The First Amendment Center has written several guides explaining the law surrounding free speech on public college campuses, which are excerpted here. For more information, refer to the First Amendment Center's website.
By David L. Hudson, Jr., Fellow for the First Amendment Center of the Freedom Forum Institute
Last updated: April 2017
Originally published on the First Amendment Center website
A controversial speaker is invited to a public university to deliver a speech. Many people exercise their free-speech rights to protest the selection of that speaker. However, some of those opposed to the speaker cross the line and engage in non-peaceful activities. Their disruptive behavior leads to the university canceling the event. This phenomenon, which is not fanciful or far-fetched, shows the power of the “heckler’s veto” – a term that arose out of so-called “hostile audience” cases.
“Heckler’s veto” refers to a situation involving a government official who allows a hostile audience’s reaction to shut down or silence an unpopular speaker. In other words, the speaker’s right to free speech is suppressed by the fear of disruption.
The U.S. Supreme Court sanctioned the heckler’s veto in the unfortunate case of Feiner v. New York (1951). Irving Feiner, a former World War II veteran and student at the University of Syracuse, fulminated against racism on a public street corner. He said that black people did not have equal rights and “should rise up in arms and fight for their rights.” A growing crowd surrounded Feiner and expressed hostility to the young speaker. Evidence in the record indicated that some in the crowd were “pushing, shoving and milling around.” Instead of protecting Feiner from the hostile crowd, the police arrested Feiner and charged him with incitement of a breach of the peace.
The U.S. Supreme Court upheld Feiner’s conviction by a 5-4 vote. The majority wrote that the police officers acted reasonably in trying to diffuse a potentially volatile situation. They wrote that Feiner engaged in “deliberate defiance” of police officers, who were worried about “the imminence of greater disorder.”
Justice Hugo Black filed a fiery dissent, contending that the police should have protected Feiner instead of placing him under arrest. He explained that “today’s holding means that as a practical matter, minority speakers can be silenced in any city.”
The late, great First Amendment scholar Harry Kalven, Jr. described the principle of heckler’s veto: “If the police can silence the speaker, the law in effect acknowledges a veto power in hecklers who can, by being hostile enough, get the law to silence any speaker of whom they do not approve.”
University officials should uphold the principle that even speakers with distasteful viewpoints should be heard and only in rare instances cave in to the heckler’s veto. Professor Brett Johnson explains in a 2016 article for the Communication Law and Policythat “[c]olleges and universities (private or public, but especially public) should publish clear policies that welcome controversial viewpoints, encourage lively debate regarding those viewpoints, and establish that attempts to silence those viewpoints will be punished.”
One of the most venerated principles in First Amendment law is Justice Louis Brandeis’ expression of what is known as the counter-speech doctrine. He wrote in his concurring opinion in Whitney v. California (1927):
“[I]f there be time to expose through discussion the falsehoods and fallacies, to avert the evil by the processes of education, the remedy to be applied, is more speech, not enforced silence. Only an emergency can justify repression.”
As I stated in testimony to the U.S. House Subcommittee on the Constitution and Civil Rights:
“When dealing with controversial speakers who will offend others, college and university officials should embrace and advance the counter-speech principle rather than resort to silencing and disinviting controversial speakers. Only in a true emergency should they resort to more drastic measures.”
by David L. Hudson Jr., Fellow for the First Amendment Center of the Freedom Forum Institute, and Lata Nott, Executive Director, First Amendment Center of the Freedom Forum Institute
Last updated: March 2017
Originally published on the First Amendment Center website
“It is an unfortunate fact of our constitutional system that the ideals of freedom and equality are often in conflict. The difficult and sometimes painful task of our political and legal institutions is to mediate the appropriate balance between these two competing values.” — Judge Avern Cohn, in Doe v. University of Michigan, 1989
During the 1980s and early ’90s many public colleges and universities sought to combat discrimination and harassment on campuses through the use of so-called speech codes. Proponents of the codes often argued the codes were necessary to prevent a rise in discriminatory harassment. Others said the push for the codes was merely part of a general movement of political correctness.
Whatever the reason, this time period witnessed an amazing rise in the number of speech codes on college campuses. More than 350 public colleges and universities regulated some forms of hate speech, Arati Korwar reported in 1995.
Many speech codes sought to end hate speech, which code proponents said should receive limited or no First Amendment protection. Supporting this view were many academics who subscribed to so-called “critical race” theory. Critical-race theorists contend that existing First Amendment jurisprudence must be changed because the marketplace of ideas does not adequately protect minorities. They charge that hate speech subjugates minority voices and prevents them from exercising their own First Amendment rights.
Those who argue for speech codes contend that hate speech is akin to fighting words, a category of expression that does not receive First Amendment protection. In its 1942 decision Chaplinsky v. New Hampshire, the Court wrote that fighting words are those that incite an immediate violent response. According to the Court, they “are no essential part of any exposition of ideas, and are of such slight social value as a step to the truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”
The speech codes that have been challenged in court have not fared well. Courts have struck these policies down as being either overbroad or vague. A statute is overbroad if it prohibits a substantial amount of protected speech in its attempts to restrict unprotected speech. A statute or regulation is vague if it does not adequately inform a person what expressive conduct is prohibited and what expressive conduct is allowed, leaving a person to guess at its application.
An example is a 1989 federal court decision, Doe v. University of Michigan, striking down that university’s speech code. Administrators had adopted the speech code in 1988 after a campus anti-discrimination group threatened to file a class-action suit against the university. The group was upset over several incidents, including the distribution of a flier on campus that declared “open season” on blacks and referred to blacks as “saucer lips, porch monkeys, and jigaboos.”
The policy prohibited:
“Any behavior, verbal or physical, that stigmatizes or victimizes an individual on the basis of race, ethnicity, religion, sex, sexual orientation, creed … and that …
“Creates an intimidating, hostile, or demeaning environment for educational pursuits, employment or participation in University[-]sponsored extra-curricular activities.”
