Expressive Activity; Free Speech

1260.1 Policy

Statement.

All persons within the United States enjoy the right to think freely, discuss or debate any idea, speak and publish their views and opinions, participate in religious or conscience observances, and freely assemble or associate with others of their choice. It is the policy of Wright State University to respect those rights within constitutionally-permissible limitations, as set forth in this Policy. 

Scope; Exceptions. 

Section 1260.3 of this Policy does not apply to course-related speech or expressive activity in the classroom. 

Section 1260.3 of this Policy does not apply to commercial rentals.  

Principles of Free Speech. 

In accordance with Ohio Revised Code 3345.0215, Wright State University affirms the following principles of free speech, which are the public policy of the state: 

1. Students have a fundamental constitutional right to free speech. 

2. A state institution of higher education shall be committed to giving students broad latitude to speak, write, listen, challenge, learn, and discuss any issue, subject to this Policy. 

3. A state institution of higher education shall be committed to maintaining a campus as a marketplace of ideas for all students and all faculty in which the free exchange of ideas is not to be suppressed because the ideas put forth are thought by some or even by most members of the institution's community to be offensive, unwise, immoral, indecent, disagreeable, conservative, liberal, traditional, radical, or wrong-headed. 

4. It is for a state institution of higher education's individual students and faculty to make judgments about ideas for themselves, and to act on those judgments not by seeking to suppress free speech, but by openly and vigorously contesting the ideas that they oppose. 

5. It is not the proper role of a state institution of higher education to attempt to shield individuals from free speech, including ideas and opinions they find offensive, unwise, immoral, indecent, disagreeable, conservative, liberal, traditional, radical, or wrong-headed. 

6. Although a state institution of higher education should greatly value civility and mutual respect, concerns about civility and mutual respect shall never be used by an institution as a justification for closing off the discussion of ideas, however offensive, unwise, immoral, indecent, disagreeable, conservative, liberal, traditional, radical, or wrong-headed those ideas may be to some students or faculty. 

7. Although all students and all faculty are free to state their own views about and contest the views expressed on campus, and to state their own views about and contest speakers who are invited to express their views on the campus of a state institution of higher education, they may not substantially obstruct or otherwise substantially interfere with the freedom of others to express views they reject or even loathe. To this end, a state institution of higher education has a responsibility to promote a lively and fearless freedom of debate and deliberation and protect that freedom. 

8. A state institution of higher education shall be committed to providing an atmosphere that is most conducive to speculation, experimentation, and creation by all students and all faculty, who shall always remain free to inquire, to study and to evaluate, and to gain new understanding.

9. The primary responsibility of faculty is to engage an honest, courageous, and persistent effort to search out and communicate the truth that lies in the areas of their competence.

1260.2 Restrictions on Expressive Activity

Unprotected Speech.

The University reserves authority to prohibit or restrict speech and expressive conduct that is not constitutionally protected. By way of example, unprotected speech may include speech or expressive conduct that is: obscene (but not merely sexual), “fighting words,” “true threats,” fraudulent, defamatory, advocating imminent lawlessness, and unlawful harassment. Speech may be constitutionally protected even though it is (or may be considered by some to be extreme, indecent, offensive (including “hate speech”), controversial, “wrong,” sexual, or even shocking.

Protected Speech Restrictions.

When necessary to serve a significant institutional interest, the University may institute reasonable, viewpoint-neutral restrictions or requirements upon otherwise protected speech or expressive conduct. Those measures are permissible only when enforced according to clear, published, viewpoint- and content-neutral criteria, and provide ample alternative means for speech or expressive conduct, and allow for students and employees of the University to engage in spontaneous / contemporaneous assembly and distribution of literature. The following is a non-exhaustive list of speech and expressive conduct restrictions or requirements that may be constitutionally acceptable:

• Viewpoint-neutral limitations on the time, place, and manner of speech or expressive conduct. Example: the University may restrict the use of bonfires during assemblies.
• Viewpoint-neutral limitations on the speech or expressive conduct that is permitted in nonpublic forums. Example: the University may prohibit speech or expressive activity within administrative offices.
• Viewpoint-neutral limitations on the use of University property, when instituted for the purpose of protecting the free speech or expressive conduct rights of others. Example: the University may close a particular area to public speech or expressive conduct when the area has been reserved for the speech or expressive conduct of a particular person or entity.
• Viewpoint-neutral limitations on the use of University property, when instituted for the purpose of preserving the property’s availability for official University activities. Example: the University may prohibit public speech or expressive activity in classrooms that are being used for instruction.
• Limitations on otherwise protected speech or expressive conduct that are reasonable, viewpoint-neutral, and related to legitimate pedagogical purposes. Example: the University (or individual faculty members) may adopt classroom rules against speaking out-of-turn, or prohibiting speech or discussions that are not germane to the subject of instruction. (But otherwise germane and constitutionally protected statements, ideas, or discussions may not be prohibited in the classroom merely because they may be unpopular, controversial, and so forth.)

