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First Amendment for College Administrators

Lesson 1: Public Colleges: Legal Landscape and Landmark Cases

Video 5: First Amendment on Campus for ������ýapp�ٷ�

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Video Transcript

FIRE express themselves in all kinds of ways on campus, from answering Q&As in class or at events, protesting, tabling, putting up flyers, or exercising their First Amendment right to assemble by joining student groups. This speech can be planned, like in the case of an invited campus speaker, or it can be spontaneous, like when students protest an event unfolding in real time.

These are just some examples of the kind of student speech you may encounter at colleges and universities. The important thing to remember when thinking about student speech is that, in higher education, students have the same free speech rights as anyone else in our country. Courts have recognized that K-12 schools may have special interests that permit them leeway to restrict their students’ free speech rights. But college students are adults, and the Supreme Court made clear in the 1972 case of Healy v. James that its precedents “leave no room for the view that . . . First Amendment protections should apply with less force on college campuses than in the community at large.” Consequently, students are, for example, free to publish a newspaper that features a cartoon of policemen sexually assaulting the Statue of Liberty, as the Court held in the 1973 case of Papish v. Board of Curators of University of Missouri.

While administrators have substantial control over how students use most indoor campus areas, and can even deem certain prime outdoor areas as reservation-only or un-reservable, the college should allow student speech to be “uninhibited, robust, and wide-open” in the vast majority of open, outdoor campus spaces.

Student speech can never be segregated to tiny or out-of-the-way — quote-unquote — “free speech zones.” Courts strike these down and public schools have been penalized for censoring students in this way. As we like to say, on public campuses (and private ones that promise free speech), most of the campus is a “free speech zone.”

Administrators can employ narrowly tailored time, place and manner considerations to regulate large-scale student events, or student events using amplified sound, tents, or tables that may impede traffic in certain campus spaces. These regulations must always be reasonably related to ensuring the university’s basic functioning, and applied in a neutral manner to all students, regardless of their views.

Neutrality is also critical when administrators or student governments (which are acting as agents of the university) approve student groups and student-invited speakers, or dole out student funds. Courts have held that when universities collect student fees to fund groups or group activities, those funds must be distributed based on neutral criteria, without regard to students’, student groups’, or speakers’ views. For example, the student government can deny a speaker funding request because the group didn’t fill out the paperwork on time, but it can’t deny that same request because the speaker is “problematic,” “offensive,” or otherwise unpopular. That’s viewpoint discrimination. It also can't deny speech based on subject, like “political speech,” even if that's applied equally to both Republicans and Democrats. That’s content discrimination. We’ll dive deeper into viewpoint and content discrimination in various campus forums for speech later on in the course.

FIRE have the fewest expressive rights in class, where the faculty member’s expressive and academic freedom right to control the classroom is paramount. In the classroom, professors can require students to take “devil’s advocate” positions that would otherwise go against the students’ closely held beliefs. However, when a faculty member opens up discussions or asks for opinions, students should have the right to express their views without penalty. This is especially true if an assignment requires students to voice opinions to audiences outside the classroom. True, faculty can give a student a low grade if the views the student expresses fail to meet the expectations of the assignment. But faculty may not discriminate against viewpoints unrelated to academic work.

It’s important to both ensure campus policies or practices don’t violate students’ expressive rights. Of course, when speech is a true threat or part of a pattern of unlawful conduct — like discriminatory harassment — it is not protected. Not only can you investigate and punish speech like this, but you should.

So when you get a report or complaint involving student expression, how do you know the difference between protected and unprotected speech? The First Amendment protects a lot of speech, so it’s very likely the speech is protected. The Supreme Court has recognized only limited categories of unprotected speech, namely: true threats, incitement to imminent unlawful action, and discriminatory harassment. You’ll learn more about those later in this course.

In the next video, we’ll discuss the kinds of policies that go over the line — policies that, under the guise of regulating conduct or unprotected speech, burden student and faculty free speech.

Suggested Resources

• Healy v. James (1972)

• Papish v. Board of Curators of the University of Missouri (1973)

• Cohen v. California (1971)

• New York Times Co. v. Sullivan (1964)

• FIRE, "Academic Freedom and Classroom Speech"