Ohio University students can defeat their school’s new protest ban just like they defeated past speech restrictions

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By Damon Krane
The Athens News (Athens, Ohio)
October 19, 2017
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Restrictions on speech and assembly intended to suppress student activism are nothing new at Ohio University. Much like the new indoor campus protest ban, administrators used to ban protest from most outdoor areas of campus.

Just as current administrators have tried to use the fascist violence in Charlottesville to justify silencing nonviolent anti-fascist students at OU, past administrators tried to use a violent misogynist and homophobe’s desire to demonstrate on campus to justify silencing students resisting misogynistic and heterosexist campus violence.

Times and faces have changed, but the administration’s playbook remains the same. As today’s students and their allies fight to defeat OU’s current assault on the First Amendment, it is helpful to review past campus speech struggles in which students ultimately prevailed, and to more closely analyze the current protest ban.

In February 2002, I joined with other OU students to organize a walkout in protest of administrators’ response to campus sexual assault and anti-LGBT hate crimes. During an eight-day stretch that January, three female students had reported being sexually assaulted, and one lesbian student had reported being jumped and beaten by multiple assailants as she walked home on campus from an LGBT dance party uptown.

Back then OU led all public universities and colleges in the state of Ohio with the highest number of rapes reported in residence halls. But not many people knew, since, as I discovered in the lead-up to our walkout, OU had from at least October 1998 through March 2002 been violating federal law (specifically, the Clery Act) in order to hide from its students and employees not only campus crime statistics, but also information on crime prevention, reporting and survivor support – illegal actions by administrators that likely increased sexual violence at OU. (For more information, see my February 27, 2017 Athens News column.) Meanwhile, administrators kept busy telling female students to drink less alcohol and not walk alone at night. 

Needless to say, we student activists had a lot to talk about, and we wanted to be heard. So we planned for our walkout to culminate in an open mic style rally at the most iconic, accessible, centrally located, highly visible location we could think of – one we knew from black and white photos from the Vietnam War era had been the site of countless demonstrations over the years: the Civil War Monument on College Green.

Administrators quickly stepped in to tell us the monument was off-limits, and that OUPD would arrest students for trespassing on our own campus if we tried to rally there. (See my video footage of OU officials making, and later denying, this threat.) The 2002 version of the recently updated Ohio University policy 24.016 “Use of Outdoor Spaces on the Athens Campus” restricted outdoor student protests to a limited number of mostly out-of-the-way campus locations (pejoratively dubbed “free speech zones”) that students had to apply to reserve in advance. The Civil War monument on College Green was not one of these locations.

What’s more, administrators informed us that OU was being sued by an off-campus group that wanted access to the monument – namely, a traveling band of misogynistic, heterosexist, Christian fundamentalist street preachers led by Charles “Brother Chuck” Spingola, an imposing, wild-eyed body builder with slicked-back hair who carried his bible in a gun holster. For years he had appeared on various Midwest campuses to denounce students as fornicators, sodomites and baby-killers in highly animated sermons which, at OU and elsewhere, were occasionally marred by violence and dozens of times ended with his arrest.

He had made headlines in 1998 for an altercation in which he broke the nose of a Kent State University student, and in 1999 for climbing a flagpole at the Ohio Statehouse to tear down and then burn a rainbow flag during the Columbus Pride Parade. At the 2001 Pride Parade, he was arrested for splashing gasoline on a female parade security worker.

A year after the 2002 OU student walkout, the group The Army of God published a letter in which Spingola praised James Charles Kopp, Eric Rudolph and Clayton Lee Wagner for being what Spingola called “Christian terrorists” and “[t]hose blessed few who actually terrify the wicked.” (Kopp was convicted of the 1998 sniper-style murder of OB/GYN Barnett Slepian; Rudolph of bombing the 1996 Summer Olympics in Atlanta, as well as the 1997 bombings of abortion clinics in Atlanta and Birmingham, and of an Atlanta lesbian bar; and Wagner of a foiled 1999 plot to bomb multiple abortion clinics, a 2001 anthrax hoax, and a 1992 bank robbery.)

