What speech on campus is protected? What’s not protected? Arthur B. Spitzer, senior counsel for the American Civil Liberties Union of the District of Columbia, answered our questions about free speech on campus.
This article comes from the American Association of Community Colleges’ bimonthly magazine, the Community College Journal.
What are some of the most common issues that pop up regarding free speech on campus?
There are many. For example, when and where can people gather to protest or distribute information? Can the college require a permit for people to do so? Can the student government make rules regarding speech? Can the college or the student government use student activity funds to favor some groups and punish others? Can the college prohibit hate speech? Can the college regulate or punish off-campus speech? What about the use of social media?
Legally, when does free speech cross a line and become illegal or actionable?
The first key question is whether the college is public or private. Public institutions are governed by the First Amendment, which prohibits the government from abridging freedom of speech, freedom of the press or freedom of assembly. Private institutions are not governed by the First Amendment and can make their own rules about such things. But if a private college promises to respect freedom of speech — for example, in a student handbook — then a court will hold it to that promise on the ground that it’s part of the contract between students and the college.
Under the First Amendment to the U.S. Constitution, there is very little speech that is actually not protected, meaning that it can be prohibited by the government — which includes a community college. Probably the category most relevant to a college is “incitement” — speech that creates a clear and present danger to public safety. But those words can’t be used loosely. An incitement must be a specific directive to cause significant harm to people or property now, not merely a general or abstract encouragement of unlawful conduct.
True threats are also unprotected, but a true threat must be a serious one, not just a joke or strong language or a prediction. For example, “someday the faculty will get what they deserve” is not a true threat. Likewise, “fighting words” are unprotected, but epithets are not automatically fighting words. To be unprotected as fighting words, they must be said to a person’s face, and must be likely to provoke a fight. And police officers, including campus police officers, are (or should be) trained to have thick skins, so an epithet directed at an officer doesn’t count as fighting words.
Harassment or stalking are unprotected conduct, and speech may be part of that conduct, but it must rise to a where a reasonable person would feel seriously alarmed or frightened, not just annoyed or angry. Defamation (libel and slander) is unprotected, but again, criticism — even strong and unfair criticism — does not equal defamation, and true statements or statements of opinion cannot be defamatory. And, of course, on the academic side, plagiarism or unauthorized copying of copyrighted material is also not protected.
Although there’s very little speech that can be prohibited, speech can be regulated in various ways, depending on both the nature of the speech and when and where it occurs. Some areas on campus, such as most streets and sidewalks, are likely to be public forums, where anyone is free to speak on any subject, individually or in a group. Speech in a public forum can be regulated with regard to “time, place and manner,” but such regulation must be reasonable and must leave open adequate alternative avenues for the desired speech. Thus, for example, loud demonstrations can be restricted to times and places where they won’t disrupt classes or exams. Other campus areas, such as auditoriums or meeting rooms, are likely to be limited public forums, where the college has decided to allow speech on only particular topics or by particular categories of people. For example, at a student government meeting called to discuss a particular topic, speech by non-students or speech on other topics can be off-limits. At a faculty meeting, students and staff may have no right to speak. And some areas are not public forums at all — no one has a right to start making a speech about politics in math class.
What are some mistakes colleges make when it comes to free speech?
The main mistake is probably over-regulation. Freedom of speech means that people should, in general, be free to speak where, when, and how they wish, and to be able to direct their speech to their desired audience. Restrictions should be imposed where necessary to maintain order and avoid disruption of classes and other events, but regulation for regulation’s sake is unconstitutional
Treating speakers differently based upon the different viewpoints they express is almost always impermissible, because “viewpoint neutrality” is a core First Amendment value. An easy example is that if the College Democrats are allowed to meet or hold a rally (and in a public forum that couldn’t be prohibited), then the College Republicans must be allowed to meet or hold a rally on equal terms. But the same rule applies to harder examples: pro-choice and pro-life, pro-Palestine and pro-Israel, pro-citizenship for Dreamers and pro-deportation of all “illegal aliens.”
Another mistake is to think that student government is free to regulate speech in ways that the administration cannot. A student government that exercises power delegated from the administration, and that allocates funds collected from students by the college, is equally subject to the First Amendment. There can be neutral rules, for example, that only groups with some minimum number of members can qualify for funding. But within such neutral rules, a student government cannot fund only student organizations or guest speakers whose views it finds acceptable, and not those whose views it finds unacceptable or offensive.
