what the drafters of the old rule intended. Faculty Council believed that the old rule, in addition to being unduly restrictive of free expression, was not actually enforced according to its terms—at least not in a uniform manner—which exposed the University to the possibility of charges of selective, content-based enforcement. Under the new rule (BPPM 6:052, “Sound Amplification Devices”), a great deal of sound amplification device use is permitted without any permit. Permits are required if the sound is sufficiently loud that it could disrupt University events such as classes and exams. Details concerning decibel levels and times of day are provided in the rule (as well as guidance for predicting whether a permit will be needed). In other words, you often need no permit at all to use a megaphone or stereo. And if you want to use very loud amplification (for example, for an outdoor concert or political speech), you can apply for a permit. If in doubt about whether a particular planned use of a sound amplification device needs a permit, it would be prudent to make an inquiry at MU Operations (573-882-7255, 305 Jesse Hall). This rule is also content-neutral; permits will not be denied on the basis of viewpoint.
Is there any location where or any time when protesting on campus is not allowed?
Yes, but these times and locations where protest and assembly are not allowed are very limited. The new BPPM 6:050 “Use of Facilities” lists certain places where one may not conduct “demonstrations, protests, rallies, vigils, or assemblies.” The list includes locations such as “Hospitals, health care clinics, and other health care facilities” (included to protect safety and access to medical care), “Any room or other space in circumstances where a private meeting is being held, or has been scheduled to be held, in such space” (meaning that one cannot begin a demonstration where someone else is already properly using the space), and “private offices” (to protect the ability of MU employees to work). For the full list, consult the Use of Facilities policy.
There are a few outdoor spaces where protests and assemblies can be scheduled, but where impromptu, spontaneous protests and assemblies are prohibited. These are spaces that have dedicated uses – such as outdoor parking lots and Stankowski Field (where the fields and track are purposed for student recreational activities). This is not to say that an event cannot be scheduled on those grounds, but normally these spaces are not available for events, and when they not reserved, they are preserved for their intended uses.
The goal of the policy is to protect University functions while allowing robust freedom of expression. If someone wishes to hold a rally or other event in a place where such activity is prohibited, the University will attempt to help the organizers find an appropriate alternate location.
Are all parts of campus considered “public 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.” 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 the Supreme Court of the United States, and the term is used to help explain how the First Amendment is applied when disputes about the contours of free speech arise in public areas. For more information on how government entities (including public universities) may regulate traditional public forums, read about outdoor vs. indoor spaces in our guiding principles.
What the Use of Facilities rule does is to implement the statute by making all outdoor areas available for protests, assemblies, vigils, and other expressive activities, except for spaces where there are articulated, authentic reasons for restricting the time, place, or manner of speech and expression in that space. The exception for lawns at the hospital is an illustration of how the rule works. The exceptions must be based on a content-neutral reason – as the hospital lawn example demonstrates.
Do I need a permit to hold a rally on campus?
No, with a very few limited exceptions. The new BPPM 6:050 “Use of Facilities” states that MU “is committed to protecting the rights of expression, assembly, protest, and dissent and to making its facilities and grounds available for these activities” and also states, “Protecting impromptu and spontaneous assembly for the purpose of expression, protest, and dissent is essential to fulfilling this commitment.” Accordingly, one may often use space at MU without a permit, and the lack of a reservation is a basis for terminating expressive activity in only a few narrow circumstances.
For example, if someone else has previously reserved a space for an activity, another group seeking to use the space at the same time cannot do so. The other group can relocate its activity or can use the scheduling procedure of the rule in order to acquire priority for the use of a public space. The policy provides contact information to assist those who wish to reserve campus spaces such as classrooms, rooms at the MU Student Center and Memorial Union, Mizzou Recreational Spaces, and outdoor locations such as Francis Quadrangle and Traditions Plaza. Many of these spaces may freely be used with no permit, so long as someone else is not using them already. Also, use of city streets and sidewalks within the boundaries of MU may require a permit from the City of Columbia. The Office of MU Operations will refer those seeking to schedule events on city-controlled spaces to the appropriate City of Columbia offices.
In addition, a few locations are not available for reservation or unscheduled expressive events and activities by University or non-University organizations or departments at any time. These include planted gardens, parking garages, locations within 20 feet of the entrance or exit to any building, and areas containing and surrounding the MU Research Reactor (MURR), the University Power Plant, and the Laboratory for Infectious Disease Research, among other locations. BPPM 6:050 “Use of Facilities” provides a more complete list.
What if someone is holding an event on campus, and I want to protest it?
