3.63 Freedom of Expression

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Scope: NMSU System

Source: RPM Title 3 | Ethics, Equity and Equal Opportunity

Policy Administrator:

Last Updated: 11/05/2015

A. Purpose

The purpose of this policy is to recognize, respect, and encourage the free exchange of ideas through written, spoken, and other forms of expression, including the right to peaceful assembly, as guaranteed by the First Amendment to the U.S. Constitution and the New Mexico Constitution. Furthermore, this policy clarifies application throughout the NMSU system by identifying the distinct types of forums, as well as to describe the reasonable restrictions, if any, which may be imposed in order to protect the university’s teaching, research and service operations, and student activities from significant disruption and interference.


B. Scope

This policy applies to all people, and throughout the NMSU system (at all campuses, facilities and other real property under the operation and control of the NMSU Board of Regents, to include university sponsored events off-premises). Commercial solicitation is not covered by this policy and is governed by ARP 3.09.


C. Policy Administrator

The President at each campus shall have primary responsibility for the administration of this policy, on behalf of the NMSU Board of Regents. Parties responsible for implementing and applying this policy also include, but are not limited to:

  1. Provost and Senior Vice President for Academic Affairs
  2. Deans of the Colleges and Libraries and Graduate School
  3. Dean of Students, including the Office of Campus Activities
  4. Associate Vice President of Facilities and Services
  5. Director of Athletics
  6. Director of Housing and Campus Life
  7. Director of Special Events
  8. Manager or Building Monitor within any university facility


D. Definitions

For purposes of administering this policy, the following definitions apply:

  1. Affix means to stick, to anchor, or to fasten to something else, regardless of whether or not it leaves a mark or causes damage.
  2. Commercial Speech is speech that proposes a commercial transaction; the audience consists of prospective consumers, and the content of the message is business related in character.
  3. Content Neutral means without regard to the viewpoint or message. Content neutral restrictions are those based on reasonable time, place, and manner rather than the content or viewpoint of the message.
  4. Forum is a term used by the U.S. Supreme Court to help describe the extent to which content neutral restrictions on free expression may legally be applied. The three types described in this policy are: traditional open public forum; limited public forum and non-public forum. These terms apply not only to physical areas, but also to electronic communication and websites. The type of forum will be determined by the nature of the space being used, its traditional usage, official designations, and the circumstances relating to the nature of an event or function taking place in that location. For example, if a normally public forum were reserved for a specific event (following applicable university procedures) that might convert the location to a limited or non-public forum during the event for which it was reserved; conversely, areas such as special collections within the university are typically non-public forums, but may become limited public forums for certain special events.
  5. Social Media means computer- mediated tools that allow people to create, share, or exchange information, ideas, videos, and pictures in virtual communities and networks.
  6. Speech is written, spoken, and other forms of expression of thoughts, ideas, or positions, generally related to issues of public interest.
  7. University Premises, sometimes referred to simply as “campus,” means all campuses, facilities, land, buildings, or other indoor or outside space owned, leased or otherwise under the operational control of NMSU. University owned property leased to other entities and not under the operational control of NMSU are not considered university premises for purposes of this policy.
  8. Unprotected Speech means speech that is not afforded First Amendment protection, such as commercial speech that is false or misleading. Other examples include fighting words, child pornography, defamation, and libel.


E. Policy Statements

New Mexico State University aspires to be an intellectually open campus. Free exchange of ideas is a reflection of the university’s public land-grant heritage, interest in diverse points of view, and commitment to excellence in education and research. NMSU encourages free expression and peaceful assembly, provided they do not disrupt the university missions or functions. The type of forum, described below, will determine the level of restriction, if any, which may be imposed on free expression activities within the forum. Restrictions must be content neutral, typically geared to time, place and manner. The type of forum for a given location may vary, based on the circumstances relating to the nature of an event or function scheduled to occur at the location.

