Protests in Outdoor Areas on EWU’s Campus
1. Does EWU have any rules regarding protests and demonstrations on campus?
Yes. EWU’s rules regarding protests and demonstrations in outdoor areas on the Cheney campus are contained in WAC 172-141 (Use of Outdoor Areas for First Amendment Activities). These rules govern protests in outdoor areas – not inside of EWU’s buildings. This FAQ is limited to addressing speech in outdoor areas on campus and does not address issues involving speech inside of EWU facilities.
2. Why does EWU allow protests on campus?
EWU is a public university. As a public university, EWU is required to comply with the First Amendment. The First Amendment protects people’s rights to free speech. This includes the right to protest on public property, including EWU’s property. Additionally, EWU believes, “[a]ctive participation in dialogue and expression is a vital part of higher education. Listening to and engaging with various viewpoints transforms students into informed citizens. Thus, the university believes freedom of expression is indispensable and is committed to respecting and promoting first amendment rights.” WAC 172-141-010.
3. Are protestors limited to a certain area on campus? Do we have free speech zones?
Some universities limit protests to a certain space on campus. These areas are frequently referred to as “free speech zones.” In the last few years, numerous courts have struck down free speech zones as violating the First Amendment. As a result, EWU does not have any free speech zones. Protestors are free to demonstrate in any outdoor area on campus except within 100 feet of University House. WAC 172-141-020.
4. Are people from outside of the campus community allowed to protest/demonstrate on campus?
Yes. Although campus property is primarily dedicated to the education of EWU students, it is open to the public. The public is permitted to protest on campus as long as they comply with all of the rules contained in WAC 172-141.
5. Does someone need to obtain a permit to protest on campus?
No. EWU does not require a permit to protest in outdoor spaces. If people want to protest off campus within the limits of the City of Cheney, they may be required to obtain a permit from the City of Cheney.
6. Do protestors need to notify anyone if they are planning a protest on campus?
Maybe. EWU encourages all protestors to notify the EWU Police Department at least 24-hours in advance. The EWU Police Department’s phone number is 509-359-4021. If an activity is likely to attract 100 or more protestors or counter-protestors, the group is required to contact the EWU Police Department at least 3 days in advance to ensure adequate safety measures are in place.
7. What if the speech is hateful, disrespectful, or inappropriate?
The First Amendment protects speech in outdoor spaces on a public university’s campus, even speech that is hateful, disrespectful, and inappropriate. EWU cannot prohibit speech even if students, faculty, and administration disagree with what the protestors are saying unless the speech is not protected (see answers to questions #8 and #9).
8. Are there any types of speech that are not protected by the First Amendment and EWU’s rules?
Yes. There are several categories of speech that are not protected by the First Amendment and EWU’s rules. These include: (a) obscene material; (b) defamation or libelous material; (c) incitement of imminent lawlessness; (d) true threats; (e) fighting words; and, (f) speech or conduct that causes a material and substantial disruption of university activities. WAC 172-141-030.
EWU also prohibits people from engaging in harassment. EWU defines harassment “as conduct by any means that is sufficient severe, pervasive, or persistent, and objectively offensive so as to threaten an individual or limit the individual’s ability to work, study, participate in, or benefit from the university’s programs or activities.” WAC 172-141-050(5).
Finally, people are prohibited from engaging in any criminal behavior on campus. This includes, but is not limited to, assault, disorderly conduct, failure to disperse, obstruction, resisting arrest, or hate crimes. For more information about hate crimes, please see the answer to question #9. More information about the application of some of these criminal laws in the context of a protest is available at: https://www.aclu-wa.org/docs/know-your-rights-guide-protests.
9. Can speech ever constitute a hate crime?
Yes. It is a crime in Washington State to commit a hate crime. According to RCW 9A.36.080, hate crimes includes instances where a person maliciously and intentionally commits one of the following acts because of the person’s perception of the victim’s race, color, religion, ancestry, national origin, gender, sexual orientation, gender expression or identity, or mental, physical, or sensory disability: (a) causes physical injury to the victim or another person; (b) causes physical damage to or destruction of the property of the victim or another person; or, (c) threatens a specific person or group of persons and places that person, or members of the specific group of persons, in reasonable fear of harm to person or property. More information about hate crimes is available at: https://app.leg.wa.gov/RCW/default.aspx?cite=9A.36.080.
10. What is the role of EWU’s Police Department?
The EWU Police Department’s primary concern is the safety of our university community. They may be present during a protest and may implement certain safeguards, such as taping off areas or requiring space between groups, for safety reasons. Unfortunately, security is a real concern as there have been several incidents at other universities where people have been injured or killed during a protest. Depending on the size and nature of a protest, EWU’s Police Department may request assistance from other law enforcement agencies.
To make sure there are adequate safety measures in place, EWU encourages all protestors to contact EWU’s Police Department in advance. Additionally, if you are aware of any outside group that may be coming to campus to engage in a protest/demonstration, please notify the EWU Police Department.
11. Can we drown out the protestors? Is a heckler’s veto permissible?
First, the City of Cheney’s noise ordinances apply to campus property. Any use of sound amplification must comply with the City’s noise ordinance. Second, a sound amplification device may only be used at a volume that does not disrupt or disturb the normal use of university classrooms, offices, laboratories, meeting spaces, or any previously scheduled university activity. WAC 172-141-050(2).
The concept of silencing one person’s speech by drowning out such speech is sometimes referred to as a “heckler’s veto.” While it is permissible for counter-demonstrators to fight speech with speech, they must understand it is impermissible to engage in violence or deny the original protestor the right to speak. The answer to speech that is hateful, disrespectful, or disagreeable is more speech, not violence or censorship.