Freedom of Expression Regulation - Interim

Version 3 (Current Version)
All Versions:
PolicyREG07.30.06
TitleFreedom of Expression Regulation
CategoryFinance, Operations and Auxiliary Services
Sub-categoryFacilities
AuthorityChancellor
History

April 19, 2017; revised July 17, 2017; revised October 10, 2018

Contact

For questions about reserving University Property:
Central Reservations Office
Web site: http://www.ecu.edu/cro/
Email: CRO@ecu.edu
Telephone: 252-328-4731

For questions about this Regulation:
Responsible Officer
University Counsel and Vice-Chancellor of Legal Affairs
Telephone: 252-328-6940

Students may submit complaints reporting violation of the regulation through the grievance process administered by the ECU Dean of Students, for which information can be found at: https://www.ecu.edu/deanofstudents/student-grievances-inquiries.cfm.

Anyone may submit a complaint reporting violation of the regulation through the general institutional complaint procedure administered by the Chief of Staff, for which information can be found at: http://www.ecu.edu/cs-admin/chancellor/customcf/docs/Institutional-Complaints-Procedure.pdf.

Related Policies

Student Conduct Process
Student Code of Conduct Rights and Responsibilities
Brody School of Medicine Code of Student Conduct
Brody School of Medicine Code of Professional Conduct
School of Dental Medicine Handbook
Code of Ethical Conduct and Professional Behavior for Students and Residents
ECU Faculty Manual
Employment Policy for Employees Exempt from the State Human Resources Act
Review Process and Procedure for EHRA Non-Faculty Employees
Office of State Human Resources
SHRA Performance Appraisal Policy
SHRA/CSS Employee Handbook
Clinical Support Services (CSS) Disciplinary Policy

Additional References

First Amendment, United States Constitution
Article I, Section 14, North Carolina Constitution
North Carolina General Statutes (“N.C.G.S.”), § 116-300 through § 116-304, Campus Free Speech
UNC Policy Manual, § 1300.8, Free Speech and Free Expression Within the University of North Carolina
UNC Policy Manual § 101.3.1; § 300.1.1; and § 300.2.1
UNC Code § 601; §603; § 604; § 608; and § 609
UNC Policy Manual 700.4.1, Policy on Minimum Substantive and Procedural Standards for Student Disciplinary Proceedings
UNC Policy Manual 700.4.1.1[R] Regulation Applicable to Student Disciplinary or Conduct Procedures: Right to an Attorney or Non-Attorney Advocate for Students and Student Organizations
UNC Policy Manual 700.4.2, Policy on Student Conduct
UNC Policy Manual 700.4.3[G], Guidelines on Student Disciplinary Proceedings: Meaning and Effect of Expulsion
N.C.G.S. § 14-288.4
N.C.G.S. § 143-318.17
N.C.G.S § 116-212
East campus map
West (Health Sciences) campus map
ECU Office of Disability Support Services


1. Introduction

The primary function of East Carolina University (the “University”) is the discovery, improvement, transmission, and dissemination of knowledge by means of research, teaching, discussion, and debate. To fulfill this function, the University must strive to ensure the fullest degree of intellectual freedom and free expression as guaranteed by the First Amendment to the United States Constitution (“First Amendment”).

The diverse ideas and opinions of members of the University Community will sometimes conflict. However, it is that very conflict which gives rise to the theories and concepts that drive our society forward, and which must not be suppressed solely because they are thought by others to be offensive, unwise, immoral, disagreeable or wrongheaded.

Students, staff, and faculty have the freedom to discuss any problem that presents itself, as the First Amendment permits, and within the limits of viewpoint and content-neutral restrictions on time, place, and manner of expression that are necessary to achieve significant University interests. All University policies, regulations, rules and standard operating practices (SOP’s) governing use of University Property for Expressive Activities shall be publicly available on the University’s website.

The University shall not take action, as an institution, on the public policy controversies of the day in such a way as to require students, faculty, or administrators to publicly express a given view of public policy.

Any University Regulations, Rules and SOP’s are hereby nullified to the extent they restrict Expressive Activity to a greater extent than allowed by the First Amendment or this Regulation, whichever provides the greatest level of protection of Expressive Activity.

2. Definitions

2.1. "All Persons and Organizations" means, collectively, all Members of the University Community, their Guests and Non-Members of the University Community.

2.2. "Associated Entity" means a private organization, foundation or association that operates under its own charter or bylaws, but which exists to provide funding or other support to the University.

