Could a public college limit protests at its entrance without violating free-speech rights?

Plain-English summary

Denmark Technical College’s public-safety chief asked about protests near the college entrance, including permission, amplified sound, signs, and roadside placement. The Assistant Deputy AG quoted Section 16-17-420, which addressed willful or unnecessary interference with students or teachers and entry or loitering without permission. He said its interference language was not confined to activity physically on school property, so disruptive conduct near an entrance might fall within it.

The opinion stressed First Amendment limits. Officials could not suppress a protest because they disliked its message. The analysis depended on whether the site was a traditional or opened public forum, whether the activity actually interfered or threatened to interfere with school operations, and whether any time, place, and manner limit was reasonable and content-neutral. Noise alone might not justify a restriction if it did not disrupt classes. He also identified a possible trespass provision but applied the same constitutional caution. The letter offered a fact-dependent framework rather than a blanket permit requirement or a ruling on a specific demonstration.

Currency note

This opinion was issued in 1997. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Could officials prohibit a protest because of its viewpoint? A: No. The author said restrictions could not rest on agreement or disagreement with the message.

Q: Could the disturbance statute reach activity outside the campus boundary? A: The opinion said its interference language was not limited to school property, though application still had to respect free-speech protections.

Q: Was amplified sound automatically forbidden?
A: No. The letter focused on actual or likely interference with school activities and reasonableness in the particular setting.

Q: Did the AG impose a universal advance-permission rule? A: No. He discussed the statute and constitutional factors, leaving application to the facts of each location and protest.

Background and statutory framework

The opinion applied Section 16-17-420 to school disturbance and discussed Section 16-11-620 as a possible trespass provision. It cited Herman v. University of South Carolina and Bistrick v. University of South Carolina as prior cases involving a campus takeover, and In The Interest of Joseph B. when discussing school-property authority.

Citations and references

Statutes discussed: Section 16-17-420; Section 16-11-620. Cases discussed: Herman v. University of South Carolina; Bistrick v. University of South Carolina; In The Interest of Joseph B.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/july-23-1997/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/12/97july23bagnall.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES MOLONY CONDON
ATTORNEY GENERAL

July 23, 1997

James T. Bagnall, Chief
Department of Public Safety
Denmark Technical College
P. 0. Box 327
Denmark, South Carolina 29042-0327
Re: Informal Opinion
Dear Chief Bagnall:
i

You have sought information regarding "any applicable law .. . [with respect] to picketing or protesting at the entrance or around a State supported college." You further state that

i

L;;,

[t]he issue is not to prevent this activity totally in that there is a first amendrilent right, however, a question has arisen in reference to some type of notice or permission as well as parameters for the function i.e. amplified sound, type and content on signs, whether the signs must be held by the protesters and placement of signs along the roadway. I have been advised by Sheriff Darnell of Bamberg County that there is not a county ordinance that regulates any type of picketing or protest, however, the S.C. Code 16-17420. Disturbing schools does make unlawful "... For any person to (a) enter upon any such school or college premises or (b) loiter around the premises, except on business, without the permission of the principle or president in charge .... "

&. ,.

