Preliminary injunction sought against University of Houston's new censorship policy

HOUSTON  – The Alliance Defense Fund Law Center, a national public interest law firm, last week filed for a second preliminary injunction to prevent the University of Houston from enforcing another unconstitutionally restrictive speech policy. 

The first injunction came on June 24, 2002, when U.S. District Judge Ewing Werlein, Jr., ruled against the university in favor of a student group called the Pro-Life Cougars.  In the fall of 2001, the University of Houston denied the Pro-Life Cougars permission to put up a display in a public space used by other organizations.  But the group won the first injunction for which it filed, and the display went forward Sept. 3-5, 2002, on the highly-trafficked Butler Plaza.  

Even though the June 24 ruling provided guidance for correcting the university’s unconstitutional pattern of discrimination, school administrators, undeterred, enacted an even more offensive anti-free speech policy.

"The court gave the university a map to arrive at a constitutional policy.  But instead of following directions, the university burned the map and now seems hopelessly lost," said Benjamin W. Bull, the lead attorney on the case and Chief Counsel for the Alliance Defense Fund.  "The university forced us to file against this second speech policy because the university is still censoring speech.  Astonishingly, the second policy bans even more speech than the first."

Shortly after the injunction against enforcement of the original speech policy, on June 25, 2002, the university adopted a second set of regulations, a so-called "Freedom of Expression" policy.   The second policy bans all "expressive activity" by students on most of the campus.  Student signs are prohibited from the entire campus.  "The definition of ‘expressive activity’ includes virtually the entire universe of expression," Bull said, "meaning, the second policy amounts to a flat ban on speech."

In the brief sent last week to federal court in Houston, Bull explained:  "The total ban on ‘expressive activity’ is unconstitutionally overbroad since it is not limited to speech that causes a material and substantial disruption of the educational process, and therefore reaches constitutionally protected expression."

Under the second policy a student member of the Pro-Life Cougars applied on Sept. 16, 2002, for permission to wear a sandwich-board sign and distribute pamphlets on Butler and Cullen plazas.  University administrators, pointing to the second policy, denied the student permission to wear the sandwich board.

The plazas are the most highly trafficked areas on campus.  They are used for a variety of student expressive activities such as pamphlet distribution by Planned Parenthood and the National Organization of Women and cheerleading practice.
     
University of Houston policy is a prior restraint
The new policy requires the Pro-Life Cougars to submit literature to University of Houston administrators for approval before it can be distributed.  There can be no spontaneous distribution of leaflets.  Leaflets or brochures cannot be shared between students without the administration’s permission.  Students are even required to have a copy of the brochure with a stamp of the university's approval with them while passing out literature.  According to the second policy, literature must also be registered each day a student plans to distribute leaflets. 

The university’s misleadingly named "Freedom of Expression" policy also forbids anonymous leafleting.  This means that each piece of literature must be signed by the student distributing the material.  That policy, according to Bull, is an attempt to intimidate politically incorrect speech on campus.

"The right to engage in anonymous pamphleteering is a bedrock principle of the First Amendment," said Bull.  "The government has no business requiring advance review as a condition of leafleting.  The new policy doesn’t even pass the laugh test."

Butler and Cullen plazas are public forums for students and the restrictions on expression are unconstitutionally overbroad.  "To meet constitutional requirements, such speech restrictions must be narrowly tailored to serve a significant government interest, and leave open alternative channels of communication.  These do not," said Bull.

"The judge knocked down the first speech policy, and the university immediately approved a second speech policy that is more overbroad than the first policy.  You have to wonder what the administration is thinking," Bull said. 

Alliance Defense Fund requested an oral argument, but no date has been set yet.