1) The trouble is that material in dorm hallways *is* located in
open or public areas -- it's a means of expression to a wide range of one's
fellow students. Incidentally, that the dorm rooms are people's homes cuts
two ways: On the one hand, people may feel most entitled to protection from
offense at home; but on the other hand, people may feel most entitled to
speak their minds at home (and the outside of one's door is physically
closer to one's own home than even to people in heighboring rooms).
2) The standard of what a "person of ordinary sensibility" finds
offensive doesn't seem to me to be particularly content-neutral. In fact,
as Greg describes, it's actually viewpoint-based -- "outrageously racist or
sexist depictions" could be prohibited, while outrageous depictions
expressing other views (anti-Americanism, support for outrageous Communist
tyrannies, and so on) would presumably not be prohibitable.
If the university were to say "no postings at all on our doors and
our walls," that at least would be a content-neutral rule, and one that
would be permissible on university property. But if it allows such
postings, then it has created a designated public forum. And rules such as
"no outrageously racist or sexist depictions," "no speech that offends
people of ordinary sensibility," or "no harassing speech" strike me as
unconstitutional even in such a designated public forum.
Eugene
> -----Original Message-----
> From: Sisk, Gregory C. [mailto:[EMAIL PROTECTED]
> Sent: Thursday, June 19, 2003 1:01 PM
> To: [EMAIL PROTECTED]
> Subject: Re: Proposed dorm speech code at the University of Alabama
>
>
> The further expression is located (physically) from the
> interior and immediate precincipts of a person's home, the
> lesser the strength that should be accorded to the
> privacy/emotional-solace concerns of the resident. Similarly,
> if the expression is located in open or public areas, even if
> it could be viewed from a private residence, the less
> comfortable I would be with regulation, although I would not
> reject it altogether.
>
> In sum, when it involves a residence, my analysis is
> essentially that of common-law nuisance doctrine. In partial
> response to Eugene's second question, then, the standard of
> the person of ordinary sensibility, etc. provides some basis
> for a content neutral standard. In the same regard, I think
> this type of regulation -- of billboard or of dorm hallways
> -- must be limited to depictions that arouse extreme offense
> in a person of ordinary sensitivity. Pornography,
> outrageously racists or sexist depictions, etc. would fall
> within the ambit of legitimate control; the Confederate flag
> would make for a more difficult case (although I recall the
> debate we had previously about whether the Confederate flag
> may be regarded a the equivalent of a swastica).
>
> With this in mind, I would answer with a qualified "yes" to
> the billboard question, but with a strong presumption against
> government regulation. A similar example would be a city
> ordinance that precluded an outdoor drive-in theater from
> displaying nudity or graphic violence that could easily be
> seen from nearby homes.
>
> I am more troubled by the government ordering private
> landlords to regulate offensive expression within the
> buildings, because of the intrusion into the relationship
> between landlord and tenant and the expressive rights of a
> larger set of actors.
>
> The dormitory scenario offers a stronger justification for
> sensible regulation for the additional and important reason
> that Eugene notes, which is that the government is not merely
> the regulator but also the proprietor of the property (in a
> public university). When the government is wearing the hat
> of a landlord, in addition to that of the sovereign, then the
> sustance of appropriate regulation changes. While the
> government cannot never take off the hat of sovereign and
> thus cannot be treated as merely a landlord, it properly is
> afforded a greater degree of discretion, even if the free
> speech setting, when acting as an employer, landlord, etc.
>
> I should also say that, while I think the government at a
> public university legitimately may impose restrictions on
> postings for reasons of offense in dormitory common areas,
> that is not to say that such a regulation is good policy.
> Governmental paternalism in this context, as in so many
> others, can have the effect of heightening sensitivities
> beyond what is reasonable and of disenfranchising people from
> taking responsibility for themselves. I submit that a
> student who takes offense at something posted by another
> student and responds to it by counter-protest, debate, etc.
> rather than running to university bureaucrats will be
> empowered by the experience.
>
> Nonetheless, I am sympathetic to the student who says, look,
> I am ready and willing to be part of the rough and tumble of
> ideas and controversies from the moment I leave my home until
> I return that evening. But when I am at home, I need to
> retreat from the battle to rejuvenate, without being accosted
> by childish and outrageous symbols even time I open up my
> dorm room door to go take a shower.
>
> Greg
>
>
>
> -----Original Message-----
> From: Volokh, Eugene [mailto:[EMAIL PROTECTED]
> Sent: Thursday, June 19, 2003 1:59 PM
> To: [EMAIL PROTECTED]
> Subject: Re: Proposed dorm speech code at the University of Alabama
>
> Two questions:
>
> (1) Say a city bans all billboards with offensive
> signs, if the billboards are visible from a private
> residence; and also bans all tenants, in privately owned
> housing (including private university housing) as well as
> publicly owned housing, from displaying offensive materials
> in their hallways, even when the housing owner would allow
> this. Would you say that's constitutional? Or does the
> protection of people in their homes (or perhaps around their
> homes, if one treats the student's home as just being his
> room, and not the common area that he shares with dozens of
> others) justify restrictions on offensive speech only when
> the government acts as proprietor of its own housing, and not
> when it acts as sovereign?