Consultation with Counsel.

University personnel will consult with the Office of General Counsel before restricting speech or expressive activity except in the case of a legitimate emergency involving an immediate threat of physical harm to a person, or substantial damage to property. Faculty are encouraged to consult with counsel before instituting classroom rules pursuant to the preceding section, but are not required to do so unless the rule (or its application) is new or unusual.

"Official" and "Private" Speech; Disclaimers.

University employees may not speak or engage in other expressive conduct in an "official" capacity (as an agent of the school, speaking or acting on its behalf) unless authorized by an administrator at the rank of Vice President, Vice Provost, or above.

This section does not prohibit University employees from speaking or engaging in other expressive conduct in a "private" capacity (as a private citizen, acting for themselves or an organization other than the University), as otherwise permitted by applicable laws and policies. If there is a reasonable probability for others to mistakenly believe that an employee is speaking or acting in their official capacity, the employee will take appropriate steps to clarify that they are acting in their private capacity, including making or displaying the following statement (or words to that effect):

These views or opinions are my own, and do not necessarily represent the views or opinions of my employer.

The following is a non-exhaustive list of behaviors that may often (but not necessarily always) create such confusion:

• Identifying oneself as a Wright State University employee. (Note: referring to oneself as an employee of "a public research university" or similar non-specific descriptions are generally not objectionable.
• Wearing Wright State University-branded apparel, or displaying Wright State University logos or marks.
• Engaging in private speech or expressive activity during one's official duty hours, or using the University’s property, personnel, or resources to facilitate one’s private speech. (Note: Most public outdoor areas of campus are generally available for private speech or expressive conduct during daylight hours, but other areas—e.g. lobbies, corridors, commercial and event spaces, offices, laboratories, classrooms, and residence halls—are not. See Policy No. 1260.3(B).

1260.3 Expressive Conduct on University Premises

Official Use. 

All University Premises are principally dedicated to Official Use, and such use takes priority over all other proposed uses. For the avoidance of doubt, “Official Use” includes but is not limited to teaching, research, service, performance of administrative services related to University operations, officially-sponsored University events (e.g. meetings of student organizations recognized by the Office of Student Affairs, student activities approved by the Office of Student Involvement and Leadership), and commercial rentals.  

Unofficial Use by University Students, Employees, and Officially Affiliated Groups. 

Subject to exceptions below, University Premises that are not in or reserved for Official Use are available for noncommercial Speech by University students, employees, and officially-affiliated groups. Members of the public and persons/groups that are not officially affiliated with the University are not eligible for or entitled to Unofficial Use of University Premises. 

This Section does not permit Unofficial Use of: 

• Residential housing units (dormitories, apartments, and interior common areas of residential facilities). 

• Offices, laboratories, and similar work areas. 

• Office suites and common areas (e.g. office kitchenettes) assigned to or accessible by particular personnel or units. 

• Atriums, foyers, corridors, stairways and elevators, restrooms, and similar interior common areas of buildings.  

• Retail spaces (e.g. food service and food preparation areas, shops), customer service areas (e.g. intake and waiting rooms). 

• Commercial rentals; areas for which a Space Reservation has been issued (except by the recipient of that Space Reservation).  

• Roadways and parking lots/facilities.  

• University Premises that are “closed,” outside of their regular operating hours, or during evening/nighttime hours (for facilities that are open continuously or have no posted operating hours).  

• Areas that the University determines to be unsafe or unsuitable for Unofficial Use (e.g. mechanical areas, rooftops, chemical storage).  

Public Use. 

Subject to exceptions below, all publicly-accessible outdoor areas of University Premises are available during daylight hours (or during the operating hours of the relevant area, whichever is shorter) for noncommercial speech by any person or organization, including but not limited to members of the public. Such use shall be on a space-available, first-come first-served basis. No permit or space reservation is required, except as required elsewhere in this Section. 

Public Use is not permitted in any indoor areas, which are reserved at all times for Official Use and Unofficial Use by University-affiliated persons and organizations. Additionally, this Section does not permit Public Use of:  

• Athletic facilities and athletic fields. 

• Outdoor areas (while in use or reserved for Official Use or Unofficial Use, including but not limited to commercial rentals). 

