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First Amendment for College Administrators

Lesson 3: Public Forums and Your Campus

Video 5: Policy Application Tips

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Video Transcript

Now that we’ve heard about what types of restrictions are impermissible under First Amendment standards and some legislative considerations, it is worthwhile to explore some more practical tips on how to apply policies in a manner that respects all students' rights — including their right to listen.

As we’ve seen previously in this course, there are many pitfalls to avoid when drafting a First Amendment-compliant policy regulating student expression. However, it's also crucial that your staff is trained on how to apply the policy in the appropriate manner. Training your staff and making the policies easily accessible and understandable for students helps avoid confusion over university regulations and prevents rights violations.

From our years of experience working collaboratively with administrators on policies that work for their individual campus – as well as aiding students whose rights have been violated – FIREoffers the following tips for common campus controversies.

Scenario 1: The offensive flyer

Seemingly overnight, a slew of racist flyers appear across campus. An anonymous student posts a flyer endorsing a controversial COVID-19 theory. A holocaust denier has been invited to campus by a student group, and several flyers advertising the event upset many on campus. How should the university respond?

Commit to free expression early and often. You cannot ban flyers, even offensive ones, based on the viewpoint they express. So, instead, affirm the importance of free expression for our democracy and for a robust and thriving learning community, while stating unlawful expression will be restricted. Campus leaders must make clear that punishments based on unpopular or controversial — but protected — speech contradict the values of any university, and will not occur at your institution. 

If the university has adopted a version of the Chicago Statement – a free-speech policy statement authored by the University of Chicago – cite that commitment to granting the university community the “broadest possible latitude to speak, write, listen, challenge, and learn” when controversy arises. If the university has not made such a commitment, the administration should consider doing so. This proactive approach of endorsing the principles of freedom of expression avoids the appearance of taking sides in the latest campus controversy.

Scenario 2: The controversial speaker

Often, when a controversial speaker is invited to campus – typically by a student or student organization, those who disagree with their views call for the university to disinvite the speaker. This illiberal demand must be resisted by administrators. It is critical to resist calls for censorship via disinvitation. Expressive rights and academic freedom must be affirmed. In a similar vein, a heckler’s veto is another common disruptive tactic used to silence a speaker by severely and substantially disrupting a speech so that it cannot continue. This is not a “more speech” approach to expression you disagree with. There is no First Amendment right to shout down a speaker.

Administrators must not cancel student-planned speaker events due to the anticipated reactions of the speaker’s critics. This will only further encourage students to shout down or create a hostile environment for future planned speakers. By giving the heckler power to veto disfavored speech, colleges teach students that drowning out, shouting down, and assaulting those expressing differing opinions is an acceptable response to speech that they find offensive. Rewarding the bottle thrower by punishing the speaker only leads to more bottle throwers — and fewer speakers.

In order to protect free speech and ensure the safety of their educational communities, universities must clarify that the use of force to silence speech is not an exercise in free speech — it’s censorship. Encourage students to meet disagreeable speech with more speech. This could mean non-disruptive counter protests, pointed op-eds, and engaging with the speaker during Q&A to expose the flaws in their argument and express disagreement. 

It is also critical to train staff who interact with students such as those who approve flyers for posting, discuss speaker invitations and logistics, and provide security for events about the limits an institution has when it comes to regulating speech. 

When implementing policy, it is critical to emphasize the following key points:

Administrators must never make approvals or denials of expressive activity based on viewpoint-based criteria. That means that if the expression doesn’t fall into one of the limited exceptions to the First Amendment, such as harassment, a “true threat,” obscenity, or other limited categories, it should be permitted to be discussed, debated, and heard on campus. Even if you personally don’t agree with the expression — or think other students will be offended by it — this isn’t a reason to shut down the speech. Censoring expression on the basis of viewpoint is counter to the purpose of a university — a place where students and faculty come to learn by debating and discussing ideas. 

Universities are a place to learn. University leadership should educate students about the importance of free expression from day one and practice what they preach when there is pressure to violate First Amendment principles. By maintaining First Amendment compliant policies and educating students and administrators about the importance and legal limitations of the First Amendment, your university can build a campus where freedom of speech thrives.

Suggested Resources

• FIRE "”
• Mary Griffin, “Universities should endorse free expression now, avoid criticism later” (2018)
• FIRE, "Model Policies for College Campuses"