When someone complained about a student’s Ron Paul poster in his dorm room window this fall, Auburn University in Alabama had the opportunity to take a principled stand for free speech. Of course, since we’re dealing with a university, you can probably guess that it instead chose to double down on an unwise, needlessly restrictive, and unfairly enforced policy at odds with the spirit of the First Amendment.
Auburn undergrad Eric Philips probably thought he wasn’t doing anything particularly noteworthy when he hung a banner supporting Representative Ron Paul’s presidential candidacy in his residence hall window. ’Tis the eve of election season, after all. On November 7, however, Philips’s hall director ordered him to remove the banner from his window — an order with which Philips complied. A housing administrator explained to Philips Auburn’s policy (new this year) on window postings, which states that “Hanging or displaying items such as flags, banners, decals, or signs out of or obstructing residence hall windows is prohibited.”
One might describe this policy as restrictive and unnecessary, but at least it’s fair. Everyone gets silenced equally, right? Yet FIRE has photos (provided by Philips) which convincingly show that Auburn generally made little effort to enforce this policy. And why would it? It’s a pointless policy that almost seems intended to annoy students. Hanging signs in dorm room windows is standard fare on college campuses across America.
But in this case it’s difficult not to come to the conclusion that Philips was discriminated against because someone who didn’t like Ron Paul complained about it. After all, why else would Philips’s banner be targeted while numerous others remained unmolested?
The First Amendment, by which Auburn is bound by virtue of its funding through tax dollars, does not exist only to protect speech we find harmless or inoffensive. Far from it. As the Supreme Court noted in Termineillo v. Chicago (1949), “[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” Auburn’s selective enforcement of its policy has the effect of discriminating against student expression on the basis of its viewpoint — an outcome plainly unconstitutional at a public university like Auburn.
My organization, the Foundation for Individual Rights in Education (FIRE), explained this to Auburn in a letter sent to its president, Jay Gogue. We also told them of the example set by the University of Texas at Austin when it was embroiled in a similar controversy during the 2008 election cycle. At UT, two students faced possible expulsion for placing political posters on their residence hall doors and windows. While this technically violated then-UT policy, the outcry against UT’s action — spurred on by national media as well as UT’s University Democrats and College Republicans — caused the university to quickly change course. UT President William Powers Jr. suspended the policy and formed a committee of students, faculty, and staff members to review it. Powers later accepted the committee’s recommendation that the suspension of the policy be made permanent.
Yet Auburn was not swayed. Instead, Assistant Vice President for Student Affairs Amy Hecht’s reply to FIRE failed to acknowledge its selective policy enforcement, while maintaining that Auburn was “committed to the consistent and nondiscriminatory enforcement of this policy.” This represents a missed opportunity for Auburn, and one which puts it out of step with America’s understanding of free speech. As the Supreme Court famously wrote in Healy v. James (1972), “the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.”
And among Auburn’s peer institutions, UT is far from the only university to come to the realization that such bans are unnecessary and infringe on a form of expression that has become a hallmark of campus culture (just try walking around the nearest campus sometime). In another case in which FIRE was involved, the University of Alabama in 2003 attempted to ban all window displays in response to one student’s display of a Confederate flag in his window. Students declared their opposition to the policy by prominently hanging American flags in their windows. Eventually, the policy fell, as it should have.
Auburn was already stomped by Alabama in this year’s edition of the Iron Bowl. Does it really want to be embarrassed by its rival on free speech as well?
Peter Bonilla is the assistant director of the Individual Rights Defense Program at FIRE.