College campuses are alive with activism. Recent weeks have seen students assemble on quads and in academic buildings to condemn racism, debate free-expression principles, make demands of administrators—and, in many cases, try to place restrictions on journalists trying to document these protests, or turn them away entirely.
The best-known of these encounters happened at the University of Missouri, where student activists and sympathetic university employees were captured on video interfering with a photographer as he tried to shoot protests on the campus quad. In that instance, journalists had a clear right of access.
But as other reports have emerged around the country, I’ve realized that Mizzou presented the easy case, because the quad there is a traditional public forum. Other cases are less clear-cut, even on public campuses. Consider these recent examples…
- Student activists at Smith College, the private women’s liberal-arts school, barred journalists from a sit in at the student center that drew more than 300 people, who came out to show solidarity with activists at Mizzou. One of the Smith student organizers reportedly said, “We are asking that any journalists … that cover our story participate and articulate their solidarity with black students and students of color.” Otherwise, the journalists weren’t welcome. A college spokeswoman said at first that Smith respected the students’ “right” to bar journalists even though it “poses problems for the traditional media”; the spokeswoman later said that Smith “does not support a ban on media” but “does support the students’ right to set the rules for their own event.” She added that the college planned to review its media-access policies.
- At the University of Kansas, a public university where I teach First Amendment law, a group of student activists called Rock Chalk Invisible Hawk presented to administrators a list of inclusion-related demands. Later, the group announced a news conference to take place in the student union and said in a written statement: “…media will be given 30 minutes for questions, and a maximum of 4 questions per media outlet. If questions posed are deemed inappropriate, detrimental or intended to defame RCIH, at our discretion you will be asked to leave, and/or not allowed to continue with us in the interview process.”
- Officials at Emporia State University kicked journalists out of a forum on race and inclusion. The university had planned and publicized it, but when students said they were discomfited by the media’s presence, an official asked journalists to leave. A spokeswoman later said a “miscommunication” was to blame, because some students “had been told media would not be present.” Journalists were able to reenter after the university attorney weighed in and said the event was a public forum. Later, the spokeswoman said, “Obviously, we fully support the First Amendment… On the other hand, we need and want our students to feel safe to express their concerns.” The Wichita Eagle reported that school officials also acknowledged that by excluding the journalists they “likely violated… Kansas open meetings laws.”
One thread in all these cases is activists’ distrust of the institutional press—a distrust that stems, in part, from a history in which media outlets have not always covered minority communities fully or fairly. That’s an important discussion in its own right.
But I’ll focus here on legal questions regarding the right of access to college and university campuses—and while I’m not in a position to analyze these cases with certainty, based on what’s been reported, I can offer some general comments about the issues they bring to the fore.
First, the Smith case raises the right of access to a private college’s campus. Generally, private schools have policies that allow the public to use their outdoor areas and some buildings during normal business hours. That allows the school to maintain meaningful ties to its community. But that kind of policy is always subject to restrictions (e.g., no trespassing in certain buildings or areas). Moreover, the school can deny access to individuals and groups that want to use a space already reserved for another’s use, and it can issue trespass notices to individuals for various reasons.
All of which is to say: Private schools generally, as the owner of their premises and buildings, have the legal right and obligation to control access to their campuses. Students at these schools, unless they have rented the space they are using and thus enjoy tenancy rights, do not have the authority to bar journalists from campus spaces. But schools generally may bar journalists.
That gets a bit more complicated, though, if the journalists are also students. “I don’t think I’d advise a student with a large TV camera on his shoulder to keep filming in direct defiance of a [vacate order], in reliance on his status as a registered student,” says Frank LoMonte, executive director of the Student Press Law Center. “But if the student is lawfully on the premises to transact business as a student, the college would be hard-pressed to eject him … based on fears that he’ll go into newsgathering mode. It’s easier to declare someone a trespasser if his presence … is purely a matter of grace, [while] a student is a paying customer who also has a business need to use the premises.”
Meanwhile, the two Kansas incidents—at KU and Emporia State—raise the right of access to a public university’s campus. Such places are open to the general public, but school officials can set the expectations for an individual’s presence there. That means they can impose reasonable time, place, and manner restrictions on First Amendment activities that occur on campus, and they can restrict an individual’s access if he violates university policies or poses a risk to campus safety.
Keep in mind also that the public can access only certain areas of a public campus, for certain purposes: Places like the quad at Mizzou may be public forums, but academics buildings are not wholly open. Further, if the university uses some of its rooms for non-school meetings that are open to the general public, those rooms, at those times, may be treated as public forums.
And, sometimes, a group using a space on a public campus does have the authority to set these rules. For example, a group that rents a room for a news conference typically enjoys tenancy rights and the corresponding ability to control access to it. That may apply in the case involving Rock Chalk Invisible Hawk, according to my understanding of events.
But that wasn’t the case at Emporia State, where the town-hall meeting probably did constitute a public forum—and, as officials have acknowledged, it was improper under the First Amendment to keep journalists away. It’s also worth noting, though, that with some exceptions, bars on town-hall meetings do not usually amount to violations of state open-meetings laws.
“The meeting must typically be one involving members of a decision-making body coming together to deliberate,” LoMonte said, adding that that’s not the case at most town-hall meetings.
For a wider lens on the press’s rights to cover assembly activities, including tips on how to avoid or manage confrontations with the police, see this primer that the SPLC released last week or this one that I published during the first round of Ferguson protests.Jonathan Peters is CJR’s press freedom correspondent. He is a media law professor at the University of Georgia, with posts in the Grady College of Journalism and Mass Communication and the School of Law. Peters has blogged on free expression for the Harvard Law & Policy Review, and he has written for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters.