Advancing Religious Liberty
8/20/13 at 04:09 PM 0 Comments

You Can't Change the Rules in the Middle of the Game: University Forced to Set Clear Rules When Regulating Free Speech

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Author: Alliance Defending Freedom Legal Counsel Jonathan Scruggs

Imagine a baseball game. It’s the middle of a close game, and everyone on edge focusing on each pitch. But all of a sudden, the umpire stops calling batters out after three strikes. Instead, the umpire gives some batters five strikes and other batters six strikes before calling them out. And to make matters worse, the umpire forces the home team’s pitcher to throw more strikes than the visiting team’s pitcher before calling an out. Now imagine how frustrating it would be. The players wouldn’t know what to do. They wouldn’t be sure if they had three strikes or five or six. They would also sense that umpire was playing favorites.

As this example shows, there are good reasons to create and enforce clear rules. And these reasons apply, not just to sports, but free speech as well. Without clear rules, officials regulating free speech can play favorites. They can hide behind vague standards and silence messages they dislike while allowing messages they like. And vague rules prevent speakers from knowing how to “play the game.” In the face of vague rules, speakers will be unsure when they can speak, where they can speak, and what they can say. So when faced with vague rules, speakers may end up just staying silent. For all these reasons, it makes perfect sense to have clear rules for free speech to work, right?

Well, apparently that is not how the University of Tennessee (UT) saw it. Showing a disregard for fair play, UT passed two contradictory policies that forced campus visitors to get “sponsorship” before speaking on campus. For visitors wishing to hand out a pamphlet or discuss the Gospel at UT, the policies left the speaker confused: Who can I get permission from? Can’t a school official just deny permission for any reason and thus deny me permission because they don’t like my message? Unable to answer these questions, speakers could only throw up their hands and stay silent. As a result, UT effectively created a campus wide no speech zone through administrative confusion and contradiction.

Thankfully, Alliance Defending Freedom cut through this confusion and educated UT about its constitutional responsibilities when Alliance Defending Freedom challenged UT’s policies in federal court. And the Sixth Circuit Court of Appeals recently brought this lesson home when it issued an opinion finding UT’s policies to be vague. As this opinion explained, UT’s policies were problematic because they failed “to ensure fair notice to the citizenry and to set out a clear standard for enforcement” which it turn “threatens to chill speech.”

But this opinion is more than just commentary on rule writing. Because of this opinion, speakers no longer have to fear discrimination from UT officials or play guessing games to express their message at UT. The Sixth Circuit decision confirmed that university officials elsewhere cannot write vague policies that enable them to make up the rules on a case by case basis. And this principle will only become more important going forward since more and more people are finding the Gospel message to be offensive and thus “unfit” for “reasoned” discourse. Clear rules prevent this. They force officials to play fair and give unpopular messages the same freedoms as popular ones.

This post originally appeared here.

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