“As cream rising to the top of the milk, so the Christian terrorist rises above the huddled masses of churchgoers and the many voices which denounce their violent attempts to defend the innocent from their murderous assailants,” he wrote.

Spingola’s own violence had already endeared him to other militant fundamentalist Christians.

“The student turned and swung at Chuck, but he ducked and countered with a punch that broke the degenerate’s nose in three places. Praise the Lord!” the fundamentalist newsletter Campus Ministry, USA gushed after the 1998 incident at Kent State. “[Another student] came charging at Chuck flaring his arms like a sissy, but one swing from Chuck sent him to the pavement. Hallelujah!”

Spingola wanted to flex his muscles and spew his hate from the monument, but administrators had ordered him off university property and onto the adjacent public sidewalk. On at least one occasion, he refused and had been arrested. His 2002 lawsuit alleged that the First Amendment entitled him to preach on campus property.

Surely students and administrators could all agree that Spingola should be kept off campus, right? And although it wasn’t true, administrators claimed the consequence of allowing students to rally at the monument against misogynistic and heterosexist campus violence would be opening campus to the violent misogynist and heterosexist Spingola.

“Whatever space is made available we have to make equally available to anyone regardless of their message,” then Dean of Students Terry Hogan told us in the video linked above.

“If an event such as [the 2002 walkout rally] is held at the monument and we don’t act consistently with what we’ve done in the past with the preachers, it kind of ruins our case,” claimed then Associate Director of Baker Center (and Terry’s brother) Tim Hogan, who handled reservations for College Green sites. “For example, I would go out to ask the preachers [to leave campus property] and they would ignore me. We’d call OUPD. They’d ask them to leave. They’d be ignored. And then [the preachers] would be arrested… If they stay and resist the order to disperse, police have arrested them. That’s what we’ve done in the past. We’re being advised that we should stay consistent with that if we want to win our legal case.”

But if letting Spingola and company speak on campus was the price of our rally, many student activists were willing to pay it.

“I would rather sacrifice having to listen to [Spingola] talk to me for like 30 seconds, so that I can be able to say what I want to say, too,” OU student Sarah Robertson told Terry Hogan and then Vice President of Student Affairs Mike Sostarich at an impromptu meeting in Cutler Hall.

“I feel way less offended by them preaching to us on the sidewalk than [by] us not being able to talk without getting an ultimatum of getting arrested. That’s way more offensive to me,” OU student Yvette Nepper stressed.

Regardless, the whole issue was a smokescreen. What OU officials told students was patently false, and they knew it. Well-established case law allowed (and still allows) university administrators to make a distinction between, on the one hand, groups and individuals affiliated with the university (such as students, faculty, and staff) and, on the other hand, groups and individuals unaffiliated with the university (such as the street preachers of 2002 –or the prominent white supremacists of today– who aren’t students, faculty or staff), and to then place greater restrictions on members of the latter category when it comes to providing, denying, or otherwise regulating access to university facilities. Furthermore, in 2002, the university already had in place longstanding policies and practices that made such distinctions.

“Clearly there are areas on campus that are available for groups affiliated with the university, and those same areas are not available for groups unaffiliated with the university,” I pointed out to Tim Hogan. “For instance, you mentioned the Howard Hall site when we spoke yesterday. So my question is, if a distinction can be made at the Howard Hall site between students and non-students, those affiliated with the university and those unaffiliated with it, what’s so special about the monument? Why can’t that same distinction be made there?”

Tim Hogan’s response: “It can be, but it’s not.”

Shortly after our walkout, a court dismissed Spingola’s lawsuit and upheld OU’s right to separately regulate affiliated and unaffiliated entities’ access to campus facilities. It is highly unlikely that a student rally at the monument ever would have jeopardized OU’s case. But much more telling was that even after Spingola’s lawsuit was out of the way, OU continued to ban student protests at the monument.