  1. Public Forums are areas that traditionally have been open to the public, such as parks, sidewalks, and lobbies as well as other areas that become public forums by university designation. Free expression and civil discourse are encouraged in public forums, and any regulation of expression within a public forum must be narrowly tailored to serve a compelling state interest.
  2. Limited Public Forums are areas open to the public or a segment thereof (including through the purchase of admission), but where there is a specific purpose. The necessities of confining a forum to the limited and legitimate purpose for which it was created may justify some limitations that are narrowly tailored to allow the event or activity to continue and/or achieve its intended purpose. Any limitations must be consistent with the spirit of this policy. Legitimate limitations include subject matter and classification of participants (students, student government representatives, faculty, etc.). Limitations must be reasonably related to a definite and substantial university interest. Any limitations must be content neutral, and aimed solely at reducing or preventing disruption to the activity that would cause a definite and measurable interruption to the intended purpose, or protecting other clearly compelling university interests (e.g., public safety). If a limited public forum serves more than one purpose, the university may prioritize the purposes for which it may be used, e.g. a campus auditorium may give priority to theater productions. Expression within a limited public forum is permitted consistent with the Procedural Guidelines administered by the Office of Campus Activities.
  3. Non-Public Forums are areas not open to the general public and where expression by those permitted to be there may be reasonably limited, in a content neutral manner, to that which is compatible with the purpose and nature of the location. (Examples include faculty and administrative offices, classrooms, residence hall rooms, and archive and special collections of libraries.)
  4. Disruption of university functions or activities: Regardless of the type of forum, free expression activities and events shall not materially or unreasonably interfere with the education, research, public service, and outreach missions of the university, office operations, or sleep of residents.
  5. Modes of Free Expression: The university recognizes that there are many different modes of free expression, including distribution and posting of literature; group speech activities such as rallies, parades and demonstrations; electronic sound amplification, chalk, symbolic speech (e.g. nudity, fire, and/or weapons); and electronic communication. The limitations described in the Procedural Guidelines pertaining to the various types of expression are intended to safeguard personal safety and the university’s missions, and not to hamper freedom of expression. See ARP 3.63, Section G.
  6. Respect for Rights of Others:
    1. Prohibition of Third Party Interference with Right to Free Expression: Except as provided elsewhere in this policy, university employees, students, and other members of the public shall not interfere with the rights of freedom of expression by others permitted by this policy. Alleged violations of rights afforded by the U.S. and N.M. Constitutions, recognized by this policy, will be taken seriously and investigated promptly and objectively.
    2. Retaliation Prohibited: Retaliation against individuals who have exercised the rights granted by the First Amendment, recognized through this policy, is strictly prohibited. Any such claim should be reported immediately to an appropriate university official to register a complaint. Generally, the Office of the Dean of Students and the Office of Human Resource Services-Employee and Labor Relations administer student and employee grievances, respectively. Such claims will be taken seriously, investigated independently, and if substantiated, will be grounds for corrective or disciplinary action, appropriate to the circumstances.
  7. Respect for University Property and Functions: In exercising the right of free expression and peaceful assembly, individuals must also accept the responsibility of following the laws related to the safety of people and property. Outdoor and indoor activities must follow all applicable fire codes and other local, state, and federal laws. See ARP 3.63 – Freedom of Expression, Section G. which may clarify limitations intended to safeguard missions and personal safety, and not to hamper free expression.
  8. Interface with other laws and regulations: There is inherent tension that exists between competing public policies affecting individual rights. A detailed examination of statutes and regulations which protect individuals from sexual harassment, discrimination, hostile environment and other discriminatory conduct is beyond the scope of this Freedom of Expression policy. This policy is not intended to insulate persons from accountability for their actions if their conduct discriminates, harasses or otherwise creates a hostile environment based on any class protected by federal and state anti-discrimination laws. (See also ARP 3.25 – Discrimination, Harassment and Sexual Misconduct on Campus). Nothing in this policy is intended to provide a defense in any action against a third party by an alleged victim of defamation, libel, slander, invasion of privacy, assault, or any other civil or administrative claim.
  9. Dispute Resolution: The successful implementation of this policy will depend upon the university community’s education and engagement, including but not limited to understanding which types of planned activities require advance permission, and what to do if an event or expressive activity is questioned. As authorized by Section F., hypothetical scenarios are posed within the Frequently Asked Questions (FAQ’s) posted at http://campusactivities.nmsu.edu/policies/ to provide guidance about how this policy should be applied. Because time will often be of the essence when issues arise involving this policy, the informal methods listed below are available to supervisors, students, employees and members of the public in order that individuals may seek a policy clarification or interpretation in advance, in order to resolve issues in a mutually professional and amicable manner, rather than through more adversarial grievance or litigation methods. These methods include and are not limited to:
    1. A single point person will be designated by each NMSU campus president to serve as the liaison between members of the university community and/or the public and the Policy Administrators listed under Section C, in order to resolve issues expeditiously.
    2. Individuals may request clarification of the policy or the Procedural Guidelines by contacting the designated point person. The designated point person will promptly respond to acknowledge the inquiry, and as appropriate or needed, may consult with any of the Policy Administrators prior to providing an interpretation to the individual.
    3. If the individual(s) wishes to appeal the interpretation provided by the designated point person, such notification must be given to the point person either in writing or via email. The point person will then call a meeting of the Policy Administrators (or any subset, depending upon availability) and the individual(s) as soon as practicable, which meeting may be conducted telephonically or electronically. The decision of the Policy Administrators will be rendered within one working day of the meeting and communicated to the individual via email or other contact information supplied by the individual.
    4. Students and employees also have recourse to file grievances against those who they feel may have restricted their rights under this policy, and shall follow the applicable student or employee grievance policy if the above steps have not resolved the dispute.
  10. Sanctions:
    1. Individual Consequences for Conduct Not Protected by Constitution or This Policy: Nothing in this policy protects expressive activities which:
      1. constitute criminal, defamatory, or discriminatory misconduct;
      2. contain true threats of violence or imminent harm; or
      3. seek to incite, or intentionally incite, a fight.