The university published a guide explaining the speech code. The guide provided examples of harassing conduct, including:
Several complaints were filed against students under the policy. One was filed against a student for stating that Jewish people used the Holocaust to justify Israel’s policies toward the Palestinians. Another complaint was lodged against a student who said that “he had heard that minorities had a difficult time in the course and that he had heard they were not treated fairly.”
A psychology graduate student, identified only as John Doe, challenged the policy. He argued that discussion of certain controversial theories in his field of biopsychology, the study of individual differences in personality traits and mental abilities, might violate the policy.
The court agreed that the policy was overbroad. “The Supreme Court has consistently held that statutes punishing speech or conduct solely on the grounds that they are unseemly or offensive are unconstitutionally overbroad,” the court wrote.
Examining the complaints that had been filed under the policy, the court determined that “the University could not seriously argue that the policy was never interpreted to reach protected conduct.”
The court also determined that the policy was unconstitutionally vague because people would have to guess at the meaning of the policy’s language. The court reasoned that it was “simply impossible to discern any limitation” on the policy’s scope and reach.
The court concluded: “While the Court is sympathetic to the University’s obligation to ensure equal educational opportunities for all of its students, such efforts must not be at the expense of free speech.”
The next major legal challenge involving a speech code arose out of a plan called “Design for Diversity” at the University of Wisconsin. Several campus incidents triggered the adoption of a speech code targeting hate speech. The incidents included a fraternity erecting a picture of a black Fiji islander during a party. Another fraternity held a “slave auction,” featuring pledges in blackface mimicking African-American entertainers. The policy in part prohibited addressing any specific individuals with “racist or discriminatory comments” that:
“Demean the race, sex, religion, color, creed, disability, sexual orientation, national origin, ancestry or age of the individual or individuals; and
“Create an intimidating, hostile or demeaning environment for education, university-related work, or other university-authorized activity.”
The policy did not prohibit speech expressing derogatory opinions about a specific racial group in a classroom discussion because the speech was not directed at a specific individual.
A student newspaper and several students challenged the policy on First Amendment grounds. In the 1991 case UWM Post v. Board of Regents of University of Wisconsin, a federal district court agreed and struck down the policy.
The university argued that the policy was a constitutional way to prohibit fighting words, or words defined by the Supreme Court as inciting an immediate breach of the peace, as described in Chaplinsky v. New Hampshire. But the federal court in UWM Post thought otherwise, writing: “Since the elements of the UW Rule do not require that the regulated speech, by its very utterance, tend to incite violent reaction, the rule goes beyond the present scope of the fighting words doctrine.”
The university also contended that the policy was consistent with the major anti-discrimination employment law, Title VII of the Civil Rights Act of 1964. The university contended that because Title VII regulated hostile workplace environments, the university could regulate hostile academic environments.
No, said the court, for several reasons, including: (1) differences between the employment and educational settings; (2) the fact that employers can generally be liable for the conduct of their employees, but universities often cannot be held liable for the conduct of students; and (3) Title VII is a statute that does not supersede the First Amendment.
The court also rejected the speech-code defenders’ rationale that the code was necessary to stop discriminatory harassment. The UWM Post federal court wrote:
“This commitment to free expression must be unwavering, because there exist many situations where, in the short run, it appears advantageous to limit speech to solve pressing social problems, such as discriminatory harassment. If a balancing approach is applied, these pressing and tangible short run concerns are likely to outweigh the more amorphous and long run benefits of free speech. However, the suppression of speech, even where the speech’s content appears to have little value and great costs, amounts to governmental thought control.”
Though no challenges to university speech codes have reached the U.S. Supreme Court, the Court did decide R.A.V. v. City of St. Paul, a 1992 cross-burning case with heavy implications for speech codes.
In R.A.V., a juvenile burned a cross on the lawn of a neighboring African-American family in St. Paul, Minn. The youth was charged with violating a hate-crime ordinance, which provided:
“Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.”
The Minnesota Supreme Court upheld the statute, construing it to apply only to fighting words. But the U.S. Supreme Court reversed the Minnesota ruling unanimously, although the justices differed sharply in their reasoning.
Justice Antonin Scalia, writing the R.A.V. Court’s main opinion, reasoned that the ordinance violated the First Amendment because it selectively proscribed a certain subset of fighting words. To Scalia, such a ban would be like the government prohibiting only libel that was critical of the government. “The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects,” he wrote. “In its practical operation, moreover, the ordinance goes even beyond mere content discrimination, to actual viewpoint discrimination.”
Legal commentator S. Douglas Murray writes that “while speech codes faced an uphill battle under the constitutional precedent in place before R.A.V., this decision made it virtually impossible for a speech code to pass constitutional muster.”
The R.A.V. v. City of St. Paul decision, coupled with the Michigan and Wisconsin decisions, created a formidable legal hurdle for universities to clear. Central Michigan University and Stanford University could not clear that hurdle.
In 1995, the 6th U.S. Circuit Court of Appeals struck down the University of Central Michigan’s speech code in Dambrot v. Central Michigan University. That same year, in Corry v. Stanford, a California state court ruled that Stanford University’s speech code violated the First Amendment. Some First Amendment advocates cheered these court decisions as the demise of campus speech codes.
Some universities dropped their broad, wide-ranging policies, such as those found at the Universities of Michigan and Wisconsin, in favor of more narrowly crafted anti-harassment or code-of-conduct policies. Whatever the terminology used, many universities still regulate various forms of hate speech.
George Mason law professor Jon Gould writes that “hate speech policies not only persist, but they have actually increased in number following a series of court decisions that ostensibly found many to be unconstitutional.”
“Many of the provisions that used to be called speech codes are being wrapped into anti-harassment policies,” says First Amendment expert and law professor Robert Richards of the University of Pennsylvania.