Because organizers of the 2002 walkout did not want to subject survivors of campus sexual and heterosexist violence to potentially violent arrest at the hands of university police, we had grudgingly agreed to move our rally from the monument to West Portico of Memorial Auditorium. Luckily, the 300-person walkout rally was large enough and attracted enough media attention that, along with the campaign for university reform that followed, we succeeded in forcing OU into compliance with the Clery Act and, according to then Student Senate President Katherine Smith, played an instrumental role in pressuring the administration to agree to Smith’s proposal to set aside space in the planned construction of the “new” Baker Center to create OU’s campus women’s center, which first opened its doors in 2007. But we still believed the monument would have been a better, more visible location for our walkout rally and for many other campus protests.

In the years that followed, student resistance to OU’s outdoor restrictions on speech and assembly continued. In the brick walkway a dozen feet from the monument, in a location then still officially off-limits to student protests, the Class of 2005 inserted a plaque defiantly stating, “College Green has served as a forum for the voices of Ohio University students throughout its history. Whether supporting civil rights, advocating for the abolishment of women’s curfews, or in protest, students have and will continue to play a vital role in shaping Ohio University.”

After OU again threatened to arrest students for trespassing at the monument in order to disperse an anti-war rally there in the fall of 2006, the OU chapter of Students for a Democratic Society made opposing OU’s limited free speech zones one of its top priorities. In 2007 SDS held two demonstrations at the monument in violation of OU policy and marched into Cutler Hall to demand that all of campus be made a free speech zone.

Undergraduate Student Senate began lobbying administrators to increase the number of outdoor free speech zones, but after Graduate Student Senate stepped in to support SDS’s goal of totally abolishing the restrictions, students finally won. According to then GSS president Dominic Barbato and then SDS organizer Will Klatt (both of whom I interviewed for this column), in Fall 2007 OU administrators agreed to students’ demands to make all outdoor campus property available for students to engage in constitutionally protected speech and assembly, as long as students gave administrators 24 hours advance notice.

Indeed, even current OU policy states, “The unscheduled use of outdoor spaces for the purpose of engaging in constitutionally protected speech shall be permitted provided the space has not already been reserved by another user and that the unscheduled use does not result in disruption as defined [in the policy] below.”

But now, ten years after students triumphed over OU’s outdoor restrictions, administrators have launched a vicious new offensive against student activism indoors, beginning with what appears to be the largest ever mass arrest of students on campus in the university’s entire 213-year history. This February 1, the Ohio University Police Department — acting with the assistance of the Athens Police Department and the Ohio State Highway Patrol– arrested 70 students who had gathered in OU’s student center to peacefully protest the Trump administration’s Muslim travel ban and to demand that OU become a sanctuary campus. This stunning attack on the Baker 70 — and by extension, all students — was condemned by OU’s Undergraduate Student Senate, Graduate Student Senate, Faculty Senate and scores of university alumni. After a resounding courtroom defeat, administrators were forced to drop all charges against the Baker 70. But rather than learning to respect students’ First Amendment rights, administrators followed up in August by doubling down on their commitment to silence students with a new Orwellian “Freedom of Expression” policy that declares, “Demonstrations, rallies, public speech-making, picketing, sit-ins, marches, protests, and similar assemblies are not permitted in the interior spaces of university buildings.”

In trotting out this reprehensible policy, OU’s in-house spin doctors have falsely claimed administrators lost their case against the Baker 70 because there had been no policy regulating protests in the student center. Unfortunately, this deceptive ploy has led many policy critics to mistakenly conclude that administrators have drafted new rules that make it easier for the university to win convictions against arrested student protesters. But as someone who has worked on First Amendment issues at public high schools and universities for the past two decades, I believe OU’s new policy is even more likely to fail in court than were its charges against the Baker 70 — and that OU’s legal department is as aware of this as I am. 

