No speech for you! Is this legal?

From the Lincoln Journal Star:

(Update: The policy has been temporarily rescinded.)

Is such a policy legal? I don’t remember much about Constitutional law, but I do recall that content-based restrictions on speech are intensely scrutinized by the courts. If this type of policy is enacted, how likely is it to survive court challenges?


I don’t know if the area where the activity is being prohibited is private or public. But if it’s the former, IMHO the owners have every right to limit any activity they want to. Example: If Joe Schmo wants to walk along the public sidewalk and offer literature to people, fine. It’s public property. If he wants to stand on my front lawn and do so, no, not unless I say it’s o.k. Supermarkets and malls often have “no solicitation” rules. You have to get permission to stand near the door and hand out your political materials or sell your Memorial Day poppies.

So: Is this a public university or a private one?

University of Nebraska at Lincoln is a public state land-grant university.

Based on that, I’d guess it would be even harder to make the prohibition stick unless it could be demonstrated that the activity was in some way endangering the public welfare. Like if the literature being distributed encited to violence and mayhem. IANAL. Just an opinion.

Note that even on publically owned property, you don’t have the right to distribute literature anywhere you like. But some “allowance” is generally required. So at the Atlanta airport (owned by the city), in each concourse there are booths for people to hand out their flyers, but they can’t wander around any other part of the terminals to hand them out.

It used to be that city sidewalks were considered fair game for free speech, but increasingly people are being forced into “free speech zones”. (Named straight out of the “Big Brother guide to Running a Country.”)

So if UNL says you can’t do X at location Y, and some accomadation is allowed “nearby”, then that’s okay with most courts.

But the problem is UNL is only prohibiting a very specific type of X, not all X. It’s the exclusion based on content that I think will get UNL in trouble. I don’t disagree that they can force all pamphleteers into a corner. The question is, can they force only some of them into a corner, based only on the message they are presenting, while letting others roam free?

The first amendment really offers no protection in a case like this. The Constitution only prohibits the government from infringing on speech. Private citizens can infringe away. Perlman, as the “owner” of the stadium, can make any rules he wants banning political speech there.

The only basis for overturning these bans will be if the courts decide that a State University Chancellor is considered to be a government representative in a case like this or if it’s decided that a university stadium is a public place which would place established limits on the rights of its owner. However even those limited rights would usually be broad enough to cover a ban such as the OP described.

State colleges are generally considered government institutions for purposes of first amendment protections.

As noted above, this is a public university, hence an arm of the government. Even if it weren’t, the stadium itself would likely be considered a public place and so the owers private property rights are far more limited than a private owner.

Obviously you can tell people not to stand on your front lawn and pass about flyers, but the owner of a stadium or a shopping mall doesn’t have that kind of unlimited discretion.

As to the public versus private university issue, I can’t remember whether there is an argument that even a private university still gets a huge amount of funding from the federal government and so counts as a government actor for the purpose of the first amendment.

I think Fox Paws has it exactly right, and that UNL almost certainly cannot do this. Not only is UNL excluding speech based on content–which is problematic–they are attempting to exclude political speech, which is the most protected speech under the first amendment.

Precisely. While some governmental restrictions on the time place and manner of speech are allowed if there is a valid governmental interest in doing so, such restrictions must be content-neutral.

Also, even in Nebraska, making it easier for Husker fans to focus on their religion (college football) is not a suffiently compelling governmental interest to warrant even content-neutral time place and manner restrictions.

My only question would be whether the athletic department itself might be considered an entity that is less-than-public in some way.

I don’t know what the funding structure is for U-NL, but at some place the athletic department is self-funding. It gets no general fund dollars (no state appropriation) and pays for the university for athletics scholarships for its recruited athletes from its own budget, as it does for all salaries for coaches, etc.

If they don’t get state appropriation dollars, and don’t get capital outlay funding for athletic facilities, could they argue that they are sufficiently separate from the “public” university to be private? Aren’t college alumni associations often considered private?

Of course, this doesn’t explain why the chancellor (who is a state employee) is handing down the edict, then. But if the athletic department itself were to do it, would it change the standing of the case in any way?

UNL’s athletic department is entirely self-sufficient. I don’t think that changes anything, but I’m certainly no expert (which is why I brought up the question in the first place). I’m not sure how that self-sufficiency translates into property “ownership” of athletic facilities and where the property lines would lie.

A privately owned stadium is free to prohibit the distribution of flyers, as is a privately owned shopping mall.

Just as an anecdotal case along similar lines, a few years ago, Penn State banned signs inside of their basketball stadium based on their content (very critical of the team’s management I believe). They based their decision and defense of this on the fact that the stadium is considered to be quasi-private property as the athletic department is basically self-supporting.

When pushed, they banned all signs (removing the content base), so I don’t believe the issue got challenged. Not much help, but perhaps the quasi-private property line is similar to the thinking of UNL.

Fascinating. No, really. Higher Ed geek here, also a former Nebraskan.

I’m curious about the decision making here. Did this policy get vetted by the General Counsel at UN-L? Did they clear it? Or did they advise against it but the Chancellor went ahead anyway (which probably isn’t that rare)? I don’t expect anyone to be able to answer my musings, but I’m dying to know.

Not necessarily. By opening up his property for the general public for commercial purposes, a property owner is designating his property as a public place and accepting some limits on how he can regulate activities in that property.

Cite, please? (And we’re talking about the First Amendment and speech, so any cites to restaurants, hotels and similar businesses being places of public accomodation for purposes of anti-discrimination law are not relevant.)

I’ll admit that a few states that have applied free speech provisions in their state constititutions beyond what the First Amendment requires. Those few states have placed some limits on what private shopping malls can restrict in terms of picketting, leafleting and similar activities. But the vast majority of states have not done so.


Random, on further research, I think you are right that while certain states have extended free speech protections to private shopping malls–i.e. limited the right of the owner to limit speech–the First Amendment does not apply to or limit what a private shopping mall owner can do–at least not anymore (see below).

This article in Slate does (IMHO anyway) a pretty good job reviewing the relevant case law.

Per this article, certain earlier decisions limited the right of a private owner to restrict free speech, but Court moved away from this view soon after handing down these decisions.

In the 1968 case, Amalgamated Food Employees Union v. Logan Valley Plaza, 391 U.S. 308 (1968), the Court held that the First Amendment limited a private shopping mall’s power to limit free speech. But in 1976, just a few years later, the Court overruled Logan in Hudgens v. NLRB , 391 U.S. 245 (1976)(“We conclude, in short, that under the present state of the law the constitutional guarantee of free expression has no part to play in a case such as this.”)

To get back to the OP though, I still say that (1) the stadium is government property because the school is a state school, (2) that any kind of “independent private property” argument is not going to work, no matter what the byzantine complexity of carefully constructed legal entities because in the end, it is obvious that the property is owned by and controlled by the school (hence it is a school official announcing the decision to restrict leafletting).