University of Hawaii (Hilo): Our students are easily intimidated, need to be protected from people handing out literature

From the University of Hawaii (Hilo) Registered Independent Student Organization Handbook:

When using a public venue, RISOs may not approach people to solicit them. Although we support a diverse intellectual and social atmosphere on campus, we also believe that each person should be able to freely choose whether to listen to your solicitation or not.

And the university seems to be enforcing this, apparently ordering students to stop distributing copies of the Constitution. (“Solicit” here thus doesn’t mean just solicitation of funds, but also covers offering literature; see paragraphs 21-23 of the Complaint in the just-filed Burch v. University of Hawaii.) According to the complaint in a recently filed case, university administrators defended this with the following statements (according to the students’ notes):

The University policy [for events] says that RISOs can’t approach people. We run a diverse campus and people can feel intimidated and it’s like they [the students] can’t say no. We have a free speech zone for students to use and it’s between the theater and new student services building….

This isn’t really the 60’s anymore. People can’t really protest like that anymore, times have really changed since the movement back then….

Well, the Supreme Court has held, in ISKCON v. Lee (1992), that approaching people to hand them leaflets is constitutionally protected even in airports (at least as to the areas before the security checkpoint). Some restrictions on such in-person leafletting in especially congested areas might be permissible, but the UH-Hilo prohibition isn’t so limited.

And the “it’s like [the students] can’t say no” argument is both patronizing and unsound. University students can say no to offered literature just fine. And to the extent that some might accept literature that they don’t really want — perhaps because they feel it’s impolite to just decline it — they can certainly “say no” to reading it.

In any event, this is a pretty clearly unconstitutional policy, and I hope the university will promptly withdraw it in the face of the lawsuit. Bob Corn-Revere, Ronald London, and Lisa Zycherman of Davis Wright Tremaine LLP are representing the student, and the Foundation for Individual Rights in Education has been involved as well. Thanks to Opher Banarie for the pointer.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.



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Eugene Volokh · April 25, 2014