Would James Madison have been able to post his The Federalist Papers at JMU?

No – not if the new proposed JMU policies concerning free expression on campus are approved. The Federalist Papers were published under the pseudonym “Publius.”   Had Madison, Hamilton, or Jay wanted to  post their essays on a campus governed by similar policies, they would, under the proposed policy, have had to have been sponsored by a “University [JMU] contact person” with official approval from “University [JMU] Event Management” – which would perhaps not have been forthcoming. Similarly, any student today, unaffiliated with an academic department or student organization, would not under the proposed policies be free to post their own Federalist Papers. 

But, as the Supreme Court said in Talley v. California, “Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all.”  (see also Cohen v. California, another landmark free speech case)

In this and other ways the proposed changes to policies 1121 and 3104 would chill free expression, not encourage it.

 More specifically:   

The proposed new version of 1121 is a step back from JMU’s previously more robust protection for free expression.  The standing version of 1121 permits expressive activity on outdoor areas of campus (other than controlled areas) without prior approval. By contrast, the proposed new version restricts all “outdoor events around the Quad,” without prior approval. The proposed new version is dangerously unclear:

• It is unclear regarding the procedures for obtaining that approval
• It is unclear regarding the  circumstances under which student organizations may receive permission to demonstrate on the Quad
• It is unclear as to what the area “around” the Quad includes.  

Similarly, the proposed new version of 3104, if approved, will chill free expression.

 It requires that “all information and/or announcements must be approved by JMU Event Management” in addition to the requirement that the postings comply with the policy guidelines. This sort of pre-approval requirement goes too far. It will inevitably chill free expression.

• It suggests that no individual student can post materials: it only permits postings by a JMU student organization, department, or other university organization.  
• It requires that all items include the “name of the JMU contact person” when a JMU department or student organization wishes to post an item.  As noted above, this  effectively prohibits anonymous postings, which are typically protected under the First Amendment.  Again: as the Supreme Court said in Talley v. California, “Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all.”

JMU should designate at least some bulletin boards where students can post freely, without pre-approval, provided the postings don’t violate JMU policy or the law.

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In sum: 

The proposed changes make Policies 1121 and 3104) incredibly exhaustive.   In the words of FIRE they “make it difficult to engage in expressive activity without prior approval, and may have the effect of discouraging protest and other expressive activity.”    They put too much power to control speech and expression in the hands of “Event Management” – staff members whose function should not include gate-keeping. 

In the words of the national AAUP office, “the spirit seems suppressive rather than encouraging of expression….the word ‘draconian’ almost comes to mind.”  Another word would be legalistic.  For the university to approve these lawyerly and censorious policies would be  to  trade unscripted and spontaneous freedom of expression, with its risks, for order and decorum.  (The proposed changes to Policy 3104, while disavowing an intention to control the content of materials to be posted,  include a “recommendation” that posted materials be “in good taste.” This kind of admonition has no place in free expression policy.)

The proposed changes are regressive.  They would make expression in the physical space shared by the academic community rarer, not freer. This is inimical to the academic mission of the university.