Although these policies tend to punish harassing speech and conduct, as opposed to offensive speech, many of them still present First Amendment problems. For example, in 2003 a federal district court in Pennsylvania decided in Bair v. Shippensburg University that a policy requiring students to communicate “in a manner that does not provoke, harass, intimidate or harm another” violated the First Amendment, concluding that regulations that “prohibit speech on the basis of listener reaction alone” are unconstitutional. A few years later in College Republicans at San Francisco State University v. Reed, a federal district court in California found that a college could not enforce a policy requiring that students “be civil to one another”, or a policy prohibiting harassment, unless the harassment in question threatened the health or safety of another person.
The 3rd U.S. Circuit Court of Appeals has weighed in on this issue twice–once in 2008, and again in 2010. In the first case, DeJohn v. Temple University, it struck down a policy that defined sexual harassment as conduct of a “gender-motivated nature” which creates an “intimidating, hostile, or offensive environment.” This was partially due to the broad and subjective nature of terms such as “hostile,” “offensive,” and “gender-motivated.” Furthermore, the court found that the policy could prohibit core protected political and religious speech, because its definition of harassment could easily encompass discussions about gender politics and sexual morality.
In the second case, McCauley v. University of the Virgin Islands, the Third Circuit struck down a policy prohibiting conduct causing emotional distress, finding the policy to be unconstitutionally overbroad and entirely subjective. The court took note of the chilling effect this policy would have on speech: “Every time a student speaks, she risks causing another student emotional distress.”
By Dave Roland, Contributing Writer, and Lata Nott, Executive Director, First Amendment Center of the Freedom Forum Institute
Last updated: March 2017
Originally published on the First Amendment Center website
To provide more avenues for students’ personal development, public colleges often require them to pay an “activities fee” to offset the expenses of intramural sports programs, recreation centers, student government, student publications and student clubs. The universities justify these fees as a contribution to each school’s mission of providing a broad educational experience and, in the case of student clubs, a free exchange of ideas among students.
Controversy ensues when the funds raised through these fees are distributed to organizations with potentially objectionable purposes. Students opposed to those purposes may assert a First Amendment interest in not being forced to support ideas with which they disagree.
In Widmar v. Vincent (1981), the Supreme Court determined that public universities could not refuse official recognition of student groups where the perspectives or philosophies that they sought to advance were otherwise protected expression under the First Amendment and the public-forum doctrine. The case involved a group of Christian students at the University of Missouri at Kansas City who were applying for official status under normal university guidelines. The students’ application was rejected because the school believed such recognition would run afoul of the establishment clause of the First Amendment, prohibiting government sponsorship of religion.
The Court, however, adopted the rationale that the independent organization of students into clubs could not be construed as the action of the university or a representation of its official views, and therefore a Christian group could be treated no differently than any other student association. To discriminate in such a manner would be to abandon the viewpoint-neutrality demanded of administrators.
The Widmar Court was not unanimous in its reasoning. The dissenters said that student groups, if recognized as envisioned in the majority opinion, could reasonably receive university funding, either directly or indirectly, and that where those funds supported the clubs’ missions, it would amount to an endorsement. The Supreme Court has recently addressed these concerns with a pair of bookend cases: Rosenberger v. University of Virginia (1995) and Board of Regents of the University of Wisconsin v. Southworth (2000).
In Rosenberger, leaning on the distinction between students’ private ideas and official university policy, the Court found that even the funding of an explicitly Christian organization and the dissemination of its sectarian views by way of a newspaper was not only allowable, but required where the same provision was made for similar student groups. Again, the Court was divided. The dissenting justices, in addition to their position that the establishment clause had been violated, invoked Thomas Jefferson’s Virginia Bill for Establishing Religious Freedom, which says that “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical.”
The Court had previously issued two influential opinions (Abood v. Detroit Board of Education in 1977 and Keller v. State Bar of California, 1990) that brought this idea into First Amendment jurisprudence. Members of certain public organizations, those rulings held, could not be compelled to contribute monetarily to the advancement of ideas to which they were opposed. The Rosenberger decision avoided that debate entirely, however, as the justices chose not to hold anything other than that the university had the right to decide whether the challenged allocation was tailored to further its educational interests.
The issue arose again in Southworth. Ironically, it was a group of Christian students that brought suit, objecting to their student fees’ being distributed to groups that sought to advance ideas contrary to their own. Citing the authority of Abood and Keller, the lower courts found that the students could not be compelled to support those groups with mandatory fees. The Supreme Court disagreed.
The Southworth Court determined that the cases relied upon by the lower courts did not apply. The difference was that the university itself was not advocating or advancing any particular belief, but rather using the funds to establish a viewpoint-neutral forum for students to voice their own opinions and consider those of others. Furthermore, they found that to allow the student body a majority vote through which funds to disfavored groups could be withheld would be to deprive the forum of its necessary viewpoint-neutrality.
However, in Christian Legal Society Chapter v. Martinez, which the Court decided in 2010, the Court found that a university could withhold recognition and funds from a student organization that did not comply with a state law requiring the organization be open to all students (the organization in question would not admit gay students). The Court stated that the state anti-bias law was reasonable and viewpoint neutral, and therefore did not infringe upon the First Amendment rights of the Christian Legal Society.
As the law stands today, when a public college or university chooses to create a “marketplace of ideas” by collecting and redistributing student fees, it is forbidden to allocate those fees in any way that would discriminate according to the perspective of a potential recipient. The school may choose to structure its program so that students will be refunded part of their fee if they do not want it to be used by student organizations, but failure to provide such an option will not violate the First Amendment rights of the students.
By Dave Roland, Contributing Writer, and Andrew Gargano, First Amendment Center Intern
Last updated: October 3, 2017
Originally published on the First Amendment Center website
Colleges and universities, as the training ground of new generations of thinkers, are a common source of controversy concerning what should be taught. Administrators at some public institutions of higher learning, in an effort to promote the values of diversity and equality, have in some cases tried to persuade professors to refrain from voicing certain viewpoints — even from pursuing certain fields of study — that could be seen as working against those ideals.
“Academic freedom,” as the phrase is most commonly used, describes the right of teachers to conduct their classrooms and studies in the way that they believe to be most consistent with a pursuit of truth. Though this concept is not explicitly addressed in the First Amendment, it has been adopted by the U.S. Supreme Court as a freedom protected alongside the other First Amendment values. In a 1967 case, Keyishian v. Board of Regents of the University of the State of New York, the Court declared that academic freedom was a “transcendent value” entitled to the protection of the First Amendment.
