Commemorate 9/11 on campus? Not without a permit!

Robert Shibley Senior Vice President, FIRE
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In the immediate aftermath of the attacks of September 11, 2001, one of the few places it was controversial to display the American flag — a symbol of unity in that terrifying time — was on America’s college campuses.

Ten years later, it still is.

Last Friday, three college conservatives at Northern Arizona University (NAU) gathered in the student union to pass out small American flags in remembrance of 9/11. They were indoors, against the wall of a large room, because it was raining outside. Wisely, they also brought a video camera.

It wasn’t long before an administrator approached them and told them to go outside, in the rain, because they weren’t in an “approved vendor space.” (They weren’t selling anything.) The students refused.

The first administrator was followed by another administrator, who told the students that the university could use “time, place and manner” rules to determine that they were not allowed to pass out flags there without a permit. This administrator was followed by yet another administrator who claimed that the First Amendment meant “free speech in a designated time, place, and manner.”

That’s a reading of the First Amendment that only a bureaucrat could love. The Supreme Court has indeed determined that the government may enforce time, place and manner restrictions on expression, but these restrictions must be reasonable, content-neutral, narrowly tailored to serve a significant government interest and must leave open ample alternative means of communication. So when the expression consists of a couple of people handing out flags while standing against the wall of a large room, one wonders what “governmental interest” is involved in telling students they can’t do so.

The fourth administrator to confront the students repeated “time, place and manner” four times when the students challenged her on how the university could stop its own students from standing around and passing out flags. After that, NAU called the cops. A police officer (who looked like she’d rather be somewhere else) came and took the names of the two remaining participants, saying that it wasn’t a legal matter but a university code of conduct matter.

Until Monday evening, when NAU most likely realized how bad punishing people for this was going to look, the students faced charges of “failure to comply with a university official” and “interfering with university activities.” The first charge only made sense if “Hey, you two, stop passing out flags to commemorate 9/11” is the sort of order you think university officials should be giving, while the second only made sense if “not observing the anniversary of 9/11” counts as a university activity.

NAU requires that any group wishing to engage in expressive activity get a permit from the Office of Student Life before doing so. This is justifiable when a group is planning a giant march on campus. But can the government really justify demanding a permit in order to stand around handing out flags? If, God forbid, there should be another terrorist attack on America, is NAU planning to use this policy to make sure any impromptu vigils or demonstrations are swiftly broken up?

At NAU, hanging around the student union for no reason requires no permit. Handing out American flags while doing so results in having no less than five different government employees tell you to stop. And while it’s nice that NAU has now dropped its charges against the students, the fact remains that the anniversary of 9/11 has passed, and if NAU’s goal was to stop this commemoration, it certainly succeeded.

It would be nice to rule out political motives on the part of NAU, but it wouldn’t be very reasonable. After September 11, 2001, campuses racked up a terrible record of censorship. At Lehigh University, Central Michigan University and College of the Holy Cross, American flag displays were taken down. Students and faculty members at San Diego State University, Penn State University and Johns Hopkins University were all chastised or punished for strongly denouncing the terrorist attacks or supporting a military response to them.

Either NAU decided it wanted to continue this shameful tradition, or it is so over-regulated and hyper-bureaucratized that it couldn’t see that making “handing out flags without a permit” a campus crime goes against everything a university stands for. Colleges are supposed to be the ultimate “free speech zones” in our free society. It’s sad to see that 10 years after we were attacked at least partly because we are a free society, Northern Arizona University has failed to understand what such a society is all about.

Robert Shibley is the senior vice president of the Foundation for Individual Rights in Education (FIRE).