2.3. "Brickyard" means the approximately 2.3 acre East Campus space, which consists of a brick plaza and associated greenspace. It is bounded on the south by Mendenhall, bounded on the north by the Erwin, Bloxton and Mamie Jenkins Buildings, bordered on the west by the Student Recreation Center parking lot, and bordered on the east by the Old Cafeteria Building.

2.4. "Central Reservations Office" ("CRO") means the University Department responsible for coordinating, scheduling and approving space reservations for Events and Expressive Activities on University Property.In doing so, the CRO coordinates with Sub-Schedulers and other campus officials to facilitate Expressive Activities and Events.

2.5. "Common Areas of the Student Center(s)" means, with regard to the West Campus, the second floor lounge of the Health Sciences Student Center. With regard to East Campus, for so long as Mendenhall functions as the Student Center, the Common Areas are the student lounge located on the main floor of Mendenhall and the two student lounges on the top floor. When Mendenhall ceases functioning as the Student Center, then the East Campus Student Center Common Areas will be the first and second floor student lounges along the east corridor of the building that becomes the East Campus Student Center

2.6. "East Campus Designated Forum" means the approximately 5,250 square foot area, within the Mall, that contains the Cupola and is bounded on all four sides by well-traveled pedestrian sidewalks. Contact the CRO for details.

2.7. “Event” is any use of University Property which falls outside the definition of “Expressive Activity.”The term “Event” includes advertising or solicitation that promotes the sale or use of a product or service; training seminars; workshops; job fairs; fundraisers; receptions; ceremonies; banquets; recreational events; and dances.Events should be scheduled using content-neutral criteria, including a consistently applied fee structure for use of University Property.

2.8. "Expressive Activity" or "Activity" means all forms of expression that occur on University Property and that fall within the ambit of the First Amendment to the United States Constitution, which may include, but are not limited to, demonstration, speech-making, oral presentation, protest (including silent protest), marching, signs, picketing, petition circulation, distribution of written information, counter-protest, symbols, and similar expressive communications and activities that are non-commercial in nature.

2.9. "Expressive Activity Area" ("EAA") means, with regard to the East Campus, the Mall, the Brickyard, the East Campus Designated Forum, the Sculpture Garden, those out-of-doors areas that have been consistently open to the Expressive Activity of Members of the University Community by tradition or by administrative approval, and the Common Areas of the Student Center. With regard to the West Campus, EAA means the West Campus Designated Forum, the Common Areas of the Student Center, and those out-of-doors areas that have been consistently open to the Expressive Activity of Members of the University Community by tradition or by administrative approval. All parking lots are excluded during hours when they are in use. All Expressive Activity on or in University Property, whether inside or outside an EAA, remains subject to the provisions of this Regulation.

2.10. "Guest" means a person, group, club or other organization that is invited to engage in Expressive Activity or Events on University Property and sponsored by a Member of the University Community. Any Member of the University Community may revoke their own Guests’ invitations at any time.

2.11. "Mall" means the approximately 5.5 acre site in the heart of East Campus that is bounded on the east by Founders Drive, bounded on the north by Faculty Way, bounded on the west by Cupola Court and bounded on the south by Alumni Walk.

2.12. “Material and Substantial” or “Materially and Substantially” refers to actions or activities that have an actual impact, as opposed to a predicted or feared impact.It includes actions that materially infringe upon the rights of others to engage in, or listen to, Expressive Activity. When determining whether this threshold has been met, officials should apply content-neutral, objective and relevant factors, including, but not limited to, whether an Expressive Activity is closed to the public; whether the Activity is occurring inside or outside; whether someone is interfering with the ability of others to hear, participate in or otherwise benefit from an Expressive Activity; whether someone is impeding ingress or egress to/from an Expressive Activity; and whether University functions are impeded or disrupted, including, but not limited to, University offices, classrooms, walkways, streets, and medical facilities.

2.13. "Member of the University Community" or "Member" means a University Unit (including the Board of Trustees), a Registered Student Organization, an Associated Entity, a current employee, or a currently enrolled student. This definition excludes K-12 students and K-12 employees when they are in attendance at, or operating in the course and scope of their work duties, within a secondary school, as applicable, because such students and employees enjoy different First Amendment protections in the secondary school setting.

2.14. "Non-Member of the University Community" means all persons, groups, clubs or other organizations that do not come within the definitions of Member of the University Community or Guest.

2.15. "Registered Student Organization" means an organization (including a club), that is officially registered and in good standing with the Department of Student Activities and Organizations.

2.16. “Responsible Officer” means the University Official(s), office(s) or department(s) appointed by the Chancellor to respond to questions about this Regulation.