However, the very next year a Supreme Court decision left open the question of free speech for faculty at public universities and colleges, challenging the Court’s previous declaration of the value of academic freedom. In Pickering v. Board of Education, the Court ruled that the state “has interests as an employer in regulating the speech of its employees” and adopted a two-part test to determine when the government may impose restrictions on employee speech. First, a court would consider whether an employee’s speech pertains to a matter of public concern. If so, the court would determine whether that speech outweighs a government interest in operating its workplace efficiently. The Court later modified the first step of the Pickering test in the 1983 case Connick v. Myers by adding to the inquiry whether the employee spoke “as a citizen” rather than as an employee.
While few cases arose concerning the extent of academic free speech, the courts for over 20 years relied on the Pickering-Connicktest to determine when the government may regulate employee speech. That changed in 2006.
In Garcetti v. Ceballos, the Supreme Court ruled that when public employees speak “pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes.” However, the Court held off answering whether the new rule would apply to academic speech. Justice Souter, in a dissent, voiced his concern with the ruling and expressed his hope that the majority “does not mean to imperil First Amendment protection of academic freedom in public colleges and universities.”
In the years since, appellate courts have differed in their approaches to applying Garcetti. The Seventh Circuit in Renken v. Gregoryapplied Garcetti in an academic setting, finding that a professor’s complaint concerning how the university administered an educational grant fell within his teaching and service duties. On the other hand, both the Fourth and Ninth Circuits have held that, in certain circumstances, Garcetti does not apply to public university professors.
In 2011, the Fourth Circuit in Adams v. University of North Carolina-Wilmington held that a professor’s opinionated columns and news articles were protected by the First Amendment since they were published outside the university. The court found “applying Garcetti to the academic work of a public university faculty member under the facts of this case could place beyond the reach of First Amendment protection many forms of public speech or service a professor engaged in during his employment.” In the 2014 case Demers v. Austin, the Ninth Circuit similarly held that “there is an exception to Garcetti for teaching and academic writing” because “Garcetti would directly conflict with the important First Amendment values previously articulated by the Supreme Court.”
While the Supreme Court has yet to clarify the proper reach of Garcetti in academic settings, it clarified part of the Garcetti test in the 2014 case Lane v. Franks. There the Court held that the critical part of the Garcetti inquiry is whether the speech “is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties.” Thus, a public employee’s speech may have greater protection than previously interpreted.
Despite the Supreme Court’s support for academic freedom, administrators at some public colleges and universities continue to try to stop faculty from researching certain areas, publishing their findings, or making unpopular statements. Recent years have seen attempts to prevent studies of racial difference and employment policy at the University of Delaware and the history of homosexual communities in the Pacific Northwest at Idaho State University, and to punish a creative writing professor in Alaska for her exploration of child sexual abuse. Cases arising out of school-initiated censorship are almost invariably settled or decided against the school.
In some cases, state legislatures have tried to silence professors even when colleges have not. Arizona lawmakers recently attempted to prevent public education institutions from promoting “social justice” while two Wisconsin state legislators threatenedto withhold public university funding if a course on racism was permitted. Such actions are almost invariably resolved in favor of the professors. As the Supreme Court held in its 1957 decision Sweezy v. New Hampshire that “for society’s good … [p]olitical power must abstain from intrusion” into “the intellectual life of the university.” Besides, it’s not always all bad news in the statehouses. In 2017, Tennessee passed into law a comprehensive campus free speech bill to provide faculty with statutory protection for classroom speech.
Generally, professors may research or speak on any question that is of “public concern” without fear of official reprisal. This principle is not without uncertainty, however. Academic freedom will not cover personal attacks, criticisms or comments that excessively hamper the mission of the university, or expression that does not specifically address a public concern.
Finally, it is important to remember that private universities are governed by a different set of rules than their publicly funded counterparts. Because private schools are not under the control of the government, they are not legally required to assure the same liberties to their administrators, faculty or students. The discussion in this section is applicable only to state-run institutions.
By David L. Hudson Jr., Fellow of the First Amendment Center at the Freedom Forum Institute and Andrew Gargano, First Amendment Center Intern
Last updated: November 8, 2017
Originally published on the First Amendment Center website
Public universities were a hotbed of social activism in the late 1960s and early 1970s, with much student energy focused on opposing the Vietnam War. In the 1980s, college students did not continue this high level of activism perhaps because of lack of a common cause around which to rally.
But First Amendment expert Robert Richards, a professor and administrator at Penn State University, says issues regarding race and sex have emboldened students to become more vocal in their expression. In the 1980s and 1990s, many universities enacted speech codes designed to instill greater civility on public campuses and prevent harassment based on race and sex. “The issues related to sexuality and race that lead to the implementation of speech codes, which did not fare well in the courts, have not gone away,” Richards said. “In addition, there has been an increased level of student activism — though not approaching the level seen in the 1960s.”
Perhaps because the speech-code movement was stifled in the courts, some universities have resorted to limiting student protests and demonstrations to certain select areas of the campus — called free-speech zones. Whatever the reason, the last several years have seen a rise in such speech zones. Some college administrators believe free-speech zones are a way to prevent student activism from disturbing the primary function of a university — the teaching of students in classrooms.
The issue of universities trying to “move” speech away from certain areas of the campus is not entirely new. Robert O’Neil, a well-known First Amendment expert and former university president, recalls his days as chairman of the Campus Rules Committee at the University of California-Berkeley campus from 1966-67.
O’Neil said that many members of the committee wanted to relocate student rallies from the upper plaza to the lower plaza to prevent disruption of the educational environment. “We were concerned that the protests on the upper plaza were causing congestion and interfering with other student activities and classroom instruction,” he said.