~- R;~1,RT c, 'lfNNIS BUILDING

~~~)

•

POST OFFICE Box I l549

•

COLUMBIA, S.C. 29211-1549

•

TELEPHONE:

803-734-3970

•

FACSIMILE: 803-253-6283

Chief Bagnall
Page 2
July 23, 1997
LAW I ANALYSIS

The statute which you reference, S.C. Code Ann. Sec. 16-17-420 provides
as follows:
[i]t shall be unlawful:
(1) For any person wilfully or unnecessarily (a) to

I
I

interfere with or to disturb in any way or in any place the
students or teachers of any school or college in this State, (b)
to loiter about such school or college premises or (c) to act in
an obnoxious manner thereon; or
(2) For any person to (a) enter upon any such school or
college premises or (b) loiter around the premises, except on
business, without the permission of the principal or president
in charge.
Any person violating any of the provisions of this
section shall be guilty of a misdemeanor and, on conviction
thereof, shall pay a fine of not less than one hundred dollars
nor more than one thousand dollars or be imprisoned in the
county jail for not less than thirty days nor more than ninety
days.
This statute has been referenced in cases involving the attempted "takeover" by students
at the University of South Carolina on May 7, 1970. The statute was cited both in
Herman v. University of South Carolina, 341 F.Supp. 226 (D.S.C.1971) as well as
Bistrick v. University of South Carolina, 324 F.Supp. 942 (D.S.C.1971). In neither of
these cases, however, was the statute really construed beyond the Court's simply noting
that the law played a role in the Court's determination that
a student does not abandon his Constitutional rights upon his
registration into college, [as] the First Amendment loses none
of its awesome force when taken to the campuses of America
and that the right of students and teachers to freedom of
expression is preserved. However, the Court [also recognizes]
... the difference between freedom of expression and expression which takes the form of action that materially and

Chief Bagnall
Page 3
July 23, 1997
substantially interferes with the normal activities of the
institution or invades the rights of others.
Herman, supra at 230.
While there is not much other law in South Carolina concerning your question,
there is a great deal of authority elsewhere. The following general statement of law is
somewhat helpful:
[s]tudents have the right to express their views individually or
collectively with respect to matters of concern to the college
or to a larger community, and they are neither required to
limit their expression of views to the campus nor to confine
their opinions to matters that affect the academic community
only. Disciplinary action taken again students may not be
based on the disapproved content of protected speech, and the
mere dissemination of ideas, no matter how offensive to good
taste, on a state university campus may not be shut off in
name alone of "conventions of decency."
The achievement of a state university's educational
goals would preclude regulations unduly restricting the
freedom of students to express themselves; and a state cannot
force students to forfeit their constitutionally protected right
of freedom of expression as a condition to their attending a
state-supported institution.
Although students have a right to demonstrate and
voice opinions on issues of the day, universities, for the sake
of order, may establish reasonable rules of conduct to govern
such student activity, and reasonable regulations with respect
to the time, place and manner in which student groups conduct
their speech-related activities must be respected.
Associational activities may not be tolerated where they
infringe reasonable campus rules, interrupt classes or substantially interfere with the opportunity of other students to obtain
an education. Conduct involving rowdiness, rioting, destruction of property, reckless display of impropriety or any
unjustifiable disturbance of public order on or off a university

Chief Bagnall
Page 4
July 23, 1997
campus is indefensible, however sincere to some cause or
ideal.
14 A C.J.S., Colleges and Universities, § 36.

I
I

In addition, the United States Supreme Court has set forth the following general statement
concerning the balancing of First Amendment rights on a college campus with the
necessity of university or college officials to preserve order and maintain an environment
conducive to peaceful study:

[t]his Court has recognized that the campus of a public
university, at least for its students, possesses many of the
characteristics of a public forum. See generally Police Dept.
of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d
212 (1972); Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13
L.Ed.2d 471 (1965). "The college classroom with its surrounding environs is peculiarly 'the marketplace of ideas.' "
Healy v. James, 408 U.S. 169, 180, 92 S.Ct. 2338, 2345, 33
L.Ed.2d 266 (1972). Moreover, the capacity of a group or
individual "to participate in the intellectual give and take of
campus debate ... [would be] limited by denial of access to the
customary media for communicating with the administration,
faculty members, and other students." Id., at 181-182, 92
S.Ct., at 2346. We therefore have held that students enjoy
First Amendment rights of speech and association on the