2.17. “Sculpture Garden” means the approximately 1 acre East Campus space that is bounded on the east by Mendenhall, bounded on the west by Joyner Library and bounded on the north by Erwin and Old Cafeteria.

2.18. “Spontaneous Expressive Activity” means Expressive Activity by Members of the University Community in an Expressive Activity Area which Activity was planned fewer than two business days prior to the date of the Expressive Activity.Spontaneous Expressive Activity is a subset of the broader concept of “Expressive Activity.”

2.19. "Sub-Schedulers" means those University employees and Units who have responsibilities for managing space reservations for Events and Expressive Activities on or in University Property that is outside of the CRO’s scheduling jurisdiction. In doing so, the Sub-Schedulers coordinate with the CRO and other campus officials to facilitate Expressive Activities and Events.

2.20. “True Threats” means statements meant by the speaker to communicate a serious expression of intent to commit an act of unlawful violence to a particular individual or group of individuals.

2.21. “University,” except when otherwise indicated, means ECU (East Carolina University).

2.22. “University of North Carolina System” or “UNC System” means the organization that oversees, regulates and directs the 16 constituent institutions of the University of North Carolina.This University (East Carolina University) is one of those 16 constituent institutions.

2.23. “University Officials” means University employees who are authorized to act on behalf of the University with regard to the subject matter of this Regulation.This includes, but is not limited to, Police Officers, Student Affairs Administrators and Facilities Administrators.

2.24. “University Property” means all grounds, buildings, rooms, auditoriums, facilities, stadiums, or other space or improvements, that are owned, leased, used, or otherwise controlled by the University.

2.25. "University Unit" means the Board of Trustees, the Chancellor, and all University Divisions, Departments, Associated Entities, Registered Student Organizations, Centers, Institutes; and any other organization that is wholly sanctioned, supervised and governed by the University or a division or department of the University.

2.26. "West Campus Designated Forum" means the approximately .5 acre green space located immediately northwest of the intersection of the street designated as “North Campus Loop” and the street designated as “East Campus Loop,” and bounded on the east by a parking lot, which site affords those in attendance an unobstructed view of any speaker and is easily accessible to event participants. Contact the CRO with questions.

3. Responsibilities and Duties Applicable to All Persons and Organizations Engaging in Expressive Activity Anywhere on University Property

The University supports and encourages Expressive Activity on and in its Property.Thus, subject to this Regulation, Expressive Activity is not to be confined to the Expressive Activity Areas. At the same time, the University recognizes that its primary mission is to provide an environment that is conducive to education, research and patient care. The University has a significant institutional interest in preserving its limited space and employee resources.

3.1. All Persons and Organizations engaging in Expressive Activity (including Spontaneous Expressive Activity) anywhere on or in University Property shall:

3.1.1. Comply with this Regulation and any applicable laws, Policies, Regulations and Rules;

3.1.2. Be liable for any damage to University Property they cause;

3.1.3. Unless officially authorized to do so, refrain from representing that the Person or Organization is speaking on behalf of the University;

3.1.4. Unless officially authorized to do so, pursuant to content-neutral time, place and manner limitations, refrain from placement of any of the following on University Property: stages, podiums, chairs, tables, vehicles, trailers or any object that will pierce or be driven into any grounds or buildings;

3.1.5. Have at least one responsible person physically present for the duration of the Expressive Activity, who shall, upon request by a University Official, identify him/herself for the purpose of facilitating communications;

3.1.6. At the conclusion of the Expressive Activity, remove and properly dispose of all garbage, signs, placards, papers, flyers and other materials that remain in the area of the Expressive Activity. If this is not accomplished, the Person or Organization organizing or sponsoring the Expressive Activity may be held financially responsible. Any items left behind or unattended (including memorials) may be removed by University Officials at the conclusion of the Expressive Activity; and

3.1.7. Whenever possible, hold Expressive Activities in locations that are accessible to persons with disabilities.When in doubt about accessibility, the ECU ADA Coordinator should be contacted with sufficient lead time to make a determination and/or provide modifications to the location in order to enhance accessibility.

3.2. Before moving or limiting a planned or ongoing Expressive Activity, the University will first attempt to avoid or minimize any negative impact on the Activity. If a move or limitation becomes necessary, the University will allow and facilitate alternative means of expression whenever possible.

