Freedom of Speech

Is controversial speech legal?

Yes. The Constitutional right to free speech as set forth in the First Amendment to the United States Constitution affirms, with few exceptions, the lawfulness of individuals’ and groups’ right to communicate virtually any idea regardless of how widely shared or accepted by others it may be.

Can the university restrict speech on campus?

Yes. However, any restriction must be content-neutral and narrowly tailored to serve a significant government interest. In general, this means that the university can determine the time, place and manner of speech so as to ensure minimal interference with the operation of the college, its provision of services, and people’s access to it.

What are time, place, and manner restrictions and how do they relate to public forum free speech?

The Supreme Court has said that public entities such as the university have discretion in regulating the “time, place, and manner” of speech. As a public entity, partially funded by NYS tax dollars, the university will provide a designated public forum to third parties outside of the Campus Community for their exercise of free speech rights. To comply with existing law, the university recognizes that it will be dedicating its scarce resources to third parties, including staff time for the management of the designated public forum, the cost associated/loss of revenue with the use of space itself, and possibly utilizing University Police and other administrative offices' staff, to provide for the public safety of participants.

In drafting and adopting this policy, the university weighed its competing obligations and responsibilities: to meet its educational mission, to meet its legal obligations as a public entity to provide a designated public forum for free speech by third parties, to meet its audit and control obligations in managing NYS property under its jurisdiction, and to meet its obligations for the orderly and safe operation of its Campus, while responsibly managing and allocating its scarce resources in pursuit of its education mission for its students.

Can the University restrict speech because it is controversial?

No. University policy may not supersede the Constitution. Moreover, restricting any individual’s or group’s speech solely on the basis of it being upsetting, or even demonstrably wrong, jeopardizes everyone’s rights. The laws that assure free speech for neo-Nazis and pornographers also protect the rights of anti-war protesters, civil rights workers, lesbian and gay activists, and others fighting for peace, justice, fairness, and equality.

What is the university’s official position on controversial speech?

The university has a legal, and indeed a moral, obligation to ensure that it protects the free exchange of ideas. The principles of academic freedom demand that all ideas are given a fair opportunity to rise or fall on their own merit; only then can we have any confidence in our own opinions and beliefs. For this reason, the university will remain a neutral venue and provide the same level of safety and respect to all speakers. As Thomas Jefferson said of his own university, "here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it."

What is the university’s response to bigoted or offensive speech?

Buffalo State strives to ensure a safe environment for all constitutionally-protected speech, regardless of its content, and encourages college community members to fully understand their right to free speech under the First Amendment. The university also supports forums and symposia on controversial topics where they can be discussed and debated in an intellectually-stimulating and productive manner.

How should I respond to controversial speech?

Academic freedom and freedom of speech are hard to take sometimes; it is difficult to see and hear things that challenge your personal beliefs and offend the things you cherish. But if academic freedom and freedom of speech are to mean anything, they mean that critics cannot silence that with which they disagree—however strongly they may disagree.

You, alone or as part of a group, have the right to respond to a controversial speaker with protected speech of your own. This includes—but is not limited to—talking, circulating literature, displaying signs, and singing. However, you may not threaten a speaker or commit any violent act against a speaker. Nor may you participate in the creation of a situation in which the speaker cannot be heard.

You also have the right to ignore a controversial speaker – which is sometimes the best way to show your disagreement with their message and deny them the attention they are often seeking.

The following constitutes the “time, place, and manner” policy on the use of facilities owned by Buffalo State University (‘the university’) for peaceable speech and assembly.

REASONS FOR THIS POLICY
As an institution of higher education, the university respects and fully supports the free speech rights granted to individuals under both the First Amendment to the United States Constitution and New York State law.

As a public entity, partially funded by New York State tax dollars, the university will provide a designated public forum to campus constituents and unaffiliated parties for the exercise of free speech rights. To comply with existing law, the university recognizes that it will dedicate its resources to this effort—including staff time for the management of the designated public forum, the costs or lost revenue associated with the use of space itself, and possible use of University Police and other administrative office staff—to provide for the public safety of participants.

In drafting and adopting this policy, the university weighed its competing obligations and responsibilities to meet its educational mission; its obligations as a public entity to provide a designated public forum; its audit and control obligations in managing New York State property under SUNY jurisdiction; and its obligations for the orderly and safe operation of its campus, while responsibly managing and allocating its scarce resources in pursuit of its educational mission for students.

POLICY APPLICATION
This policy shall apply to all campus constituents (faculty, students and staff) and to unaffiliated parties who seek to use facilities designated as public forum for the purposes of peaceable speech and assembly. Use of additional university facilities for other purposes is governed by these three Buffalo State University policies: Facility Use Policy, Short Term Facilities Use Policy, and Compensation for Facilities Use Policy.

For information on requesting use of other university facilities, please contact the Events Management Office.

All use of facilities must comply with SUNY Rules for the Maintenance of Public Order, adopted in accordance with Education Law Section 6430 and 8 NYCRR 535, as well as all other applicable university rules, policies, and procedures

The use of the designated public forum may be requested for up to a four-hour time block between the hours of 8:30 a.m. and 4:30 p.m. during the academic year, and between the hours of 8:00 a.m. and 4:00 p.m. during the summer if the space is available and it is not during an exclusion period.