campus, and that the "denial [to particular groups] of use of
campus facilities for meetings and other appropriate purposes"
must be subjected to the level of scrutiny appropriate to any
form of prior restraint. Id., at 181, 184, 92 S.Ct., at 2346,
2347.
At the same time, however, our cases have recognized that
First Amendment rights must be analyzed "in light of the
special characteristics of the school environment." Tinker v.
Des Moines Independent School District, 393 U.S. 503, 506,
89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969). We continue to
adhere to that view. A university differs in significant respect
from public forums such as streets or parks or even municipal
theaters. A university's mission is education, and decisions of
this Court have never denied a university's authority to impose

Chief Bagnall
Page 5
July 23, 1997
reasonable regulations compatible with that mission upon the
use of its campus and facilities. We have not held, for
example, that a campus must make all of its facilities equally
available to students and nonstudents alike, or that a university
must grant free access to all its grounds or buildings.
Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 273, 70 L.Ed.2d 440 (1981).
While these two general statements are clearly relevant and helpful, the difficulty
obviously lies in their application to a particular situation. Each factual circumstance is
different, and courts have held that one set of facts where the actions of university or
college officials actions are valid, would be unlawful where the facts are different. I will
now review the various cases which I have found in this area with the hope that these
authorities will offer you additional guidance.
For example, it has been held that a campus rule prohibiting the distribution of
literature on campus without a permit was constitutional on its face where the affidavit
of the Director of Student Activities attested that the distribution was not an "event"
subject to a five-week waiting period and that such permits were routinely granted. City
of Parma v. Manning, 33 Ohio App.3d 67, 514 N.E.2d 749 (1986).
And in Buttny v. Smiley, 281 F.Supp. 280 (D.Colo.1968), the Court held that state
university students who participated in protest demonstrations at university placement
service on campus could not exclude other persons from free movement in the area.
The California Court has ruled that a state university's requirement that students
must conform to the community's accepted norms of propriety with respect to loud,
repeated use of objectionable terms was reasonably necessary for the orderly conduct of
protests on campus and thus valid. Goldberg v. Regents of University of California, 57
Cal.Reptr. 463 (1967). There, the Court concluded as follows:
[t]he question here is whether the University's requirement
that plaintiffs conform to the community's accepted norms of
propriety with respect to the loud, repeated public use of
certain terms was reasonably necessary in furthering the
University's educational goals. We note that plaintiffs were
not disciplined for protesting the arrest of Thomson, but for
doing so in a particular manner. The qualification imposed
was simply that plaintiffs refrain from repeatedly, loudly and
publicly using terms which, when so used, clearly infringed on

Chief Bagnall
Page 6
July 23, 1997
the minimum standard of propriety and the accepted norm of
public behavior of both the academic community and the
broader social community. Plaintiffs contention that the
words were used only in the context of their demonstration is
not borne out by the record which indicates that the terms
were used repeatedly, and often out of context, or when used
in context given undue emphasis. The conduct of plaintiffs
thus amounted to coercion rather than persuasion.

I
I

57 Cal.Reptr. at 472. (emphasis added).
Another useful case in this area is State v. Wiggins, 272 N.C. 147, 158 S.E.2d 37,
cert.den. 390 U.S. 1028, 20 L.Ed. 285, 88 S.Ct. 1418. There, it was concluded by the
North Carolina Court that, although public high school students who participated in a
picketing demonstration in front of their school while classes were in session had marched
silently, had not been on school grounds and had neither threatened nor provoked any
violence, their conduct violated a North Carolina statute which made it a misdemeanor
for any person to wilfully interrupt or disturb any public or private school either within
or without the place where such school is held. In Wiggins, the defendants were driven
to a point on the highway in front of the school. They possessed picket signs and walked
up and down a ditch separating the highway from the campus. One of the signs was
addressed to the school principal, and other signs mentioned the name of the school. A
class was being held at the school approximately 10 to 25 feet from the school building.
The students at the school were obviously distracted by the protests. While the teacher
tried to keep the students busy, some of the students stopped what they were doing and
watched the marchers. The defendants argued that the North Carolina statute with which
they were charged with violating, was void for vagueness. The Court rejected this