O’Neil recalls that the rules committee, made up of faculty and students, voted 6-5 to move the rallies to the lower plaza. He says that the recent controversy over “free-speech zones” presents the same sort of issues that he dealt with at Berkeley. But he fears that many of the new policies, which limit protest activity to a few spaces or zones on campus, restrict too much speech.
A large number of colleges and universities have now adopted these policies. The Foundation for Individual Rights in Education (FIRE), a Philadelphia-based civil liberties group, in 2012 found that roughly one in six of America’s top colleges and universities had free-speech zones. However, a 2017 report by the organization found that statistic had dropped to one in 10.
Officials describe free-speech zone policies as content-neutral time, place and manner restrictions on speech that don’t ban student expression. In First Amendment jurisprudence, regulations that restrict speech based on content are presumptively unconstitutional and are subject to a high degree of judicial scrutiny. Content-neutral laws, on the other hand, are held to a less stringent form of judicial review. University officials argue the policies are constitutionally acceptable because they merely regulate where the speech takes place as opposed to whether the speech can take place at all.
Controversies surrounding free-speech zones have erupted at a number of public universities including New Mexico State University, West Virginia University, the University of Mississippi and Florida State University to name a few. FIRE, along with other free speech groups, is advocating strongly against free-speech-zone policies. Thor Halvorssen, the group’s former executive director, told a newspaper: “There are dozens of college campuses across the U.S. with free speech zones. We plan to take each one down, one by one. By creating zones, the administration is saying that free speech does not exist in the areas of campus outside the zones.”1 The group’s president, Alan Charles Kors, has called free-speech zones “absurdly named” because they limit freedom of speech.2
Other First Amendment experts also question the constitutionality of some of the free-speech zone policies. “In a public institution, there is a presumption in favor of the speaker,” says O’Neil, who is the founder of the Virginia-based Thomas Jefferson Center for the Protection of Free Expression.
First Amendment expert Kevin O’Shea writes: “There is a serious question regarding whether the renewed use of free speech zones is compatible with the First Amendment.”3 “A university is supposed to be a marketplace of ideas,” says Richards of Penn State. “When you limit the free interchange of ideas, that is problematic.”
The expansion of free-speech zones on public college and university campuses over the past two decades has prompted a number of lawsuits.
Officials at New Mexico State University adopted a new free-speech policy in the 1980s. This policy said members of the university community were free to speak on any topic as long as they did so in three designated areas. In September 2000, student activist Sean Rudolph was arrested for distributing leaflets criticizing the university’s policy on freedom of speech and promoting his soon-to-be released underground newspaper.
The New Mexico chapter of the American Civil Liberties Union intervened and filed a lawsuit on behalf of Rudolph and another student, Marlene Yesquen. In Rudolph v. Archuleta, the plaintiffs alleged: “NMSU has designated three extremely small areas of its campus as ‘open forum’ or ‘free speech’ areas. Two of these areas have virtually no pedestrian traffic, and thus are unusable as areas in which to distribute literature to other students.”
“To us, this presented a clear-cut First Amendment issue because you had students exercising their legitimate right to distribute literature on campus,” said Peter Simonson, executor director of the ACLU of New Mexico. “This was a clear instance of students’ rights to free speech being shut down in an extremely aggressive manner.”
The university agreed to revise its policy under a settlement in November 2000 (no court opinion). Under the terms of the settlement, the university agreed to appoint a task force to develop a new policy; pay the plaintiffs’ attorneys fees and court costs; establish a $2,500 student scholarship to be awarded by the university’s government department; and not take any administrative action against Rudolph, Yesquen or any other NMSU student for actions related to the lawsuit.
The university adopted a new policy in March 2001 that provides in part: “Any outdoor area that is generally accessible to the public may be used by any individual or group for petitioning, distributing written material, handing out newspapers, or conducting speech acts. Prior approval is not necessary as long as the primary action is not to advertise or sell a commercial product.”
A group of student organizations, known collectively as the Free Speech Coalition of West Virginia University, sued the university in June 2002 over the school’s free-speech zone policy. In Free Speech Coalition of West Virginia University v. Hardesty, the student groups alleged that the policy, which allowed for two campus free-speech zones, violated the students’ First Amendment rights.
In February 2002, students and a few faculty members began protesting the policy. In response, the university expanded its number of free-speech zones from two to seven. But that was not enough to satisfy the student groups.
In their complaint, they stated that even though there are seven free-speech zones, these areas “do not constitute more than five percent (5%) of the total campus area.” Furthermore, they alleged that the policy prohibits student demonstrations in the places most likely to have the greatest impact or the places that would be most appropriate. They explain in their complaint:
“Many core functions of the University and buildings and sites fully appropriate for public expression are not within the ‘Free Expression Areas,’ including the University’s administration building, large portions of the grounds around the Mountainlair, the Business and Economics Department building, the University’s newspaper the Daily Athenaeum, and many others. … Neither Plaintiffs nor others may protest or demonstrate against University restrictions on the rights of free expression and the press at the offices of the school newspaper. Neither Plaintiffs nor others, including African-American members of the University community, may protest or demonstrate against racism or in support of or against affirmative action at the Center for Black Culture and Research.”
In December 2002, the university relented and abandoned its free-speech zone policy.
A Texas Tech University Law School student, who wanted to deliver a speech and pass out literature expressing his religious views on homosexuality, sued his school in 2004 because student speech was limited to one “free speech gazebo” unless students first obtained permission from the university. When the lawsuit was filed, the university responded by creating additional free-speech zones; however, it did not remove the requirement to obtain permission.
The federal district court in Roberts v. Haragan struck down the university’s regulation that required students to obtain permission for expressive activities outside of the free-speech zones. The court found that the prior permission requirement was not narrowly tailored and swept too broadly by burdening expression that implicated “no significant university interest” in public forums on campus.
A student group at the University of Cincinnati sued their university in 2012 over its campus policy on free-speech zones.
Members of the student group Young Americans for Liberty were prohibited from circulating around campus to gather signatures for a ballot initiative. The students were informed that if any signature gathering were to occur outside the free-speech zone, they would be subject to arrest. As a result, they remained in the designated area and interacted with only six students due to low pedestrian traffic.