Exclusion Periods

The university has excluded certain periods on its calendar during which the use of the campus and its facilities, including outdoor spaces, is reserved exclusively for campus-related activities that are at the core of its primary educational mission. During these exclusion periods, use of all public forums shall be largely curtailed so as not to interfere with core, mission-centric programming. The university defines the exclusion periods to include the following:

1. During opening activities at the beginning of the fall and spring semesters
2. During evaluation and final examination periods as set forth on the academic calendar
3. During graduation-related activities and events, including commencement
4. During major fall or spring campus-wide celebrations including, but not limited to, concerts, orientations, open houses, Homecoming and other alumni-related celebrations, and programs with a focus toward high school students
5. During the summer when overnight and day camps and orientation programs take place
6. During other times when the President determines that such declaration is in the best interests of the university community, such as a public health emergency

Questions about the dates of these exclusion periods may be addressed to the Events Management Office.

Designated Public Forum

The university identifies the following areas as its designated public forums:

1. The Elmwood Avenue sidewalk between Iroquois Drive and the southern side of the Burchfield Penney Art Center
2. The Grant Street sidewalk commencing at Rockwell Road and ending at Iroquois Drive
3. The Perry Quad
4. The north and south ends of the Plaza, only during Bengal Pause (Tuesdays and Thursdays from 12:15 p.m. to 1:30 p.m.) when no other event have been reserved for this venue. The Plaza is bound by Campbell Student Union, Bulger Communication Center, Butler Library and Cleveland Hall.

The university has identified these spaces for its designated public forums because they are highly pedestrian-trafficked areas on the Buffalo State campus which regularly are used by students, faculty, staff, and visitors. The use of these designated spaces will balance speakers’ ability to communicate their message with the university’s need to minimize interference with classroom instruction or residential facilities. Users of the public forums cannot obstruct the entrance to any of the surrounding buildings or obstruct the free movement of other individuals. The President or designee shall have the authority to change, either permanently or temporarily, the location of the designated public forums to other areas of the campus to address concerns for the health, safety, and welfare of the campus community, as well as to address specific peaceable speech and assembly concerns of any person or group.

Campus Constituents are faculty or staff members currently employed by Buffalo State University; and students currently enrolled at Buffalo State.

Unaffiliated Party means a person(s) or organization requesting to use the designated public forum who is not currently a student, faculty or staff member at the university, and who is not officially sponsored by either the university or a registered student group to speak at the university.

The university is providing a designated public forum for use by campus constituents and unaffiliated parties for peaceable speech and assembly.

Reservations for, and Recordkeeping about, the Use of Space

Parties who seek to use the designated public forum should:

1. Complete a designated public forum application

2. File the application with the Events Management Office, allowing enough time for the university to respond to your application: The university will respond no later than the close of business on the third business day after the application is received. The applicant assumes responsibility for proper delivery of the application to the Events Management Office in a timely manner. The office is open from 8:45 a.m. to 4:45 p.m., Monday through Friday, except for holidays and certain exclusion periods as previously noted. Applications may also be submitted via email to eventmgt@buffalostate.edu.

3. The university shall review the application and respond to the applicant no later than the close of business on the third business day after the application is received.

a. If the application is fully completed and signed by the applicant and the date and time is available for use, the university shall inform the applicant of its approval to use the designated forum on the date and time so requested.

b. If the application is not complete and/or it is not signed, the university will likely return the application to the applicant for completion. The three (3) business days’ time period will begin again once the completed and signed application is received by the Events Management Office.

c. If the space is already reserved to its capacity for the date and time requested, or if the date and time requested is during an exclusion period as previously noted, the university shall inform the applicant of the same and offer the applicant the next available date and time for the use of the space.

d. In addition to the conduct specified in the Board of Trustees' policy section 535.3, no amplification will be permitted.

e. Dangerous instruments as defined by NYS Penal Law, including but not limited to poles, flag poles, bats and other similar athletic items, clubs, sticks (including sticks used to hold signs) are not permitted. Use of Facilities as a Public Forum (Policy on)

The university shall not:

1. Inquire as the purpose or content of the speech or assembly

2. Charge the applicant an application fee to reserve the designated public forum

3. Charge the applicant/third party for the use of the space

4. Impose insurance requirements on the applicant/unaffiliated party

5. Charge the applicant for any additional costs to the university that the university may incur due to the use of the space by the applicant/unaffiliated party, such as security

All groups or individuals wishing to leaflet, hand out or otherwise distribute noncommercial written or printed materials on campus must comply with campus posting policies. The applicant shall be responsible for removing from the designated public forum any brochures, pamphlets, leaflets, or other handouts or any items brought to the forum during their speech and assembly and removing them from the campus or properly disposing of them in public recycling or garbage receptacles.

Posting of written and printed materials on vehicles without the owners’ permission is not permitted. Failure to comply with this provision may result in future denial of use of the designated public forum.

Chalking is limited to the use of water-soluble chalk (sidewalk chalk). The use of markers, paints, oil-based products, non-soluble products, and spray chalks are prohibited. Chalking is permitted only on horizontal (flat) sidewalks that are open to the elements (i.e., sidewalk that is not covered by a roof or overhang). Chalking is prohibited on all vertical surfaces and all non-sidewalk surfaces, both inside and outside. Temporary structures, including tents and stages, must receive prior written approval from the Events Management Office and comply with Environmental Health and Safety regulations.

The university reserves the right to terminate any use of the designated public forum in the event either the speaker or a member(s) of an audience engages in conduct that violates the SUNY Rules for the Maintenance of Public Order, or other applicable laws, rules, policies, or procedures, in order to secure the orderly operation of the Campus for the safety of the entire Campus Community.