• Roadways and parking lots/facilities. 

• Areas that are within 100 feet of a classroom, residential housing unit, or office, unless the Public Use occurs at a conversational volume.  

• Any areas that the University determines to be unsafe or unsuitable for Public Use (e.g. mechanical areas, rooftops).  

Permits 

Permits are not required for Official Use, Unofficial Use, or Public Use unless the event sponsor: 

• Desires to reserve particular space for their event.  

• Desires exclusive use of the space for their event, or if the space will be fenced-off or otherwise restricted. 

• Anticipates (or reasonably should anticipate) a concurrent attendance of more than fifty (50). 

• Will use sound amplification. 

• Will involve set-up or tear-down (e.g. seating, platforms or stages, lighting or A/V equipment, fire or pyrotechnics, or equipment or machinery. 

• Intends to use an electrical generator or external power. 

• Will use a large (100lbs+) display. 

The University does not charge a fee for permits or permit application processing. Applications are due at least thirty (30) days before the start of the event. Timely applications will be processed no later than one (1) week before the start of the event. Untimely applications will be processed in good faith, but processing before the start of the event is not guaranteed. It is the Policy of Wright State University to process permit applications without regard to the viewpoint or identity of the speaker or anticipated audience.  

Space Reservations. 

A space reservation secures a particular space for an event or activity. Space Reservations are required for Unofficial Use, but optional for Public Use. Space reservations can be obtained from Event Services. 

Speech and Expressive Conduct Rules. 

• Disruption. Events may not unreasonably or unduly obstruct or interfere with: (a.) the University’s official business or activities, (b.) ingress/egress at facilities or events, or (c.) the ability of others to access/depart, see and hear, and participate in events sponsored by others.  

• Security Fees. The University will not charge a security (or similar) fee to students or student groups based solely on the content of their Speech (or that of their invited guests) or in anticipation of the reaction to that Speech.  

• Duration. All events begin and end within the operating hours of the facility in which the event occurs (or during daylight hours, if the facility is open continuously or has no particular operating hours). Camping or overnight occupancy are not permitted, except for events sponsored by the Office of Student Involvement and Leadership. All property must be removed at the end of each day.  

• Reservations. Requests to utilize particular space will be honored when the University determines that the request is reasonable, that the space is appropriate and available, and that honoring the request will not disrupt University operations.  

• Food Service. All food and beverages served at an event must be prepared and served by the University or its designated food service vendor; additional charges may apply. This Section does not prohibit the service of food or beverages: (1.) at potluck-style events sponsored by the University or at student events approved by the Office of Student Involvement and Leadership, (2.) at events held in conjunction with a facility rental approved by Event Services, if authorized by the facility rental agreement, or (3.) that are commercially prepared and packaged for individual consumption, provided that it is served without charge by the event sponsor and the event sponsor clearly communicates to consumers that the products were not prepared or inspected by the University or its designated food service vendor.  

• Alcohol, Tobacco, and Drugs. Alcohol served at an event must be served by the University or its designated food service vendor; additional charges may apply. Tobacco use and possession/use of illegal drugs are prohibited on University Premises. 

• Parking. Event sponsors and attendees must observe all applicable laws and University Policies concerning parking. Parking permits are available for purchase through the Department of Public Safety; additional charges may apply.  

• Fire and Pyrotechnics. Fire or pyrotechnics require a permit, along with the prior approval of the University’s Department of Public Safety (or its designee). The Department (or designee) may require an inspection, demonstration, and/or other assurances that the fire or pyrotechnics can and will be utilized responsibly.  

• Equipment. All powered and power-generating equipment is subject to the University’s approval. 

• Signage. Handheld signs of reasonable dimensions are permitted. If the Department of Public Safety determines that the design or construction of a handheld sign is a threat to public safety, it may require removal of the sign or component. (Example: signs with sharp exposed components, or that are or appear to have been designed, modified, or carried as weapons.)

1260.4 Commercial Activities

Commercial Rentals.

Section 1260.3 (above) does not apply to “Commercial Rentals”: University Premises that have been leased or licensed to individuals or groups for private purposes, including but not limited to private events.  

Speech is not permitted in any leased or licensed area during a commercial rental, unless permitted by the lessee or licensee.

Commercial Activities.