In University of Cincinnati Chapter of Young Americans for Liberty v. Williams, a federal district court found the university’s free speech area, which comprised less than 0.1 percent of the campus, to be in violation of the First Amendment. The court reasoned that the regulation of campus open areas is subject to strict scrutiny, which requires a compelling government interest and a regulation narrowly tailored to achieve that interest. The court found that “mere speculation that speech would disrupt campus activities is insufficient.”
These recent lawsuits are simply just some of the more high-profile free-speech zone controversies. The issue continues to rage at university campuses across the country.
For example, in November 2016, a student at a public community college in Los Angeles was informed by administration that he could not distribute Constitutions outside of the campus’s free speech zone, and that he needed a permit to do so. In March 2017, the student challenged the college’s free speech zone and permission requirement in a lawsuit, which is now pending before the United States District Court for the Central District of California.
Many civil libertarians rail against the policies, calling them both moronic and oxymoronic. Indeed, they’ve even found agreement with a number of state legislatures, which have acted to prohibit public colleges and universities from implementing free-speech zone policies. For example, in 2015 the Missouri legislature passed, and the governor signed into law, the Campus Free Expression Act to prohibit free-speech zones. Similar bills have passed in Arizona, North Carolina, and Virginia.
Legally, free-speech zones implicate a principle of First Amendment law known as the public-forum doctrine. Under the public-forum doctrine, government officials have less authority to restrict speech in places that by tradition have been open for free expression. Such an area is called a public forum. In its 1983 decision Perry Education Ass’n v. Perry Local Educators Ass’n, the U.S. Supreme Court wrote: “In places which by long tradition or by government fiat have been devoted to assembly and debate, the rights of the state to limit expressive activity are sharply circumscribed.”
“Where you have places that have been traditionally used for speech, the public forum doctrine comes into play,” Richards explains. Unfortunately, as O’Shea writes, “The public forum doctrine is so ill-defined, however, that its application is often confusing.” He adds that “there is no consistent doctrine for either students or school officials to follow when trying to determine whether restrictions on campus speech are consistent with the First Amendment.”
Richards says it may be possible to draft a constitutional free-speech zone policy. “I think if university officials could show that they were allowing speech and even encouraging speech in particular locations, they might have a sympathetic ear in some courts,” he said.
The courts have upheld the zoning of speech in other areas of First Amendment law, including buffer zones outside abortion clinics (in Hill v. Colorado) and zones between patrons and performers at nude-dancing establishments (in Colacurcio v. City of Kent).
Technically, a free-speech zone is content-neutral in the sense that it applies to all types of student speech without regard to the message. But, as O’Neil says, “the policies, while seeming to be content-neutral, can create a content effect. While seemingly content-neutral, when you look deeper some of the policies they seem to mask content discrimination.” He points out that some of the policies, while purporting to further the principle of free speech, severely limit the areas in which free speech can occur.
Until more courts issue decisions on the merits regarding such a policy, the debate will likely continue between student activists and university officials. As Kevin O’Shea wrote back in 2003, “[n]either side in this debate intends to go quietly into the night.” Indeed, his statement still rings true today.
1 Mary M. Kershaw, “WVU students are at greater liberty to protest,” USA TODAY, 5/13/2002, p. 6D
2 Ellen Sorokin, “Civil libertarians take on campus ‘free-speech zones’,” The Washington Times, March 26, 2002, p. A01
3 Kevin O’Shea, “Muzzling Campus Speech,” in First Amendment Rights in Education (May 2002), p. 3
By Dave Roland, Contributing Writer
Last updated: March 2017
Originally published on the First Amendment Center website
Schools at all levels often allow distribution of student-run newspapers, literary magazines and yearbooks on their campus as part of the intellectual and social development of their students. Where students edit and produce the publications, they may run afoul of campus administrators if they publish controversial material.
Some administrators have exercised prior restraint against publications to block inflammatory items from appearing; others have punished student editorial staffers after the offending material has been published. Either way, the question arises: How much freedom do public college campus publications have?
The legal question hinges upon what sort of forum the school created in sponsoring its publications. Because no U.S. Supreme Court cases directly address the question of administrative control over student-run publications at public colleges, legal scholars trying to sort out this issue look first at the situation in high schools.
High schools generally have been considered non-public forums. A non-public forum allows for some individual expression, but the state reserves the right to monitor closely what is expressed, and to suppress it if it is deemed destructive of the narrow purpose of the forum.
Though stating unequivocally that students are not required to “check their First Amendment rights at the schoolhouse door,” the Supreme Court has determined that students’ freedom of speech and press must be balanced against the interests of the schools in maintaining institutional order and a good learning environment. In Hazelwood School District v. Kuhlmeier (1988), the Court found that high school administrators do not violate the First Amendment when they censor or punish students for the content of their school-sponsored expression, so long as the school’s reason for censoring the student expression is related to a legitimate educational interest. In a footnote, the Supreme Court noted that it was not deciding whether its ruling applied to student expression at public colleges and universities.
In light of this refusal, federal appeals courts have tended to find that the Kuhlmeier and Fraser rulings are generally inapplicable to college campuses.
An example of this sort of reasoning is the 6th U.S. Circuit Court of Appeals decision in Kincaid v. Gibson, a 2001 case in which a university refused to distribute the published copies of its student-produced yearbook. The administration, displeased with the editor’s choice of design and format, confiscated the yearbooks and kept them in a secret location rather than deliver them to students. The administrators relied upon Hazelwood in claiming that the yearbook was a non-public forum, and that therefore its publication and distribution was not protected by the First Amendment. The U.S. District Court, persuaded by this argument, held that Hazelwood applied to public institutions of higher education. But the full 6th Circuit, hearing the case for the purpose of deciding if Hazelwood applied to the facts of Kincaid, cited the 1st Circuit’s 1989 decision in Student Government Ass’n v. Board of Trustees of the University of Massachusetts in determining that the lower court was mistaken — that college journalists were not subject to the same limitations as high school journalists.
