OU’s protest policy may be constitutional, but it’s still wrong.
Apparently dissatisfied with the fact that the #Bobcat70 protesters could not be punished for the legitimate exercise of their First Amendment rights, Ohio University has attempted, with one broad stroke, to prevent any inkling of protest or dissent inside a university building ever again. Like a petulant child upset that it couldn’t get its way, OU looks foolish in its overreaction.
In the wake of these two new policies, one of which is ironically titled “Freedom of Expression,” two questions are presented: first, is this something OU can do? Second, is it something it should? The answer to the first question is maybe, but the answer to the second is a resounding, emphatic “no.”
The first question — the legal one — is not easily answered, even with a “maybe.” Michael Mayberry, one of the #Bobcat70 protesters, was found not guilty at trial because the Baker Center rotunda was a “designated public forum,” a legal term of art that treats a space exactly as if it were a public park or a sidewalk: somewhere your First Amendment rights apply in full form, full stop. Once a designated public forum exists, however, there are conflicting answers from courts about whether it can be closed, how, and for what reasons.
So OU may, legally, be able to do exactly what it has done. However, it should not close the forum and prohibit protests. Although the school may be acting within the letter of the law, it is certainly not acting within the spirit. Prohibiting “[d]emonstrations, rallies, public speech-making, picketing, sit-ins, marches, protests, and similar assemblies,” as the new policy does, ignores the importance of protest at OU.
Protest has a history in Athens, Ohio, and the free exchange of ideas — even, and perhaps especially, through peaceful protest — is nowhere more important than on a college campus. It isn’t entirely clear why a peaceful protest of a racist executive order was OU’s breaking point, when it has allowed other sit-ins and rallies for years. When I was an OU student, I participated in several protests inside of university buildings.
Here, another question arises: what type of sit-in or protest is prohibited? I participated in a “study-in” in Cutler Hall to protest a proposed tuition increase. We all sat down in the hallway outside of the President’s office, quietly doing homework. With the new policy, would our political message have transformed a quiet and creatively-located group study session into a prohibited protest? Would we have been subject to disciplinary action through the Community Standards office, or even arrest for trespassing, as the #Bobcat70 illegally faced?
There is no good answer here. The policy is simply too broad. It affords OU administrators too much discretion to shut down a “study-in” with which they disagree, while leaving another “study-in” undisturbed. I hope that is the policy’s death knell, but I fear that OU will do what it can, rather than what it should. Any students who rightfully choose to protest this unfair policy should take care to do so outside.