17 January 2000

Dear Dr. Johnson:

I write today to urge that you obtain a formal legal opinion from the Vice-President for Legal Affairs or the Georgia Attorney General on the chalk prohibition.  I believe that the policy is poorly drafted, that it is inconsistent with our policy on freedom of expression, and that it is ultimately unenforceable.  Furthermore, use of this policy to fine student organizations has the potential to bring embarrassment to the University, as chalking is commonly encouraged and accepted at top-tier institutions.  For these reasons, explained briefly below, it is necessary to further examine the policy and whether a state actor can enforce it.  

The chalk policy is poorly drafted.  As expressed to chief officers of student organizations last semester, the chalk policy not only prohibits the use of sidewalk chalk on campus, but on adjacent areas as well.  The chalk policy continues to be stated in over-broad terms (for instance, the sign in the Student Activities office) despite your assurance that it only applies to the Tate Center.  

The Department of Student Activities cannot prohibit expression on “adjacent areas” of campus, many of which are under the jurisdiction of the Athens-Clarke County Government.  In addition, the Department of Student Activities does not have wholesale control over other areas of campus besides the Tate Center.  As such, the Department of Student Activities will have difficultly enforcing this policy when students chalk other areas of the campus.

The chalk policy is also inconsistent with the University Policy on Freedom of Expression, which reads that: “No rights are more highly regarded at the University of Georgia than the first amendment (sic) guarantees of freedom of speech, freedom of expression, and the right to assemble peaceably.”  

We cannot simultaneously claim that we are committed to free expression and then prohibit a staple form of campus expression–sidewalk chalking.  

The chalk policy is not enforceable.  Since this is a public university, our policies must comply with the US and Georgia Constitution.  As such, a state entity is free to formulate “time, place, and manner” restrictions on speech.  However, the chalk policy cannot be justified under the “time, place, and manner” restriction nor can sidewalk chalking be called “defacement” of property.


Simply stating that the chalk policy constitutes a “time, place, and manner” restriction does not satisfy First Amendment scrutiny.  Content neutral restrictions on expression must be narrowly tailored to a significant state interest.  Furthermore, the restriction must leave open alternative channels of communication.  The chalk policy fails all three parts of this test: The Department of Student Activities does not have a significant interest in preventing the use of sidewalk chalk that can compete with a student’s right to expression.  The policy is not narrowly tailored to prohibit the use of sidewalk chalk on brick and walls only.  Last, an individual, who under DSA policy cannot post flyers, banners, etc., has no alternative channel for expression as effective as sidewalk chalk.  

Embarrassment to the University: The Department of Student Activities will likely embarrass the University in the higher education community if student organizations are fined for legitimate expression.  This policy, the intellectual dishonesty of its adherents, and the lack of sophistication in its drafting, is characteristic of high-school level, paternalistic policy-making.  We will be a joke in the academic community if we fine student organizations for expression.  In particular, if charitable organizations such as Dance Marathon are fined, the higher education community will chalk up this episode to southern intransigence and obtuseness.