Intellectual Property Law

Political Speech on Public Campuses

By Tim Armstrong, Derek Bambauer, and William McGeveran.

This Chicago Tribune article discusses a controversy at the University of Illinois, which:

has sparked outrage by telling faculty, staff and graduate students that a 5-year-old state law designed to prevent state workers from campaigning for candidates on state time or with state resources meant they could not express support for candidates or parties through pins, T-shirts or bumper stickers while on campus. Nor could they attend any political rally or event on campus, the administration said.

The governor’s Office of Executive Inspector General, which investigates ethical violations, has gone one step further, saying state law meant that university students, not just employees, were prohibited from participating in political rallies on campus–an assertion at odds with the university’s interpretation.

On Friday, the state attorney general’s office said the ethics law did not apply to students. The office did not answer whether the law prohibited university employees from wearing political buttons while at work, attending political rallies on campus on non-work time or some of the other specific interpretations made by the university.

Two thoughts.

First, as a matter of academic freedom it seems obvious that both professors and students must be allowed to express views about electoral politics while they are “on duty” — like, say, in class. The law aims to prevent politics from interfering with the smooth and impartial functioning of government activities. But here, that very function is the promotion of open debate. In this special context, the ban actually harms the government’s mission. (It makes me think more generally about Paul Horwitz’s thoughts on special First Amendment treatment for universities.) I recognize that Illinois, of all states, has had a lot of problems with mixing politics and governmental administration. The law may be a wise one in many contexts — but not here.

Second, I am puzzled by the university’s defense of its heavy-handed announcement: “Tom Hardy, a University of Illinois spokesman, said Thursday that the university only wanted to inform its employees of the law and had no intention of enforcing it.” The university cannot have it both ways. Presumably this announcement chills campus political activity. A subsequent wink indicating that you will not enforce the supposed rules does not cure this chill. Perhaps the administration considers the law wrong-headed but wants to warn employees that other enforcers might try to punish them by using it. If so, then the better memo would say something like: there is this law, which some outsiders might interpret as limiting political speech at the university; we remind you of our own policies about civil discourse on campus and expect you to follow them; if anyone outside the university objects to political activity that adheres to our policies please come see us so we can defend you. Wouldn’t that be great?

Full post as published by Info/Law on October 04, 2008 (boomark / email).