3.2.1. A planned or ongoing Expressive Activity on or in University Property may be moved or limited:

3.2.1.1.To the extent it is likely to produce a clear and present danger of serious bodily injury or substantial damage to University property or grounds based on prior experience in the same or similar circumstances; or

3.2.1.2. Upon the occurrence of:

3.2.1.2.1. Circumstances beyond the control of the University, such as facility infrastructure disruption and/or weather related conditions;

3.2.1.2.2. Bonafide unanticipated needs of the University for use of the space; or

3.2.1.2.3. Material and Substantial changes in the needs or size of the scheduled Activity.

3.2.2. An ongoing Expressive Activity on or in University Property may be moved or limited to the extent it Materially and Substantially:

3.2.2.1. Disrupts another Expressive Activity, including impeding others from participating in, listening to or observing such Expressive Activity;

3.2.2.2. Disrupts University activities or functions;

3.2.2.3. Interferes with lawful forms of dissent;

3.2.2.4. Obstructs or Materially and Substantially limits ingress or egress to University Property, including building entrances, walk-ways or rights-of-way of vehicular or pedestrian traffic;

3.2.2.5. Provokes immediate violence ("fighting words");

3.2.2.6. Impedes the classroom environment, laboratory or research environments;

3.2.2.7. Interferes with patient care environments or treatment of patients;

3.2.2.8. Exceeds the capacity of the University Property where the Expressive Activity is taking place such that persons or property are in danger of harm;

3.2.2.9. Exposes another to a True Threat;

3.2.2.10. Constitutes a violation of the University Chancellor’s content-neutral designation of a curfew period pursuant to N.C.G.S. § 116-212;

3.2.2.11. Violates applicable laws or regulations, including:

3.2.2.11.1. Disorderly conduct under N.C.G.S. § 14-288.4;

3.2.2.11.2. Disruption under N.C.G.S. § 143-318.17;

3.2.2.11.3. Trespass under N.C.G.S. 14-159.13

3.2.2.11.4. Invasion of privacy or confidentiality on a matter not involving a matter of public concern;

3.2.2.11.5. Expression that a court applying controlling law has lawfully and finally deemed to be defamation that is unprotected by the First Amendment;

3.2.2.11.6. Obscenity; or

3.2.2.11.7. Harassment.

4. Expressive Activity

With the exception of Spontaneous Expressive Activity (see below) all Persons and Organizations planning to engage in Expressive Activity on or in University Property that is under the scheduling jurisdiction of the CRO must pre-schedule with the CRO or its Sub-Schedulers, pay applicable charges, and comply with published content-neutral and publicly available Regulations, Rules and SOP’s.If the particular University Property requested is not within the jurisdiction of the CRO or Sub-Schedulers, they will direct such requestors to the persons or Units, if any, that have jurisdiction over those areas, and this Regulation will continue to apply.

4.1. Spontaneous Expressive Activity

4.1.1. Without prior notice or prior payment, but in all cases subject to this Regulation, Members of the University Community and their Guests may assemble and engage in Spontaneous Expressive Activity in the Expressive Activity Areas.

4.1.2. Although not required, those planning to engage in Spontaneous Expressive Activityare strongly encouraged to provide prior notice to the Central Reservations Office ("CRO") with as much lead time as possible. The CRO offers guidance in scheduling and planning, and works with campus facilities and service providers to help ensure a successful and safe event. The CRO may also be helpful in identifying alternative space if an area is already reserved or in use.

5. Expressive Activity by Non-Members of the University Community

Free of charge, but in all cases subject to this Regulation, Non-Members of the University Community may use the East Campus Designated Forum or the West Campus Designated Forum for Expressive Activity, if they provide the CRO with a completed written request for use of the particular Designated Forum at least two (2) business days prior to the Expressive Activity.

6. Academic Freedom shall not be Adversely Impacted

All Members of the University Community share the responsibility for maintaining an environment in which Academic Freedom flourishes and in which the rights of each member of the academic community are respected. This Regulation shall not be interpreted as limiting the right of Academic Freedom as set forth in the University’s Faculty Manual.

7. Potential Sanctions and Procedural Safeguards for Students and Employees of the University

7.1. Potential Sanctions

7.1.1. Any student or employee who has Materially and Substantially disrupted or interfered with official meetings or other official functions of the UNC System, another UNC System constituent institution, the University, or any Unit, Associated Entity or board of any of these; who is found to have Materially and Substantially interfered with the protected Expressive Activities of other individuals or groups; or who is found to have violated this Regulation, is subject to the full range of applicable disciplinary sanctions, up to and including suspension or expulsion (applicable to students) and termination (applicable to employees). In conformance with existing University policies, repeat violations may be considered when determining the severity of disciplinary sanctions.

