The College Fix

Indiana University recently walked back relatively new rules that banned free speech activities after hours, but critics say there’s more work to be done to ensure the institution’s seven-month-old “expressive activity” policy passes legal muster.

The American Civil Liberties Union sued the school in October, challenging the constitutionality of the policy that banned activities such as camping and protests, even peaceful ones, between the hours of 11 p.m. and 6 a.m.

The lawsuit alleged that the policy, enacted in response to student protests over the Israel-Palestinian conflict, is overly broad and violates the First Amendment.

Steven Sanders, a constitutional law professor at Indiana University Maurer School of Law, told The College Fix that “the original policy was so incompetently drafted that it prohibited any and all First Amendment-protected ‘expressive activity’ between 11 p.m. and 6 a.m. This meant that someone walking across campus at 2 a.m. wearing a political t-shirt, or sending an email, would technically have been in violation of the policy.”

In response, the school clarified its policy in November to only prohibit “protesting,” “making speeches,” and “circulating petitions” overnight. The policy also allows “IU Community Members” to “spontaneously and contemporaneously assemble and distribute literature.”

Despite the school’s attempts to soften their ban on late-night “expressive activities,” the ACLU is not satisfied. It amended its complaint on Nov. 26, arguing IU’s policy is still substantially overbroad, not appropriately tailored, and violates the First Amendment. That lawsuit is ongoing.

Since the original policy went into effect in August, some have argued the policy has potentially been unequally enforced.

Sanders said that “broad, unclear regulations on speech create worries about the potential for arbitrary enforcement.”

Several individuals — including students and faculty — have been cited for violating the policy when they hosted silent candlelight vigils after 11:00 p.m. However, when College GameDay came to Bloomington, some critics questioned whether students who gathered early to gain entry into Memorial Stadium violated the policy.

Sanders said that while the revised policy is more specific than its previous form, it still doesn’t clearly define certain terms.

“Who gets to define what constitutes a ‘protest?’ If one person is speaking loudly to a group of two other people, is that person ‘making a speech’ in violation of the policy? You get the impression that even the revised policy was not at all well thought-through,” he told The Fix.

The policy should outline specific criteria, such as restricting amplified sound or limiting the size of overnight gatherings, rather than relying on vague terms like “protest,” he said.

Laura Beltz, director of policy reform for the Foundation for Individual Rights and Expression, told The College Fix that although the revision to the blanket overnight ban is a step in the right direction, the First Amendment carve outs are still undefined and not clear enough for students to know the policy and follow it.

“IU may be relying on statutory definitions of terms like assembly and protest, I’m not sure if that’s the case or not, but expecting students to cross-reference their university policy with state codes is unreasonable,” Beltz said.

“Campus safety is always a concern, and to that end, universities can enact reasonable time, place, and manner restrictions. But if you don’t tell students when spontaneous assembly crosses the line into prohibited protest, this creates more confusion,” she said via email.

Since the ACLU amended its complaint in November, the case has been consolidated with another lawsuit involving Bloomington residents and an IU student, each of whom were arrested for participating in the April 2024 demonstrations. The case is ongoing.

MORE: Indiana University board imposes limits on protests

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