>
> (2) Even if some such restrictions are permissible,
> may the government impose viewpoint-based restrictions (e.g.,
> "no racist or sexist postings" or "no Confederate flags") and
> restrictions that are quite vague and that are thus open to
> viewpoint-based enforcement (e.g., "no harassing postings")?
> Or would the government's power extend only to, say,
> content-neutral bans on all postings, or at least such bans
> that seem viewpoint-neutral (perhaps "no profanity in
> postings")? Compare Frisby v. Schultz (upholding a
> content-neutral residential picketing ban justified by
> arguments such as those that Greg makes) with Carey v. Brown
> (striking down such a ban when it had a content-based
> exception for labor picketing).
>
> Eugene
>
>
> > -----Original Message-----
> > From: Sisk, Gregory C. [mailto:[EMAIL PROTECTED]
> > Sent: Thursday, June 19, 2003 11:40 AM
> > To: [EMAIL PROTECTED]
> > Subject: Re: Proposed dorm speech code at the University of Alabama
> >
> >
> > Mark raises, I think, an important point about the legitimacy of
> > different rules for different areas in a dormitory that I
> suggest can
> > be recognized as valid even by those of us (and I include
> myself) who
> > are something of free-speech absolutists in most other contexts.
> >
> > Many years ago when I (successfully) as a brand-new law
> professor had
> > the temerity (in the view of some) to campaign against a proposed
> > speech code at my former institution, I nonetheless became
> convinced
> > that the countervailing interests of students living in a
> dormitory to
> > avoid being confronted with offensive imagery in their own homes
> > deserved positive consideration. While a student should be left
> > largely unregulated in choosing what images or expressive
> > materials to post inside the student's own room, the privacy
> > and emotional security interests of other students emerge
> > when expression that may offend is imposed upon a captive
> > audience in the very place where persons retreat for rest
> and renewal.
> >
> > When a person ventures forth into the world at large, he or
> she cannot
> > be protected from exposure to sights, sounds, etc. that the
> particular
> > person may find displeasing. And when that displeasure is
> grounded in
> > disagreement with the idea expressed, calling upon the
> government to
> > suppress it is most troubling. Thus, for example, the
> common areas of
> > the university, as with the public sidewalks of a street, should
> > be "free speech" zones. In these areas, arguments about
> > offense, emotional distress, etc. cannot justify governmental
> > intervention.
> >
> > But even the hardiest of souls needs a place of retreat, to be
> > refreshed, to be "at home." And for many college students
> that place
> > is the dormitory. In my view, a student going and from his
> or her room
> > to the lavatory or to the elevator -- a journey that cannot
> be avoided
> > -- should not have to suffer the emotional onslaught of offensive
> > images. Just as I believe a community is justified in adopting
> > different rules regarding street protests and marches for
> residential
> > areas, I think a university justifiably can adopt a more protective
> > approach to living quarters, requiring greater sensitivity to
> > the concerns of neighbors, including adopting some
> > restrictions for those elements of a dormitory that are
> > immediately adjacent to the rooms in which students live.
> > The difficulty is in defining what is and is not permitted,
> > and applying that definition, in a manner that is as neutral
> > as possible and leaves little discretion for overzealous
> > administrators in enforcement.)
> >
> > Greg Sisk
> >
> > Gregory Sisk
> > Professor of Law
> > University of St. Thomas School of Law (Minneapolis)
> > 1000 LaSalle Avenue
> > Minneapolis, MN 55403-2005
> > 651-962-4923
> > [EMAIL PROTECTED]
> >
> >
> >
> > -----Original Message-----
> > From: Mark Tushnet [mailto:[EMAIL PROTECTED]
> > Sent: Thursday, June 19, 2003 1:07 PM
> > To: [EMAIL PROTECTED]
> > Subject: Re: Proposed dorm speech code at the University of Alabama
> >
> > It's worth noting that the policy remains in draft form. One might
> > imagine different provisions for spaces interior to
> residents' rooms,
> > and those exposed to the public such as the exteriors of doors. I
> > think much would turn on precisely what the policy covers. But, I
> > would think that there's no serious problem with pretty restrictive
> > regulations of things like the walls in common hallways
> (unless they
> > are conceptualized, somehow, as public fora -- which seems to me
> > would be pretty hard to do given the current Court's
> > unwillingness to expand the scope of the "traditional" public
> > forum from streets and parks). To the extent that the walls
> > of the common areas are used to post official announcements
> > and announcements of public events, again one would need to
> > know the precise contours of the policy to know whether such
> > postings had converted the areas into limited public fora.
> > In short, I find it hard to react to the story without more
> > detail about what policies are actually in place.
> >
>