argument by stating that
[g]iving the words of GS § 14-273 their plain and ordinary
meaning, it is apparent that the elements of the offense
punishable under this statute are: (1) Some act or course of
conduct by the defendant, within or without the school; (2) an
actual, material interference with, frustration of or confusion
in, part all of the program of a public or private school for the
instruction or training of students enrolled therein and in
attendance thereon, resulting from such act or conduct; and (3)
the purpose or intent on the part of the defendant that his act
or conduct have that effect.

I
Chief Bagnall
Page 7
July 23, 1997
The Court further noted that the warrants charged the defendant "in plain and precise
language with each element of the statutory offense at the specified time and place by the
specified conduct of picketing in front of the school, which picketing interfered with
classes at the school." 158 S.E.2d at 43.

I
I

I
Ff'
l'

I

With respect to the First Amendment issue, the Court distinguished between
protected freedom of speech and the "protection of the freedom of others and of its own
[the State's] paramount interests, such as its interest in the education of its children [and
thus the State] ... may impose reasonable restraints of time and place upon the exercise
of both speech and movement." The North Carolina statute in question, which is,
incidentally, somewhat similar to our own Section 16-17-420, was valid, in the view of
the Court, because it
... is not discriminatory upon its face. It is universal in its
application. Anyone who does that which is prohibited by the
statute is subject to its penalty ....
Neither the statute nor its application in this case has
the slightest relation to State approval or disapproval of the
ideas expressed on the signs carried by the defendants, or of
the position taken by the defendants in their controversy,
whatever it may have been, with the principal of the school.
Like the ordinance involved in Kovacs v. Cooper, [336 U.S.
77, 69 S.Ct. 448, 93 L.Ed. 513], this statute does not undertake censorship of speech or protest. As the Court said in the
Kovacs case: "City streets are recognized as a normal place for
the exchange of ideas by speech or paper. But this does not
mean the freedom is beyond all control." Again in Schneider
v. State of New Jersey, 308 U.S. 147, 60 S.Ct. 146, 84
L.Ed.2d 155, the Court, recognizing the authority of a
municipality, as trustee for the public, to keep its streets open
and available for the movement of people and property, said,
by way of illustration, a person could not exercise his liberty
of speech "by taking his stand in the middle of a crowded
street, contrary to traffic regulations, and maintain his position
to the stoppage of all traffic .... " G.S. § 14-273 does not
have "the objectionable quality of vagueness and overbreadth"
thought by the United States Supreme Court to render void the
Virginia statute under examination in NAACP v. Button, 371
U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405. G.S. § 14-273 is not

Chief Bagnall
Page 8
July 23, 1997
"susceptible of sweeping and improper application" so as to
prevent the advocacy of unpopular ideas and criticisms of
public schools or public officials.

I
I

Unquestionably, "the hours and place of public discussion can be controlled" by the State in the protection of its
legitimate and vital public interest in the efficient operation of
schools, public or private. See Saia v. People of State of New
York, supra; Kovacs v. Cooper, supra. The classic statement
by Mr. Justice Holmes in Schenck v. United States, 249 U.S.
47, 39 S.Ct. 247, 63 L.Ed. 470, "The most stringent protection
of free speech would not protect a man in falsely shouting fire
in a theatre and causing a panic," is still regarded by the Supreme Court of the United States as a correct interpretation of
the First Amendment. The education of children in schools,
public or private, is a matter of major importance to the State,
at least as significant to as the free flow of traffic upon a city
street.
In Cox v. State of Louisiana, supra, the Court recog-

nized that picketing and parading are subject of state regulation, even though intertwined with expression and association.
There the Court, quoting from Giboney v. Empire Storage &
Ice Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834, said "[I]t
has never been deemed an abridgment of freedom of speech
or press to make a course of conduct illegal merely because
the conduct was in part initiated, evidenced, or carried out by
means of language, either spoken, written or printed."
Accordingly, the Court there held valid on its face a state
statute prohibiting picketing and parading in or near a building
housing a state court, with the intent of obstructing or
impeding the administration of justice. The Court said,
"Placards used as an essential and inseparable part of a grave
offense against an important public law cannot immunize that
unlawful conduct from State control." It deemed "irrelevant"
the fact that "by their lights," the marchers in that case were
seeking justice. Similarly, it is irrelevant here that the
defendants may have been "by their lights: seeking the
