(Not) Ready for Their Close-Up: Camera-Shy Colleges Lose First Amendment Focus in Restricting Campus Filming

Abstract

From gameday to graduation day, college campuses are some of the most-photographed spots in the United States. With their iconic architectural landmarks and rolling greenspaces, campuses are a natural setting for those interested in shooting photos or video, amateurs and professionals alike. And for better or worse, colleges are regularly in the news – whether for research breakthroughs or athletic scandals – which naturally attracts journalistic photography and videography as well.

Yet, despite their park-like atmosphere, state colleges frequently enforce restrictions on photography and videography well beyond what would be regarded as constitutionally permissible in parks and other public spaces. In particular, colleges often insist on pre-approving scripts for films, including news documentaries, conditioning permission to film on a subjective assessment that the script portrays the college flatteringly. This type of viewpoint-based screening far exceeds what would be constitutional on other government property. The question is: Are state college campuses so different from other public spaces to justify rewriting the First Amendment rulebook? This article concludes that the answer is “no,” and that heavy control over filmmaking on college campuses is irreconcilable with their recognized status as havens for the free exchange of ideas.

Much recent scholarship has been devoted to the free-speech climate on college campuses, but this article addresses the issue from a unique and underappreciated perspective: That of the photojournalist or videographer who is denied access to otherwise-public campus property. The article looks at the evolving consensus – rattled by a dissonant recent decision from the D.C. Circuit – that photography and filming are acts of constitutionally protected expression, especially where the shooter is seeking to inform the public about the performance of government institutions. The article then examines the “public forum” status of college campuses, and the recent state legislative trend of declaring the outdoor areas of state colleges to be safe harbors for free expression – which confers forceful First Amendment protection that cannot be abridged simply because colleges find filming to be inconvenient, or the subject matter unflattering.

The authors examine and critique commonplace features seen in dozens of publicly available filming policies enforced by colleges throughout the U.S., and where those policies are most vulnerable to First Amendment challenge. The authors flag several recurring First Amendment issues in campus filming rules, including the failure to impose any standards to prevent decisionmakers from withholding permits based on aversion to the speaker’s viewpoint – a red flag of unconstitutionality, regardless of the forum status of the property. Heavily restricting access to campus property for gathering images, the authors caution, will inhibit newsgathering and documentary filmmaking that can shine scrutiny on campus safety and other issues of public concern. The article concludes with advice for what a constitutionally sound filming policy might look like, pointing to a recently enacted Florida statute that explicitly declares filming and photography to be legally protected expression on campus – a potential model for the rest of the country.