New UW-Madison protest policy ‘clearly unconstitutional,’ free speech expert says (2024)

The University of Wisconsin-Madison’s new protest policy may be unconstitutional, a constitutional law expert told The Daily Cardinal Thursday.

UW-Madison updated its protest policy Wednesday to include restrictions on “expressive activity” within 25 feet of university facility entrances, size limitations for signs in buildings, specific sound amplification restrictions and restrictions on protest activity during select times on campus areas.

Although the policy isn't trying to limit “individuals speaking directly to one another" such as conversation, free speech and constitutional law expert Howard Schweber said a conversation between friends, the distribution of newspapers or pamphlets, singing or wearing political merchandise could all be prohibited within 25 feet of UW-Madison facility entrances.

Schweber said the university limiting “expressive activity” within 25 feet of building entrances is “extremely problematic, clearly unconstitutional” and “begging to invite some judge to strike them down.”

In a statement to the Cardinal, UW-Madison spokesperson John Lucas said the university worked with legal counsel to protect free expression and meet legal requirements.

“While we respect that there can be differences of opinion in the complicated area of freedom of expression, we believe that we have crafted a policy that complies with both the Constitution and the First Amendment, as well as helping us meet our obligations under Title VI,” Lucas said.

UW-Madison defines “expressive activity” as activities protected by the First Amendment including “speech, lawful assembly, protesting, distributing literature and chalking” in its updated policy.

“This rule suffers from massive overbreadth. It covers an enormous and almost incalculable amount of First Amendment-protected expression in ways that have nothing to do with ensuring access to university buildings,” Schweber said.

Under section 2 D of UW 6013, expressive activity, including protest within 25 feet of UW-Madison building entrances, is the focus of limitations, but the rule does not explicitly protect other forms of free speech.

“In the First Amendment context, we usually distinguish between speech and expressive conduct. You can have rules limiting expressive conduct that go much farther than rules that are allowed to restrict actual speech. But this rule applies to actual, what's called pure speech — people talking,” Schweber said.

UW-Madison is allowed reasonable “time, place and manner restrictions” on free speech and protests, but Schweber said the vagueness of Section D makes it impossible “for students and others to have any idea what is and is not allowed” within 25 feet of UW-Madison buildings.

UW-6013 Section 2 DII also gives the UW-Madison Police Department the ability to increase the mandatory distance where expressive activity is banned beyond 25 feet to “allow access to university property or to protect the safety of individuals or university property.”

“That means UWPD can literally shut down Bascom and Library Mall completely on the basis that something is happening that they think threatens some piece of property,” Schweber said. “That's a remarkable and excessive authority to constrain First Amendment protected expression without anything like an adequate justification.”

Section 2 F of UW 6013 prevents obstruction to university buildings, a plausible goal of Section D, according to Schweber. Lucas confirmed the goal of Section 2 D was to ensure building access and “to keep passageways clear.”

Schweber said this makes Section 2 D even harder to defend because it is not the “most narrowly restrictive means” to prevent obstruction of university buildings.

“I think that's a perfect illustration of how if you write a rule carelessly, a perfectly legitimate policy goal can lead to absurd results,” Schweber said.

Lucas said the intent of the new Expressive Activity Policy was to “help students, employees and campus visitors better understand their rights and responsibilities.”

When asked about possible restrictions in the 25-foot zone, including the distribution of newspapers or singing, Lucas said “the policy recognizes that engaging in expressive activities is a fundamental part of the student experience and outlines reasonable time, place, and manner restrictions, such as the 25-foot restriction, that work in tandem to help prevent concerted activities from obstructing or interfering with campus operations.”

The ACLU of Wisconsin did not respond to an initial request for comment when asked about the constitutionality of the new Expressive Activity policy.

Student newspaper distribution raises concerns over viewpoint discrimination

Distribution of the Cardinal and The Badger Herald, which currently occurs at newsstands near UW-Madison facility entrances, is an example of expressive activity currently banned by this rule, Schweber said. Lucas did not immediately comment on whether distribution of campus newspapers could continue within the 25-foot zone and later said it was clear that the policy would not prevent the distribution of newspapers or conversation “inside buildings.”

“One of the problems of the rules like this is that, if you're the university police, you're going to say, ‘look, we're not going to apply this rule in a stupid way, we're not going to prevent people from distributing The Daily Cardinal, we're only going to prevent people from distributing leaflets that say, ‘Hunter Biden belongs in prison,’” Schweber said. “But that becomes a viewpoint discrimination. You're not allowed to have rules like this and apply them only against certain expressions and not others.”

UW-Madison must enforce protest policies in a “content neutral” manner, meaning they cannot distinguish how they enforce restrictions on speech based on the content.

Schweber said in order for the policy to be enforced in a neutral manner, the university must place a ban on student newspapers and “every other printed material within that 25-foot radius.”

Schweber said “chilling effects” can occur when limitations on free expression are too vague, such as this policy. Chilling effects refer to unintended over-deterrence of free speech, including by self-censorship.

“In order to avoid getting into trouble, people engage in self censorship,” Schweber said. “To avoid getting into trouble, the smart thing to do is just stop talking when you get within 25 feet of an entrance, which is neither the intention of the rule, nor an acceptable rule, if that were the intention of it in the first place.”

The past, future

The recent protest restrictions followed active pro-Palestine protests in the spring, including during a 12-day encampment on Library Mall.

“Universities have gotten in trouble last year, both for suppressing pro-Palestinian speech and for suppressing pro-Israel speech, so it can get complicated,” Schweber said. “The thing a university has to do is keep sight of basic First Amendment and academic freedom principles.”

A group of UW-Madison students facing disciplinary proceedings for their role in the pro-Palestine encampment previously shared a statement with the Cardinal accusing UW-Madison of attempting to “silence students and staff who have stood in solidarity with Palestine” in their efforts to penalize protesters.

Indiana University Bloomington enacted similar restrictions on expressive activity, including restrictions on expressive activity between 11 p.m. and 6 a.m. The ACLU of Indiana filed a lawsuit challenging the policy Thursday.

Editor’s Note: This article was updated on Aug. 31 at 12:15 p.m. to add additional comment from UW-Madison.