improvement of the educational processes at Southwestern
High School. Whatever their motives, the result of their

Chief Bagnall
Page 9
July 23, 1997

l

I
I

wilful activities was the disruption of those processes at that
school. That is what the statute forbids and, in so doing, it
does not violate limitations imposed upon the State by the
First Amendment to the Constitution of the United States, now
deemed by the Supreme Court of the United States to be made
applicable to the states by the Fourteenth Amendment.
It is also irrelevant that the defendants marched silently,
were not on the school grounds, and neither threatened nor
provoked violence. Their actions can admit of no interpretation other than that they were planned and carried out for the
sole purpose of attracting and holding the attention of students
or teachers in the Southwestern High School at a time when
the program of the school required those students and teachers
to be engaged in its instructional and training activities. There
can also be no doubt that they succeeded in this purpose. The
uncontradicted evidence as to the defendant Frinks is that,
before the marching began, this statute was called to his
attention and explained to him in substance, to which he
replied, "I don't care anything about what is in the Statute
Books." In the light of the uncontradicted evidence, the
sentences imposed by the presiding judge were lenient.

i
i

l'd;,;,

I
t17f?
I

As the Supreme Court of the United States said in Cox
v. State of Louisiana, supra, "There is a proper time and place
for even the most peaceful protest and a plain duty and
responsibility on the part of all citizens to obey all valid laws
and regulations." The defendants wilfully ignored this
elementary principle of sound government under the Constitution of our country.
In Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222

(1972), the United States Supreme Court upheld convictions for violations of a noise
ordinance. Demonstrators marched around on a sidewalk about 100 feet from a school
building which was set back from the street. The ordinance provided that no person while
on public or private grounds adjacent to any building in which a school or any class
thereof is in session, shall willfully make or assist in the making of any noise or diversion
which disturbs or tends to disturb the peace or good order of such school session or class
thereof .... " The Court upheld the noise regulation both against an attack on vagueness,

Chief Bagnall
Page 10
July 23, 1997
as well as on First Amendment overbreadth grounds. As to the vagueness issue, the Court
stated that

I
I

[a]lthough the prohibited quantum of disturbance is not specified in the ordinance, it is apparent from the statute's announced purpose that the measure is whether normal school
activity has been or is about to be disrupted .... Although the
Rockford ordinance may not be as precise as the statute we
upheld in Cameron v. Johnson, 390 U.S. 611, 88 S.Ct. 1335,
20 L.Ed.2d 182 (1968) -- which prohibited picketing "in such
a manner as to obstruct or unreasonably interfere with free
ingress or egress to and from" any courthouse -- we think that,
as in Cameron, the ordinance here clearly "delineates its reach
in words of common understanding." ...
[Here] Rockford's antinoise ordinance does not permit
punishment for the expression of an unpopular point of view,
and it contains no broad invitation to subjective or discriminatory enforcement. ... [T]here must be demonstrated interference with school activities .... It is not impermissibly vague.
At to the First Amendment question, the Court put it this way:
[c]learly, government has no power to restrict such activity
because of its message. Our cases make equally clear,
however, that reasonable "time, place and manner" regulations
may be necessary to further significant governmental interests,
and are permitted. For example, two parades cannot march on
the same street simultaneously, and government may allow
only one. Cox v. New Hampshire, 312 U.S. 569, 576, 61 S.Ct.
762, 765, 85 L.Ed. 1049 (1941). A demonstration or parade
on a large street during rush hour might put an intolerable
burden on the essential flow of traffic, and for that reason
could be prohibited. Cox v. Louisian~ 379 U.S., at 554, 85
S.Ct., at 464. If overamplified loudspeakers assault the
citizenry, government may turn them down. Kovacs v.
Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513 (1949); Saia
v. New York, 334 U.S. 558, 562, 92 L.Ed. 1574, 1578, 68
S.Ct. 1148 (1948). Subject to such reasonable regulation,
however, peaceful demonstrations in public places are protect-

Chief Bagnall
Page 11
July 23, 1997
ed by the First Amendment. Of course, where demonstrations
tum violent, they lose their protected quality as expression
under the First Amendment.
408 U.S. at 112.
Specifically, as to the immediate property surrounding a school, the Court made the test
whether disruption of the school was occurring or threatened:

I
I

I

[j]ust as Tinker (v. Des Moines School District, 393 U.S. 503
(1969)] made clear that school property may not be declared
off limits for expressive activity by students, we think it clear
that the public sidewalk adjacent to school grounds may not
