U. of Cincinnati loses free speech lawsuit — is another Ohio college next?

Robert Shibley Senior Vice President, FIRE
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As a native of Toledo, Ohio (Go Mud Hens!), I guess I should be happy that my home state is so flush with cash that it had $200,000 in taxpayer funds to waste in the latest doomed attempt by a public university to violate the constitutional rights of its students. Since 2007, the Foundation for Individual Rights in Education (FIRE, where I work) has been warning the University of Cincinnati (UC) that confining student speech to a tiny “Free Speech Area” that covered a mere 0.1% of the school’s 137-acre campus is unconstitutional. UC was dead serious about enforcing this policy — the school actually threatened that any UC students who dared to express themselves outside of that spot would face trespassing charges and criminal prosecution.

On Wednesday, the United States District Court for the Southern District of Ohio put an end to UC’s blatantly unconstitutional policy. Judge Timothy S. Black found in favor of the UC chapter of Young Americans for Liberty (YAL) and its president, Christopher Morbitzer, issuing a permanent injunction against UC’s shameless restrictions on student expression. The ruling prohibits UC from limiting student speech in outdoor areas unless the constraint is “narrowly tailored to serve a compelling University interest.”

UC had many opportunities to avoid this defeat. It could have changed its policy when FIRE selected it as “Speech Code of the Month” in 2007. It could have taken its First Amendment obligations seriously when YAL approached UC in February, asking for permission to talk to students across campus about a time-sensitive, statewide ballot initiative. It could have re-examined its position when YAL and Morbitzer, in collaboration with FIRE and Ohio’s 1851 Center for Constitutional Law, challenged the “Free Speech Area” in federal district court. It could have listened to the public’s negative response when UC topped FIRE’s 2012 list of the 12 Worst Colleges for Free Speech in March. Instead, reportedly with the agreement of the Ohio attorney general’s office, UC wasted $200,000 trying to uphold a clearly unconstitutional policy.

One wonders if UC President Gregory H. Williams knew which way the wind was blowing when he suddenly resigned on Tuesday, a single day before the district court’s final ruling on the case and a week before UC students return to campus for the fall semester. According to those present when he resigned, Williams offered no explanation for his abrupt departure — effective immediately — other than citing “personal reasons.”

One also wonders if anyone at Sinclair Community College (SCC) in Dayton, Ohio, which is only an hour away from UC, is paying attention to Black’s ruling. On July 6, SCC became embroiled in its own First Amendment lawsuit after its campus police effectively silenced a rally against recent national health coverage mandates. The police forced the protesters to put away all signs or banners expressing their message, citing a mind-bogglingly broad policy that prohibits students from displaying any signs of any nature — a policy that, according to the SCC student paper, the college has been enforcing for 22 years.

The SCC suit has been filed in the very same district that definitively upheld the First Amendment rights of Ohio university students on Wednesday. Based on Judge Black’s unsympathetic response to UC’s “Free Speech Area,” it shouldn’t be difficult to predict the court’s reaction to SCC’s decades-long refusal to allow free speech across its entire campus. Let’s hope Ohio Attorney General Mike DeWine says no to throwing another $200,000 in state funds at yet another losing battle to silence Ohio students.

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