Individuals engaging in such conduct may face criminal prosecution, civil lawsuit, and/or disciplinary action. (For example, see RPM 3.25 – Equal Opportunity and Prohibition of Unlawful Discrimination and ARP 16.21 – Restricted/Prohibited Access to Campus, ARP 10.50 – Faculty Alleged Misconduct Investigation, Discipline, and Appeals Processes, and ARP 10.10 – Staff Disciplinary Action/Involuntary Termination). This policy does not provide a defense to individual liability for such prohibited conduct.

    1. Disclaimer of Liability: NMSU shall not be liable for any injuries to participants or third parties caused by individuals or groups engaging in freedom of expression activities.
    2. Damage or Injury: If property damage or personal injury occurs, individuals or groups determined to be responsible may be subject to appropriate administrative, civil, or criminal action, for the purpose of covering the university’s costs associated with the damages. Additionally, while generally NMSU wishes to facilitate free discussion, nothing in this policy is intended to eliminate any rights of persons to pursue any legal remedies they may have under local, state, or federal law.
    3. Unattended or abandoned materials: Materials used for free expression activities (literature, signage, etc.) shall not be left unattended. Any items that are left unattended for more than thirty (30) minutes may be removed by the university at the owner’s expense. Signage promoting or providing directions to an event are allowed on the preceding day for a morning event or on the day of an afternoon or evening event, will not be considered to have been left unattended, and shall be removed by the event organizers at the conclusion of the event. Permission for posting or leaving of materials outside of the above restrictions may be granted on a case-by-case basis by the Office of Campus Activities.


F. Procedural Guidelines

To facilitate the implementation, administration and enforcement of this policy, the policy administrators identified above may develop and issue supplemental Procedural Guidelines consistent with this policy, which may include protocols, FAQ’s, forms, flowcharts, etc. The Procedural Guidelines utilized in the application or enforcement of this policy shall be either outlined below in this Section, and/or posted at an appropriate NMSU website, and linked from this section. With the approval from the policy administrators, other related reference material relating to freedom of expression, anti-discrimination laws, hate crimes, etc. may also be listed below or linked from this Section.