be declared off limits for expressive activity by members of
the public. But in each case, expressive activity may be
prohibited if it "materially disrupts classwork or involves
substantial disorder or invasion of the rights of others." ...
We would be ignoring reality if we did not recognize that the
public schools in a community are important institutions, and
are often the focus of significant grievances. Without
interfering with normal school activities, daytime picketing
and handbilling on public grounds near a school can effectively publicize those grievances to pedestrians, school visitors,
and deliverymen, as well as to teachers, administrators, and
students. Some picketing to that end will be quiet and peaceful, and will in no way disturb the normal functioning of the
school. For example, it would be highly unusual if the classic
expressive gesture of the solitary picket disrupts anything
related to the school, at least on a public sidewalk open to
pedestrians. On the other hand, schools could hardly tolerate
boisterous demonstrators who drown out classroom conversation, make studying impossible, block entrances, or incite
children to leave the schoolhouse.
408 U.S. at 115-116, 118-119.
Other cases are in accord with the above-referenced authorities. For example, in
Auburn Alliance For Peace and Justice v. Martin, 684 F.Supp. 1072 (M.D.Ala.1988),
affd., 853 F .2d 931, the Court upheld the action of university officials in forbidding a

Chief Bagnall
Page 12
July 23, 1997
week-long camp-out on university's public forum, in view of the fact that the university
offered to extend the forum hours and to allow use of an alternate forum when designated
forum was unavailable, and that the restriction was content-neutral in that it did not relate
to the purpose of the camp-out; and was reasonable as to time, place and manner in an
effort to avoid disruption of normal campus activities. The Court thus concluded:

I
I

[t]his is not a case where the University officials have denied
speakers or demonstrators an opportunity to speak or demonstrate. This is not a case where University officials have
denied a speaker or a demonstrator an opportunity to give
expression to his message by unreasonably determining that
the requested activity would interfere with the mission of the
University. One may argue that a week long, 24-hour-a-day
camp-out by numerous students and others in close proximity
to dormitories would not unreasonably interfere with students
studying or sleeping in the dormitories, but a contrary decision
by defendants was certainly a reasonable one and does not
manifest any desire to be unreasonably restrictive of speech or
demonstrations. "Therefore, so long as the administration
protects freedom of expression without substantial impairment,
it must be afforded the flexibility to issue ad hoc directions
specifying the time, place and manner in which particular
activities are to be held ... " Bayless v. Martine, 430 F.2d 873,
882 (5th Cir.1970), concurring opinion of Thornberry, J.
In Students Against Apartheid Coalition v. O'Neil, 838 F.2d 735 (4th Cir.1988),
the Fourth Circuit Court of Appeals upheld a school regulation prohibiting display of
symbolic shanties on the lawn of the Rotunda building at the University of Virginia. The
Court noted that the validity of the University regulation "depends on whether it is content
neutral, narrowly tailored to meet a significant government interest and leave open other
channels of communication." Id. at 736. And in Student Coalition for Peace v. Lower
Merion School District, 776 F.2d 431 (3d Cir.1985), the Third Circuit upheld the school
board's denial of access to school's athletic field for a peace exposition. The athletic field
had not been dedicated for use as a "public forum" in the view of the Third Circuit. Said
the Court,
[w]e do not think that the evidence in this case shows an
intent by appellees to create a public forum at Arnold Field.
The Board's policy requires each nonschool sponsored
organization, such as SCP, to obtain permission to use the

Chief Bagnall
Page 13
July 23, 1997

I
!
I
I

Field. ... We agree with the district court that SCP has not
met its burden of showing that such permission was in fact
granted as a matter of course. Thus, neither the written policy
nor the actual practice of the appellees manifests an intent to
designate Arnold Field as a public forum. Cf. Bender v.
Williamsport Area School Dist., 741 F.2d 538, 548-49 (3d
Cir.1984), cert. granted, 469 U.S. 1206, 105 S.Ct. 1167, 84
L.Ed.2d 319 (1985).
The nature of the property at issue in this case supports
our conclusion. It has long been recognized that "First
Amendment rights must be analyzed 'in light of the special
characteristics of the school environment."' Widmar v.
Vincent, 454 U.S. 263, 268 n. 5, 102 S.Ct. 269, 273, 70
L.Ed.2d 440 (1981), quoting Tinker v. Des Moines Indep.
School Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21
L.Ed.2d 731 (1969). The courts have never "suggested that
students, teachers, or anyone else has an absolute constitutional right to use all parts of a school building or its immediate
environs for his unlimited expressive purpose." Grayned v.
City of Rockford, 408 U.S. 104, 117-18, 92 S.Ct. 2294,
2303-04, 33 L.Ed.2d 222 (1972). While an athletic field
