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First Amendment for College Administrators

Lesson 1: Public Colleges: Legal Landscape and Landmark Cases

Video 1: Introduction to the First Amendment

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Video Transcript

As a higher education administrator, it’s critical to know the free speech rights of the students and faculty you serve. Whether it’s a professor probing the more fraught theories of their discipline to hone a thesis for publication, or just a handful of students challenging one another’s takeaways in the hallway after class, it’s the job of the university administrator to protect intellectual curiosity. 

Free expression and academic freedom are at the core of a public university’s truth-seeking mission, which, in turn, plays a vital part in preserving free thought within our free society. These important principles are typically protected by university policy. But, because the search for truth through free inquiry and debate is also fundamental to our democracy, they are also protected by the First Amendment to the U.S. Constitution. So when public college or university administrators violate faculty or student rights to free speech, they expose themselves to lawsuits for injunctive, or even monetary, relief. 

The First Amendment states that Congress (meaning any governmental entity) “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

This course will focus on the First Amendment’s protection of freedom of speech. This means that Americans are free to speak and express themselves broadly without interference from the government. This expression can come in many forms—political protests, demonstrations on city sidewalks, music and art, and so much more. The First Amendment protects “a wide array of conduct that can qualify as expressive, including nude dancing, burning the American flag, flying an upside-down American flag with a taped-on peace sign, wearing a military uniform, wearing a black armband, conducting a silent sit-in, refusing to salute the American flag, and flying a plain red flag.” Citing a long history of Supreme Court precedent, Justices Thomas and Gorsuch here opined in 2018 that even wedding cakes can be expressive, and that the Free Speech Clause protects a baker’s right to refuse to design one for a same-sex couple. But the First Amendment does not discriminate based on personal values or politics, so it likewise protects students who want to host a drag show on campus.

In his classic treatise, On Liberty, the English philosopher John Stuart Mill noted that while many people claim to believe in “free speech,” in fact, just about everyone has his or her own notions of what speech is dangerous, worthless, or just plain wrong — and, for those reasons, undeserving of protection. Mill’s thorough, powerful, and compelling argument for unfettered free speech centers on the idea that human beings are neither infallible nor all-knowing, and the opinion one despises might, in fact, be right — or, even if incorrect, “contain a portion of truth” that we would not have discovered if the opinion had been silenced. Further, Mill argued, even if the opinion of the censors were the whole truth, if their ideas were not permitted to be “vigorously and earnestly contested,” we would believe the truth not as a fully understood or internalized idea, but simply as a prejudice: something we believe obstinately without being able to explain why we believe it.

FIRE president and CEO Greg Lukianoff builds on Mill’s philosophy to argue for the value of freedom of speech in modern society in his “lab in the looking glass” theory. While the dominant metaphor arguing for the value of free speech has been the “marketplace of ideas," Greg argues this metaphor is incomplete: It makes sense in the context of politics, and in academic scholarship, where scholars battle it out to figure out whose version of the world, from physics to ancient history, will prevail. But beyond that, the “marketplace” metaphor doesn’t really capture free speech’s most fundamental function: Freedom of speech gives you a fighting chance to know the world as it really is. Under the “lab in the looking glass” metaphor, Greg argues it is critically important to have the ability to know what opinion an individual holds—be that view bigoted, partisan, or conspiratorial—not because you may discover that view is true, but because knowing that information may be relevant before dating that person or making them your primary care physician.

Both for scientific reasons and for our success as a democratic republic, we need to know more, not less about the ideas in our fellow humans’ heads. Greg calls it his “Iron Law”: It is always important to know what people really believe, especially when the belief is perplexing or troubling. 

“The lab in the looking glass” and “the marketplace of ideas” aren’t in competition with each other. The lab theory is especially important when ideas aren’t capable of being tested as true or false, such as artistic expression. The marketplace is especially appropriate in higher education, where scholarship is meant to test and re-test ideas.

The American system of free speech is protected primarily by the First Amendment to the United States Constitution. Although it tracks Mill’s theories closely, there are important differences. Our legal freedom to speak is not without limits, and those limits will be discussed later in this course. By and large, however, our system leans very heavily toward unfettered free speech.

In this course, we’ll learn about the legal landscape and landmark cases surrounding the First Amendment on campus, hear about the limited, narrowly-defined unprotected categories of expression, learn about reasonable restrictions the government can place on speech, and dive in to harassment law to learn why it often implicates freedom of expression. For each lesson, we will also provide extensive resources for further learning about each of these topics.

Later on in this lesson, we’ll learn what types of limitations the First Amendment imposes on government entities, like public universities, to regulate protected expression. But first, we think it’s worth considering what’s at stake when it comes to free speech on campus, and specifically the college administrator’s role in fostering free inquiry and debate.

Suggested Resources

• Greg Lukianoff, "Coronavirus and the failure of the Marketplace of Ideas"

• FIRE, "Guide to Free Speech on Campus"

• Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (2018)

• "Opening Brief on Appeal to the 5th Circuit" in Spectrum W.T. v. Wendler (2023)

Next Lesson: Administrators' Roles in Free Inquiry and Debate