To protect the right to free expression at University events, the policy contains the following statement, in the section listing what spaces may be reserved and how to obtain permits: “Nothing in this Section should be interpreted or understood as limiting expressive speech and activities, whether planned or impromptu, at public University functions, activities, and events or in outdoor recreational areas in circumstances where the speech or activity (1) does not interfere with the event’s occurrence or prevent audience members from hearing or observing the event, or (2) does not interfere with the outdoor recreational area’s use for its intended purpose.”
In other words, if you wish to protest a public lecture on campus, you may do so, but you may not prevent the speaker from being seen and heard. For example, you could hold a protest outside the entrance to the building at which the event is occurring, or you could attend the event and hold signs indicating your views. You could not, however, shout down the speaker. But you can express your displeasure with the speaker’s ideas during with speech in a manner commensurate with the expressions of those who favor the speaker. Thus, for example, if applause of limited duration is acceptable as an interruption during a speaker’s remarks, boos of limited duration are also acceptable.
This is explained in more detail in our guiding principles, under Vocal Response.
Does the campus have “free speech zones”?
No, not now – but that does not mean free speech has been limited. Instead, the entire outdoor area of the campus is now the functional equivalent of a free speech zone. Under the old rules and traditions of the campus, some areas of the campus were designated as “free speech zones” in the tradition of “speakers corners,” which is an idea that can be traced back for centuries. The idea was that any speech could occur in those zones, although as a practical matter the right of free speech was not unlimited in those zones. For example, one could not threaten someone else with imminent harm in a free speech zone, nor could one commit libel. The problematic implication of “free speech zones” is that areas outside of the zones are not areas where free speech is protected (thereby limiting free speech to a narrow set of locations), an idea that was rejected by the Missouri legislature in the 2015 statute discussed above. Now, all outdoor areas on campus are places where free speech is welcome, subject to the narrowly drawn exceptions that the statute allows.
Under the policy, can a student organization reserve a room or an outdoor area and keep others out?
Yes, but there are caveats to this answer. A student organization can schedule a room for organization meetings or discussions and limit access to the room to members of the organization. This means that members of the public, nonmembers of the organization, and the press can be excluded from the meeting. This is a “closed meeting.” When a meeting is closed, the organization can invite designated individuals or groups (including members of the press) and exclude members of the University community and general public not related to the sponsoring organization. If a closed meeting is advertised to those who are not invited to attend, there should be a clear disclosure that the meeting is closed.
With a closed meeting, protest by non-attendees is ordinarily limited to activity outside the meeting that does not impede access to the meeting or substantially interfere with the communications in the meeting.
If a meeting is not closed, it is open. When a meeting is open, the sponsoring organization typically provides timely notice that the meeting is open and typically makes at least a majority of the seats available to the university community or the general public.
With an open meeting, picketing or distributing literature outside the 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.
Outdoor spaces may be reserved for a closed meeting, limited to the time, place, and manner appropriate to the purpose of the meeting. Thus, for example, a college might reserve a portion of a quadrangle for an alumni picnic. Normally, traditional public forums – which by definition are places where the public usually has free access — are inappropriate for closed meetings, and the duration and scope of the reservation will be limited. In the usual case, a closed meeting is most appropriately scheduled in an indoor meeting space.
When private events and activities or closed meetings are scheduled in outdoor spaces, the rights of protest, dissent, and assembly in adjacent space in the traditional public forum continue in full force and effect.
This is explained in more detail in our guiding principles under Speaker’s right to communicate.
When does a protest or assembly rise to the level of “disrupting,” “interfering,” “obstructing,” or “preventing”?
Government regulations of expressive activities have long used these words as standards to define the limits of free speech and expression protected by the First Amendment, and courts have developed a body of law that gives meaning to these words. These words do not have mathematical precision, but they are to be given the common understanding that inheres in the particular context in which the words are used. Protest has as its very purpose “disturbing” someone else’s point of view, and there is no constitutional right not to be disturbed. Likewise, protest is often disruptive – when someone pickets on a sidewalk, walking on the sidewalk is to some extent disrupted, and there is no constitutional right to be free from all disruption.
The context is also important. Shouting to disrupt the opposing team at a sporting event is permissible under the First Amendment, but shouting to prevent a speaker in a lecture hall from being heard is not.
This is discussed in much more detail in our guiding principles, under Common Understanding.
The basic point amplified there is this: “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.”
Can I take photographs in outdoor areas of the campus? During protests?
Yes; photography is allowed in traditional public forums and 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.
For more detail, see our guiding principles, under Photography.
Can I protest a protest?
Yes. Counter-demonstrators also have a right to assemble and protest. This includes a right to be present at a demonstration and to voice displeasure with demonstrators. Counter-demonstrators, however, are not allowed to physically disrupt the event they are protesting. University officials 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.