Except as provided in this Section, or elsewhere in University Policy, commercial activity is prohibited across the University’s campuses, including within Surplus Premises made available under Section 1260.3 above. This prohibition does not apply in the case of:

• University Business Associates. Commercial activity by a party with which the University has an official business relationship. Example: food service in dining areas, sales in the bookstore.
• Student Organization Fundraisers. Non-profit fundraising activities conducted by registered student organizations or academic units. (Example: “Black Wall Street” event sponsored by the Black Students’ Association, art sale sponsored by the fine arts program, performances sponsored by the performing arts.) The Office of the Dean of Students reserves the authority to limit the number, duration, location, and type/manner of student organization fundraisers under this policy.
• Official Events. Approved commercial activity conducted by persons/entities invited to the University for that purpose. (Example: local restaurant/business tables at April Craze; food trucks at Fall Fest.)
• Commercial Rentals. Approved commercial activity conducted by a lessee/licensee during a commercial rental. (Example: A promoter selling event tickets or merchandise while renting the Nutter Center for the event.)

1260.5 Free Speech and Harassment

Ohio Revised Code § 3345.0212 requires each public university to adopt a policy on harassment that is consistent with and adheres strictly to the definition of harassment in Ohio Revised Code § 3345.0211. The University’s commitment to freedom of expression does not extend to harassment. Under § 3345.0211, “Harassment” is defined as conduct and/or expressive activity that meets each of the following elements: 

• Not protected by the First Amendment to the United States Constitution, or Article I, Sections 3 (Right to Assemble) and 5 (Freedom of Speech; of the Press; of Libels) of the Ohio Constitution; and 

• Unwelcome; and 

• So severe, pervasive, and objectively offensive that it effectively denies an individual equal access to the individual’s educational program or activity. 

1260.6 Free Speech Complaints and Resolutions.

Complaint and Resolution Process. 

Any student, student group, or employee may submit a written complaint about an alleged violation of this Policy by a University employee, which may include a penalty imposed on a student’s grade for an assignment or coursework that is unrelated to ordinary academic standards of substance and relevance, including any legitimate pedagogical concerns, and is instead based on the content of the student’s otherwise constitutionally-protected speech or expressive conduct. 

Filing A Complaint. 

Complaints must be written and submitted through the University’s EthicsPoint system at https://secure.ethicspoint.com/domain/media/en/gui/43847/index.html (off-site) , or 1-855-353-3783. The University will investigate any complaint that satisfies the following conditions: 

• The complainant is a student, student group (filed on behalf of the group by a member of its leadership team or official advisor), or employee; and 

• The complainant gives their name, and indicates a willingness to participate in the investigation and hearing process; and 

• The allegations, if true, constitute a violation of this Policy; and 

• The complaint is filed within 120 days of the alleged policy violation. 

The University may investigate, but is under no obligation to investigate, complaints that do not meet each of the foregoing criteria. 

Referral and Investigation. 

Complaints will be forwarded to the University’s Director of Compliance. The Director (or designee) will promptly review each complaint to determine the criteria above are satisfied, and may conduct an informal inquiry to gather information necessary to make that determination. If any of the criteria above are not satisfied, the Director (or designee) may either initiate an investigation or dismiss the complaint. If a complaint is dismissed, the Director will notify the complainant in-writing. 

If the Director (or designee) determines that further investigation is appropriate, the Director will conduct the investigation or appoint an employee to do so. The investigation will be conducted in accordance with written protocol adopted by the Director. The protocol will conform to the requirements of state law and, if applicable, to the provisions of any collective bargaining agreement. 

Absent extraordinary circumstances, an investigation will conclude within ninety days after the filing of a complaint. 

Resolution. 

Upon receipt of the investigator’s final report of investigation, the Director will provide the complainant and the respondent with the report and offer the complainant and the respondent an opportunity for a hearing. If the complainant requests a hearing, the Director will appoint a single hearing officer or a hearing panel to preside at the hearing. The hearing will be conducted in accordance with written protocol adopted by the Director. The protocol will conform to the requirements of state law and, if applicable, to the provisions of any collective bargaining agreement. Absent extraordinary circumstances, the hearing officer or panel will produce a written report within fourteen days after the hearing concludes. 

If the outcome of the hearing is a finding that the complaint is not substantiated by the evidence, the Director will notify the complainant and respondent, and close the complaint as “not substantiated.” 

If the outcome of the hearing is a finding that the complaint is substantiated by the evidence, the Director or hearing officer or panel will additionally make recommendations for corrective action. The Director will promptly forward the complaint, the investigative report, the hearing officer/panel’s findings and recommendations, and other pertinent papers to the Board of Trustees. 

At any time prior the Board’s action, the complainant and respondent may resolve a complaint informally and to their mutual satisfaction. A private resolution will not preclude the University from taking appropriate action.