obviously differs from a school building, neither exists
primarily for expressive activity, especially where large
numbers of nonstudents are involved. This fact, while not
dispositive, bolsters our conclusion that Arnold Field has not
been designated as a public forum for community events. ...
Finally, we affirm the district court's determination that
appellees did not act from a desire to suppress expression with
which they disagreed. Viewpoint discrimination, of course, is
impermissible regardless of the nature of the forum. Cornelius
[v. NAACP Legal Defense Fund, 473 U.S. 788, 105 S.Ct.
3439, 87 L.Ed.2d 567 (1985)], 105 S.Ct. at 3454. The district
court found that SCP "did not produce any evidence that
defendant sought to censor its point of view." We agree.
Other than denying its request to use school facilities for the
Peace Fair, appellees have not interfered in any way with
SCP's other activities, including its activities on school
grounds. Indeed, appellees were apparently willing to permit

Chief Bagnall
Page 14
July 23, 1997

I
I

the Peace Fair to be held on school property, albeit in a
facility that SCP found unacceptable. Nor was any evidence
introduced that any individual Board members were personally
hostile to SCP's political goals. While under some circumstances a disparity between the government's proclaimed
justification for denying access to its property and its actual
practice might be evidence of viewpoint discrimination, see
Cornelius, 105 S.Ct. at 3454-55, we find no significant
disparity here.
776 F.2d at 436-437.
In summary, Section 16-17-420, the statute which you reference, may be applicable

to the type of situation which you describe. You will note that Section 16-17-420 does
not require that conduct which interferes with a school occur on campus property. If a
person willfully or unnecessarily interferes with or disturbs the teachers or students of a
school "in any place", such is a violation of the statute. In order for a statute such as this
to be applied without contravening the First Amendment, however, courts look to a
number of factors. These include:
(a) Whether the reason for the exclusion or the application of
a statute such as Section 16-17-420 or a rule of the school is
content-neutral; in other words, college or university officials
cannot punish First Amendment expression simply because
they disagree with or dislike what is being said. On the other
hand, a reasonable regulation of the time, place and manner of
the speech is generally constitutionally valid.
(b) Whether the speech is occurring on or in a traditional
"public forum" which has been provided to others for First
Amendment expression. Again, university officials cannot
pick and choose between the types of speech which they like
or dislike.
(c) Whether the speech interferes with or is likely to interfere
with other school activities or the operation of the school.
This is where Section 16-17-420 can be best applied, consistent with the First Amendment. Undue noise or activity which
is actually interfering with students and teachers is generally
not constitutionally protected. Courts are particularly sensitive

Chief Bagnall
Page 15
July 23, 1997
to conduct or activity which actually interferes with or
threatens interference with the operation of a school.
(d) Whether the school is reasonably regulating the time, place
and manner of the speech as opposed to the content thereof.
The regulation must be reasonable even where only time,
place and manner is involved. For example, even if there is
some noise involved in a protest, if it does not interfere with
school activities, a court might say this goes too far with
respect to free speech.

I

L
I
r
'

Again, each situation will necessarily be governed by its own unique facts. What
would be constitutionally valid in one factual setting will not necessarily be so in another.
In addition, I would also call your attention to the case of In The Interest of Joseph
B., 278 S.C. 502, 299 S.E.2d 331 (1983). There, our Supreme Court distinguished the
State v. Hanapole, 255 S.C. 258, 178 S.E.2d 247 (1970) which had held that Section 1611-530 which deems school districts "to be the owners and possessors of all school
property" must be considered with respect to trespass upon the lands of a school district.
Section 59-53-52 (3) empowers a TEC Board to "[a]cquire by gift, purchase or otherwise
all kinds and descriptions of real and personal property." Thus, it could be argued that
Section 16-11-620 may be also applicable here, particularly in light of Section 16-17420' s authorization to the President of a University or college to expel an individual from
the campus. Again, even if this trespass provision is applicable, its use must be with the
same caveats concerning the First Amendment outlined above.
This letter is an informal opinion only. It has been written by a designated
Assistant Deputy Attorney General and represents the position of the undersigned attorney
as to the specific questions asked. It has not, however, been personally scrutinized by the
Attorney General nor officially published in the manner of a formal opinion.
With kind regards, I am
Very truly yours,

(~

Robert D. Cook
Assistant Deputy Attorney General
RDC/ph