Several courts have ruled that although a public college may require pre-publication submission to an adviser for comments on form and style, what goes into the paper must remain at the sole discretion of the student editors, free from external censorship. It is presumed that although these student-run publications are not traditional public forums open to all, they are created to give students the opportunity to find their own voices through reporting and discussion of issues important to their campus and local community.
Universities are not required to support student papers, literary magazines or yearbooks, nor are they absolutely required to continue support of them once they have been created, but (as is the case with visiting campus speakers) where such publications have created a forum for groups or individuals, public colleges may not prevent funding or distribution because they dislike the messages transmitted in that forum.
However, the legal landscape became murkier in June 2005 when the full 7th Circuit ruled in Hosty v. Carter that “Hazelwood’s framework applies to subsidized student newspapers as well as elementary and secondary schools.” The en banc decision overruled an April 2003 ruling by a three-judge panel of the 7th Circuit, which had found that Hazelwood had no application to the college press.
The student journalists in Hosty petitioned for Supreme Court review, but the Court declined to hear their appeal on Feb. 21, 2006. The Supreme Court’s inaction means that the Hosty decision stands. However, no other Circuit has adopted a similar approach to college newspapers. A thesis analyzing the effects of Hosty on the collegiate press found that the decision did little to change how student journalists select and approach stories.
In a 2000 case only indirectly affecting public college press freedom, Board of Regents of the University of Wisconsin v. Southworth, the Supreme Court held that a university was not required to refund student-activity fees to the extent that they were used to fund a newspaper whose editorial opinions grossly offended some students. This finding suggested that the university’s interest in affirming the freedoms of speech and press for its students outweighed the interests of students who might be offended by the exercise of those rights.
by Lata Nott, Executive Director, First Amendment Center of the Freedom Forum Institute
March 14, 2017
Originally published on the First Amendment Center website
Most college students today have grown up surrounded by social media. An enormous amount of their “speech” takes place on digital platforms such as Facebook, Twitter, and Instagram Naturally, the prevalence of social media on college campuses presents the following question: at a public university or college, do officials and administrators have the right to discipline, punish, or expel students based on the content of their social media posts?
This is still a relatively new area of the law. There haven’t been many cases where courts have weighed in on the issue, and the scant amount of case law that exists is contradictory.
In Yeasin v. University of Kansas, a 2015 case, the University of Kansas expelled student Navid Yeasin for tweeting derogatory and offensive statements about his ex-girlfriend. The university based its expulsion on its Student Conduct Code, which states that students can be punished for policy violations that occur “while on university premises or at university sponsored or supervised events.” When the case reached the Kansas Court of Appeals, the appellate court found that Yeasin should not have been expelled because there was no evidence that his offensive, policy-violating conduct occurred on the university premises. However, as the Student Press Law Center has noted, “While the ruling vindicated Yeasin’s right to be free from punishment for his off-campus speech, it was based more on an interpretation of the college’s own rules than the First Amendment, so the case’s value as precedent for future constitutional challenges is uncertain.”
Things turned out less well for the student-plaintiff in Keefe v. Adams. In that case, officials at Central Lakes College removed Keefe from the school’s nursing program, citing the lack of professionalism revealed in his Facebook posts. Keefe’s posts included the following:
“Doesn’t anyone know or have heard of mechanical pencils. I’m going to take this electric pencil sharpener in this class and give someone a hemopneumothorax with it before to [sic] long. I might need some anger management.”
In another post, Keefe called a classmate a “stupid bitch.” After two classmates complained to an instructor, administrators got involved and removed Keefe from the Associate Degree Program. Keefe sued, contending that the officials violated his First Amendment rights for disciplining him for off-campus, online speech that did not fall into any unprotected speech category, such as obscenity. Keefe lost on the federal district court level, appealed, and then lost again when his case was heard by the 8th U.S. Circuit Court of Appeals.
The 8th Circuit panel noted that “[m]any courts have upheld enforcement of academic requirements of professionalism and fitness, particularly for a program training licensed medical professionals.” The appeals court also noted that the professionalism standards were viewpoint neutral.
One aspect of the court’s ruling is potentially troubling from a free speech perspective. The 8th Circuit relied in part on the U.S. Supreme Court’s decision in Hazelwood Sch. Dist. v. Kuhlmeier (1988), a case involving the censorship of a high school newspaper. In Hazelwood, the Supreme Court reasoned that school officials could censor school-sponsored student speech if they had a legitimate educational reason for doing so.
The 8th Circuit’s application of this rule to Keefe is is concerning for two reasons. First, Hazelwood applied to high-school students, not college students.The Supreme Court has made it clear that although high school students have some free-expression rights, their rights are more limited than those of adults. In Hazelwood, the court found that the rights of high school students, “are not automatically coextensive with the rights of adults in other settings, and must be applied in light of the special characteristics of the school environment.” One might logically assume that this standard does not apply to college students, for one simple reason: college students are adults. Nevertheless, the 8th Circuit also wrote that “a college or university may have an even stronger interest in the content of its curriculum and imposing academic discipline than did the high school at issue in Hazelwood.”
One would presume that college and university students have greater free-speech protections than high school students. In his law review article discussing the attempts of colleges to control the social media speech of student athletes, Frank LoMonte observes that, “By contrast with its measured apportionment of First Amendment liberties at the K-12 level, the Court has spoken expansively of the importance of the free exchange even of challenging and unpopular ideas in the ‘marketplace’ of a college campus. In Hazelwood, the Court broadly hinted that the interests of the speaker and the institution might balance out differently at the college level.” The reasoning of Keefe v. Adams appears to ignore this altogether.
Another troubling aspect of the 8th Circuit’s ruling is that Hazelwood involved school-sponsored student speech; the principal wanted to censor certain articles from being published in the official school newspaper. This is an odd case to apply to a situation involving a college student’s Facebook posts. Keep in mind that the law regarding for online speech for high school students is, itself, a bit of a mess. The Supreme Court established in Morse v. Frederick that high school teachers could discipline student-speech at school sponsored events. It established in Hazelwood that this also applies to school-sponsored speech, like the contents of a school newspaper or yearbook. But the Supreme Court has never issued a decision about whether a school can punish a high school student’s off-campus, unsponsored speech. The Circuit Courts are currently split on this issue.