Policy or no policy, OU administrators are legally permitted to place constraints on the time, place, and manner of student expression if, and only if, specific evidence shows that such constraints are most likely necessary to stop (or to prevent, based on a reasonable forecast of the impending situation) a specific instance of major disruption of normal university operations, an invasion of the rights of others, or a public safety hazard. The university’s entire case against the Baker 70 and its statements to the press last spring all centered on administrators’ claim that OU’s mass arrests of students were necessary to stop such a disruptive and hazardous situation. However, the university lost its case because an overwhelming body of evidence refuted administrators’ claims of hazard and disruption. Therefore, the February 1 Baker Center sanctuary campus demonstration itself is irrefutable proof that a student protest can occur indoors at OU without creating a situation that meets the standard necessary for administrators to legally suppress student speech and assembly. As a result, OU’s new blanket ban on any and all protests, within any and all university buildings – which has nothing whatsoever to do with the specific circumstances of any particular location or any particular protest – is as blatantly unconstitutional a policy as could be dreamed up by the most ambitious campus despot: namely, policy author and OU General Counsel John Biancamano.

It is precisely because Biancamano knows the law is not on his side that OU’s top (Il)legal counsel has put forward an audacious bluff that, far from being designed to achieve a courtroom victory, is constructed to trick students into thinking administrators have greater legal power than they actually do, and to thereby intimidate and confuse students into silencing themselves — all so that the university won’t end up in court again, where Biancamano knows he would only lose. And as a potential side benefit, the new policy may also fool students into thinking that since the law isn’t on their side, they may just as well engage in truly illegal protest activities, for which the university actually could win criminal convictions.

That Biancamano, as the top attorney of a public institution of higher learning, seems to have dedicated himself to both circumventing the law and miseducating students, all in order to violate students’ constitutional rights and to prevent students from becoming informed, engaged citizens, is something that should give everyone serious pause. OU not only needs to abolish its shameful new Anti-Freedom of Expression policy, it needs to fire Biancamano, whose behavior could not be more at odds with the most fundamental values for which Ohio University claims to stand. Meanwhile, the protest ban’s other signatories, new OU President Duane Nellis and interim Provost David Descutner, both really could use a high school civics lesson.

Thankfully, despite the exceptionally regressive administration currently running OU, today’s OU students are in a much better position than were their predecessors who defeated OU’s outdoor restrictions a decade ago. This time around faculty has come out strongly on the side of students, and students have organized an impressive, ideologically diverse coalition of campus groups to oppose the policy, spanning from the International Socialist Organization on the left all the way over to the College Republicans on the right. So forget the five years it took students to defeat OU’s old outdoor restrictions. Today’s students and their allies have the power to defeat the indoor protest ban in more like five weeks! And they should set their sights higher — on the corrupt university officials responsible for both this policy and the wrongful arrests and civil rights violations of the Baker 70.

“Just keep organizing” was the advice last week from former Graduate Student Senate president Dominic Barbato, now a graduate employee union organizer in Michigan. “The only time I see student activists lose in situations like this is when they fail to organize to leverage their superior numbers and only turn out a handful of people to their protests. Because the superior numbers of students and their allies is the source of students’ strength.”

I agree. That’s why I plan to support today’s OU students in their struggle to make their voices heard by joining the mass rally against OU’s protest ban this Friday, October 20, beginning at the Athens County Courthouse at 5:30pm. If you care about freedom of speech and democracy in these dire political times, it’s absolutely vital that you show up, too.

Defeating OU’s latest attack on progressive activism and student speech rights – and indeed, its lawless authoritarianism and shameful miseducation of all students – isn’t just a campus issue. It is a crucial part of how we keep burgeoning American fascism from taking root in our town.

 

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Damon Krane is a longtime Athens, Ohio-based progressive activist, campus and community organizer, and journalist. He owns and operates Hot Potato Food Truck.

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