Western Mass. ACLU finds University soliciting policy unconstitutional
Also see: The ACLU’s letter to Edward Hull
At the request of Student Government Association Attorney General Kyle Howard, the Western Massachusetts chapter of the individual rights organization the American Civil Liberties Union has reviewed the University of Massachusetts’ soliciting policy and found numerous aspects of it to be in violation of the United States Constitution.
In a letter addressed to Director of Residence Life Edward Hull and forwarded to numerous campus officials, William C. Newman, director of the Springfield-based chapter of the ACLU, wrote that “the policy contains numerous unconstitutional provisions.”
The letter first outlines what the University defines as solicitation, including “going door-to-door or using common areas of University residence halls or apartments…to campaign for election [or] gather information (e.g. surveys or polling) or distribute information in and around University residences,” and then details various forms of soliciting the University policy bars, including “requesting contributions, or sales, or demonstrations that result in sales; distributing advertising or other material; collecting donations for charity or other organizations; compiling data for surveys, programs or other purposes; recruitment of members for an organization; requesting support for an organization or cause; and door-to-door campaigning for an election.” Newman then addresses what he finds to be the unconstitutionality of the policy, specifically stipulating that the policy impedes on the basic First Amendment right of free speech and free organization.
“The violations of the state and federal constitutional guarantees of free speech and assembly, I would urge, are clear, and for such policies to actually be adopted by a University is deeply disturbing,” Newman wrote. “The policy is an anathema to the principles of the University – dedicated presumably to the sharing of ideas.
“Door-to-door solicitation for charitable and religious work and canvassing, opinion gathering and other types of political work has been constitutionally protected for many decades. Yet the University has adopted this policy that contains a blanket prohibition against such First Amendment protected activity,” Newman wrote.
From there, the letter to the campus leaders outlines how another element of the policy, the right to canvas and distribute information with the approval of the Residence Life Director, Apartments Manager or a designee, is also unconstitutional, as it creates what is known in legal language as prior restraint.
“This provision is a text-book example of an unconstitutional prior restraint. To begin with, the right to solicit door-to-door is well established,” Newman wrote. “As the Supreme Judicial Court of Massachusetts noted in Walker v. Georgetown Housing Authority…‘The [United States] Supreme Court’s position on local regulations banning door-to-door campaigning and solicitation leaves no room for doubt. ‘Freedom to distribute information to every citizen wherever he desires to receive it is so clearly vital to the preservation of a free society that…it must be fully preserved.’”
Calling the policy “mindboggling,” Newman wrote to Hull that mandating that individuals seeking to distribute information in campus residences gain approval from Residence Life officials creates the possibility for favoritism among groups and gives such officials undue power in determining who has the right to free speech and organization. Quoting the Supreme Court ruling in the case of Watchtower Bible and Tract Soc. of N.Y., Inc., v. Village of Stratton, Newman noted that the court wrote such a requirement is “a dramatic departure from our national heritage and constitutional tradition.”
Further still, Newman elaborated, the organization found that the policy is again unconstitutional as it establishes no avenue through which students seeking to flyer or solicit can contact residence life officials and provides no roadmap of how the approval process should operate.
“Even more troubling, perhaps, than the policy’s constitutionally impermissible vagueness, and its requirement of illegal prior restraints is the requirement of permission for door-to-door distribution being subject to approval or disapproval by a designated authority without any rules or regulations to govern that approval process,” Newman wrote.
Although Howard indicated that the University is debating implementing an “opt-in” policy allowing students to post signs on their doors indicating they are open to receiving flyers, literature or other information from various organizations, similarly to how individuals can place “no soliciting” signs on their doors opting out of being solicited for causes, the Western Mass. ACLU found that enacting a blanket policy barring soliciting is implicitly unconstitutional, regardless of allowing such an opt-in clause, as it infringes on individuals’ and groups’ free speech rights.
Citing the case Turner Broadcasting System, Inc. v. F.C.C., Newman quoted the Court’s ruling, which found that governments “may not cut off access to homes whose residents are willing to hear what the solicitors have to say.”
In addition, the ACLU found the University’s policy allowing Registered Student Organizations and campus groups to distribute information in campus residences to be unconstitutional, as it grants selective groups special privileges.
“It appears that the University is granting to itself the right to post such information (assuming the words ‘campus offices’ are understood by everyone, which may or may not be true). In any event, the University is now attempting to restrict this previously designated or limited public forum, and it is not at all clear that the University has established the factual predicate for imposition of such restrictions at this time,” Newman wrote.
Because the University allows its own entities, like campus offices and student groups, to post information, but not independent groups, and because there is a requirement for approval from unspecified residence life officials, the ACLU feels such policies “permit, if not invite, infringement on the free speech rights of members of the University community and endorse content based decision-making and permission granting.”
The organization, Newman wrote, “would urge [Hull] to suspend any enforcement of these policies immediately and implement an appropriate process to rewrite them.” Although he made no specific reference as to what the ACLU would do were the University not to revise its policies, he wrote that “I am asking for you to respond to this letter not later than five working days from receipt.”
Despite the ACLU’s letter, Hull, the Residence Life director, wrote in an email to the Collegian that his office plans no immediate changes to the policy.
“This strategy is nothing new,” Hull wrote. “Calling something unconstitutional is an argument that gets dragged out from time to time…. but claiming something is unconstitutional doesn’t mean it is.”
Although Hull said there are no plans to revise the policy at the moment, a group composed of members of the Student Government Association and Residence Life officials had already been formed last year to consider the matter at Hull’s request.
“I have not received the group’s recommendations yet,” Hull said. “I expect to receive something from them soon.”
According to Howard, who sits on the student group reviewing the solicitation policy as an SGA representative, the group’s proposed changes will be given to Hull Friday morning.
“[We’re] wrapping up the process now,” said Howard in a phone interview. Although Howard said he could not elaborate on the details of what the group’s findings are thus far because the body’s final meeting is Wednesday and “anything could change by then,” he did say the policy was looking to allow for door-to-door solicitation by students “on a limited basis.”
“Limited basis meaning, allowing for communication but still providing safety and privacy in the dorms,” he said.
Howard also said that throughout the review process, the group had been informed that Hull “has been gathering input from various sources on campus” and that “student input is just one” of those sources.
Howard said he brought the solicitation policy to the attention of the ACLU last November because he felt there “were definitely some serious First Amendment implications in the policy.”
“I think in an academic community, where the free-flowing of ideas is so important, a policy like this that restricts communication has no place here,” said Howard.
“Right now, the 200-plus RSOs and all the student businesses on campus are not allowed to go into dorms to speak with fellow students about the issues they are working on,” he said. “If an organization wanted to raise money for breast cancer research they would essentially be punished for going and knocking on people’s doors in the dorms.”
Howard said his committee reviewing the proposal was “not exactly focusing” on the constitutionality of the policy, and that “without lawyers we can only do so much.” He said Brian Burke, the University’s associate counsel, would likely be an integral part of future reviews on the proposal with Hull.
“I just hope that Hull will take the letter that the ACLU sent him and he’ll sit with Brian Burke and get his opinion on it as well,” said Howard. “Again, I’m not a lawyer, but I think the ACLU definitely has expertise in this area and I think it’s important that what they say is taken into consideration.”
“The ACLU definitely thinks there is something unconstitutional about the policy, and I’m definitely inclined to believe them,” he continued.
Sam Butterfield can be reached at firstname.lastname@example.org. Alyssa Creamer can be reached at email@example.com.