It therefore seems strange that the 8th Circuit would rely on Hazelwood to establish the college’s ability to discipline Keefe for his speech. Keefe’s Facebook posts’ were not school-sponsored. He wasn’t posting on a school blog, or a group facebook page, but his own personal Facebook page.
In her dissent, Judge Jane Kelly disagreed with the approach the other judge’s adopted in Keefe, noting that Keefe’s posts “cannot be reasonably attributed to the school,” and therefore the Hazelwood “reasonably related to pedagogical concerns” test should not have been applied. Furthermore, she pointed out that while, “A number of long-standing First Amendment doctrines leave public schools and universities ample room to discipline students based on what they say on campus or in academic assignments…these traditional exceptions do not apply to off-campus speech unrelated to academic assignments, like Keefe’s Facebook posts.”
This is an area of the law that will need to be watched carefully, to see how it develops.
By Kyonzte Hughes, Contributing Writer
Last updated: March 2017
The First Amendment has been interpreted as protecting both verbal and nonverbal expression from censorship. This protection has been extended specifically to music, drama, film, and most forms of visual art.
In its 1968 decision U.S. v. O’Brien, the Supreme Court established a test to determine whether interference with expressive conduct is justified: namely, if there is a “substantial government interest,” if the interference would not amount “to the suppression of free expression,” and if the restriction is “no greater than is essential” to satisfy the government’s interest.
Miller v. California, the landmark 1973 case on obscenity, clarified that while art may be restricted where it violates the “contemporary community standards” for obscenity, “[t]he First Amendment protects works which, taken as a whole, have serious literary, artistic, political, or scientific value, regardless of whether the government or a majority of the people approve of the ideas these works represent.” In other words, art may be censored where it runs so far afoul of the community’s concept of decency that it is legally obscene, but may not be targeted because of any particular message that is found to be offensive.
While colleges and universities are engaged in disseminating knowledge and ideas, they also act as the cradle of new thoughts and fields of inquiry. This is true not only for the hard sciences, but also in the realm of drama, music, dance, and the visual arts. Controversy arises where works of art are so unconventional or challenging that they offend some people.
Recent years have brought confrontations over a mural of Malcolm X at San Francisco State University, art displays that were thought to be racist and/or sexist, dramatic productions of Terrence McNally’s play “Corpus Christi” (which some find to be a blasphemous depiction of Jesus), and screenings of pornographic movies at MIT.
Where offense is taken, educational institutions must weigh the concerns of those who oppose an artistic display against the artists’ right to have a forum for their expressive work. Schools have tried to address these situations in several different ways, including complete removal of the work; offering the artist a different venue in which to display the work; and providing explanations of the work in hopes of defusing the conflict.
Surprisingly, few of these cases have gone so far as a court battle, as the parties usually resolve matters themselves.
A few generalizations may be made concerning a public university’s ability to restrict artistic expression on its campus, though it must be kept in mind that the Supreme Court has never directly addressed the issue.
The deciding issue is often whether the art or performance is shown in a place that is generally considered a “public forum,” or if the school has placed certain content-based restrictions on what may be displayed. If the art is shown in a location in which the public has previously been invited to speak or present artwork, then anything that does not violate the local standards of obscenity will be protected under the First Amendment.
If the display area is not a public forum, however, some courts have held that the school may place reasonable restrictions on the subject matter of the exhibits, though not on the artist’s viewpoint. For example, they may ban art portraying athletics in general, but may not ban art that exalts only athletes of a particular race. In this way the institution retains a measure of control over its campus but is prevented from discriminating against pieces of art because of their viewpoint or, potentially, because they evoke a negative reaction from some observers.
Plays and movie showings are afforded some extra protections from censorship because they are not generally shown in broad view of passersby, but rather in closed settings for audiences that want to be there. Displays of visual art, which are sometimes in plain view of the public, are subject to different rules.
Political speech in any form is particularly protected by the First Amendment. As a result, unless a school has placed a prohibition on political expression in a certain location, art that contains any element that may be construed as a political message (such as an exhibit at the Art Institute of Chicago in which observers were encouraged to step on an American flag), will be all but immune from censorship.
Works that involve racial or sexual themes, however, may be subject to relocation or removal. In Lahme v. University of Southwestern Louisiana, a 1997 state case in which a sculpture bearing obscenities and racial epithets was placed on a college campus near an elementary school, the Louisiana Court of Appeals found that it was not a violation of the artist’s freedom of expression for the sculpture to be moved to a different, less-visible part of the campus, so long as the work was not completely removed. While not affording artistic expression the same protections as verbal speech, the court recognized that the right of an individual to communicate his or her point of view does not end with the spoken word.
Courts have generally decided in favor of university officials’ right to remove or relocate art exhibits. In Piarowski v. Illinois Community College (1985), the 7th U.S. Circuit Court of Appeals considered a state college’s decision to relocate a controversial art exhibit from a prominent ground-floor gallery to a less prominent fourth-floor space. Given that the gallery was not generally open to the public, the court decided that the gallery was not a public forum for First Amendment purposes. Furthermore, the court concluded that “relocation is not suppression” and the college’s decision did not violate the artist’s First Amendment rights.
Similarly, in the 1970 case Close v. Lederle, the 1st U.S. Circuit Court of Appeals reversed a lower court’s finding of a First Amendment violation when a state university removed a controversial art exhibit from a display corridor. The exhibit included nude paintings of men and women with very detailed genitalia. Though the corridor was regularly open to the public, unlike the gallery inPiarowski, the court weighed the interests of the artists against the interests of the public, which included children, who walked the corridor daily. The court reasoned that there was no suggestion that the artist sought to express any political or social views in his art, making his constitutional interests minimal.
The U.S. Supreme Court refused to hear either case.