7.2. Procedural Safeguards for Students

7.2.1. In all student disciplinary cases where disciplinary action is proposed for a student who allegedly Materially and Substantially disrupted or interfered with official meetings or other official functions of the UNC System, another UNC System constituent institution, the University, or any Unit, Associated Entity or board of any of these; or who is alleged to have Materially and Substantially interfered with the protected Expressive Activities of other individuals or groups, is entitled to a disciplinary hearing in compliance with (a) applicable published University Policies, Regulations and Rules, including but not necessarily limited to the Student Conduct Process Regulation; and (b) UNC Policy Manual, Section 700.4.1, including the following:

7.2.1.1. The right to receive advance written notice of thecharges;

7.2.1.2. The right to review the evidence in support of thecharges;

7.2.1.3. The right to confront witnesses againstthem, in the manner required by law, which may differ depending on the violation alleged;

7.2.1.4. The right to present adefense;

7.2.1.5. The right to callwitnesses;

7.2.1.6. A decision by an impartial arbiter orpanel;

7.2.1.7. The right of appeal;and

7.2.1.8. The right to active assistance of counsel, consistent with N.C. G.S. §116-40.11.

7.3. Procedural Safeguards for Employees

7.3.1. Whenever disciplinary action is proposed for an employee who allegedly Materially and Substantially disrupted or interfered with official meetings or other official functions of the UNC System, another UNC System constituent institution, the University, or any Unit, Associated Entity or board of any of these; who is alleged to have Materially and Substantially interfered with the protected Expressive Activities of other individuals or groups; or who is alleged to have violated this Regulation, the employee is entitled to the same procedural safeguards that already apply by virtue of the employee’s classification. (Discontinuation of at-will employment without cause and non-renewal of contractual employment shall not be considered to be disciplinary action) See a non-exhaustive list of procedural safeguards below.

7.3.1.1 Faculty Members are entitled to any and all applicable procedural safeguards set forth in University Policies, Regulations and Rules, including but not necessarily limited to, the Faculty Manual and sections 603, 604, and 609 of the UNC System Code;

7.3.1.2. EHRA Non-Faculty Employees are entitled to any and all applicable procedural safeguards set forth in University Policies, Regulations and Rules, including but not necessarily limited to, the Employment Policy for Employees Exempt from the State Human Resources Act; the Review Process and Procedure for EHRA Non-Faculty Employees; and sections 300.1.1, 300.2.1 of the UNC Policy Manual; and

7.3.1.3. SHRA and CSS Employees are entitled to any and all applicable procedural safeguards set forth in University Policies, Regulations and Rules, including but not necessarily limited to, the SHRA and CSS Employee Handbooks; and the policies of the Office of State Human Resources.

7.4. Potential Sanctions: Guests and Non-Members of the University Community

7.4.1. Any Guest or other Non-Member of the University Community who has Materially and Substantially disrupted or interfered with official meetings or other official functions of the University, or any Unit, Associated Entity or board of any of these; who is found to have Materially and Substantially interfered with the protected Expressive Activities of other individuals or groups; or who is found to have violated this Regulation, is subject to removal from the vicinity to the extent necessary to end the Material and Substantial disruption, as may be allowed by law. In addition, if the conduct occurred on University Property, then the Guest or other Non-Member of the University Community may be barred from University Property, and/or subject to criminal sanctions, to the extent allowed by law.

7.5. The Freedom of Expression Rights of Dissenters and Counter-Protestors

7.5.1. Dissenters and counter-protestors have the same free speech rights as those who are conducting or attending a planned meeting or Expressive Activity.Any students, employees, Guests and/or Non-Members of the University Community who Materially and Substantially disrupt the protected rights to freedom of expression and/or Expressive Activities of dissenters or counter-protestors are subject to the same potential sanctions set forth in this Regulation.

8. Dissemination of Information

The University will disseminate information to the Campus Community describing the University’s published Policies, Regulations and Rules governing Expressive Activities, free speech and free expression, including links to where the information may be found on the University website. This information will be provided:

8.1. To matriculating students as part of each new student orientation program;

8.2. Annually, during the first week in September, to all then-current students;

9.3. Annually, during the first week in September, to all University employees; and

8.4. To outside parties upon request.

9. Appointment of Responsible Officer and Deputy Responsible Officers

9.1. The Chancellor shall appoint one or more University Officials, offices or departments to serve as the Responsible Officer. The Chancellor, in his/her discretion, may appoint Deputy Responsible Officers in other offices or departments as may be necessary to assist the Responsible Officer.

9.1.1. The Chancellor/Designee will notify the UNC System Vice-President and General Counsel of the identity of the Responsible Officer, and any changes to that designation.

9.1.2. The Responsible Officer is the University Counsel and Vice Chancellor for Legal Affairs, who may be contacted with questions about this Regulation at 252-328-6940.