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Is Free Speech at Risk? The time and place to speak

Crowds of students rushed into the streets of the University of Oregon, venting their frustration and chanting, “Fuck Donald Trump” as they passed through the intersection of 13th and Kincaid on election night. Students said standing and yelling with peers was therapeutic in the face of an unclear future. The demonstration was spontaneous, loud and disruptive — and protected by First Amendment free speech safeguards.

But if new rules being considered by UO administrators are adopted, outcries like the one on Nov. 8 could be considered a violation of university policy.

The frequency of demonstrations this year has shown that protesting is part of the culture at UO. Whether it is a post-election demonstration at the EMU or a sit-in at Johnson Hall, students practice free speech in many ways. This is why the guidelines set forth by a proposed time, place and manner policy worry some students.

A group of students lead chants outside of the Knight Library. Students protest the election of Donald Trump on Nov. 9, 2016. (Aaron Nelson/Emerald)

UO undergraduate Andrew Dunn, external director of staff for ASUO, says the proposed policy is too limiting.

“There is really a lack of specificity in a lot of the policy language, which is a huge problem. It seems that it would be left up to the interpretation of the administration,” Dunn said. “I think that the way the policy is designed could drastically limit the voice of students on campus.”

The Time, Place, Manner and Protection of Speech Policy, proposed by UO General Counsel Kevin Reed, limits where speech activities can occur. For example, the policy mandates that students ask for permission to protest in certain spaces. The policy states that, “The interior spaces of university buildings are, generally, exclusively reserved for university business activities and therefore are not open for speech activities unless properly reserved in advance through the facilities scheduling policy.”

The TPM policy also includes guidelines for posting signs not related to UO affairs, restricts writing with chalk on walls and demands that sound at protests be held to a reasonable volume during university hours, but does not specify the exact decibels.

When Reed arrived at UO in 2015 from his position at UCLA as vice chancellor of legal affairs, he expressed to President Michael Schill that he was concerned the university didn’t have a clear procedure on how to respond to protests.

Reed said the proposed policy “is all about enabling free speech and not restricting it.”

He said the policy is necessary to prevent certain protests from suffering more critical regulation on a case-by-case basis. A set of protocols established ahead of time provides clear guidelines for students about what is allowed and what isn’t.

“There is really a lack of specificity in a lot of the policy language, which is a huge problem. It seems that it would be left up to the interpretation of the administration. … I think that the way the policy is designed could drastically limit the voice of students on campus.” – Andrew Dunn, external director of staff for ASUO

“There isn’t a mature entity I think in the nation that doesn’t have rules that restrict the time, and the place and the manner where free speech happens. When they’re done right – and I hope they are done right – they’re about empowering people to speak,” Reed said.

Senate President Bill Harbaugh said the university has no need for this new policy. Members of the university Senate disagree with parts of the policy. The Senate will be proposing an altered policy to President Schill probably around early spring, Harbaugh said.

“The university has operated under the existing rules for six years now without any problems,” Harbaugh said. “Why are General Counsel Reed and President Schill looking for problems where there have not been any problems?”

Although some students and faculty are upset about this policy, it does not violate the law, according to UO journalism school First Amendment chair Kyu Ho Youm.

Youm says regulations regarding time, place and manner are constitutional because they do not affect the content of the speech activity. If there is still space available for students to protest, then such policies are allowed. The policy would only be unconstitutional if there were no places for students to demonstrate.

“Time, place and manner regulation is simply a regulation which is designed to accommodate the speaker’s interest to express the message without being excessively or unconstitutionally punished for the message, and so content is still protected,” Youm said.

Many universities, including Oregon State University, have policies regarding the time, place and manner of protests to avoid disruption of day-to-day activities on campus.

The policy at OSU has similarities with UO’s proposed policy, such as rules on noise not being disruptive. A major difference between the two policies is that OSU’s policy allows protesting inside buildings; Reed’s proposed policy says that interior spaces are not allowed for speech activity, unless they are designated for it.

The policy has drawn concern from activist clubs on campus, such as the Climate Justice League, a student club that advocates for social change. Last year, the group held a campaign called Divest UO, which sought to reduce the UO Foundation’s investment in fossil fuels. Through protests and sit-ins, the campaign was successful.

Co-director of Climate Justice League, Sahalee McFarland, a junior anthropology major, is worried that the potential new policy would limit the success of future campaigns.

“The club’s general feelings are that [the proposed policy] is pretty restrictive and it really limits student’s free speech,” McFarland said.

Aspects of the policy appear to be a direct result of the Divest UO campaign and might signal that Divest UO instigated the creation of this policy, McFarland said.

Reed said that the policy is not a direct response to the Divest UO demonstrations.

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“The only real restriction on expression activity are restrictions that are related to making sure that the campus can operate and engage in its daily activities of teaching and research and learning without unreasonable disruption,” Reed said.

Students have been protesting in Johnson Hall, the way the Divest UO movement did, since the 1960s and 70s. According to an Emerald article from 1970, students had a 31-hour overnight sit-in at Johnson Hall to protest the Vietnam War. Sixty-one protesters were arrested for trespassing and disorderly conduct in a nearly two-hour confrontation with police.  

The proposed policy will also likely affect ROAR, a student activist group that runs campaigns opposing oppression. ROAR President Augustine Beard, a junior history and environmental studies major, believes that the policy takes away from UO’s history and culture of protesting.

“The Time, Place, Manner policy undermines the rich history of activism at the University of Oregon,” Beard said. “From Vietnam protests, to queer rights activism, to Students Against Sweatshop Labor, to the GTFF Strike, to Divest, to Black Student Task Force, protest and direct action have been tools of social progress for our campus.”

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Emma Henderson

Emma Henderson