In light of recent controversies over free speech on college campuses, I thought I would share some insights from my Higher Education Law class, which is a requirement for the Graduate Certificate in Title IX that I've been working on recently. All stages of this have been an eye-opener, but the ideas here seem relevant. I'm focusing entirely on the legal aspects of speech on campus because the question of whether students should protest speakers invited to campus is not a legal issue, but a cultural, political, and social one. The idea that colleges, or states, should prevent protests or punish students for law-abiding protests is ludicrous for the reasons below. Violence and destruction of property are different issues entirely.
Freedom of speech
Freedom of speech
Students in the educational context do not give up their First Amendment rights, including those of free speech. The Supreme Court has recognized that protected forms of expression are not limited to speaking, but also include symbols. Whiles there are limits to free speech - it doesn't cover obscenity or threats, or speech that is disruptive to the educational missions of colleges. Despite that, protected speech includes many things that students and faculty might find distasteful. That means that colleges cannot punish hate speech, and can only adopt viewpoint neutral regulations that restrict conduct if they can legitimately foresee that the conduct, including speech, might disrupt education on campus. Student affairs administrators don't have to wait until a riot erupts to disperse a protest or other gathering on campus.
However, at the same time, student affairs administrators cannot ban speech or other activities simply because they fear that there might be a disruption. The Supreme Court holds that colleges and universities must tolerate a modicum of incivility and disruption as part of campus life as long as it does not rise to the level of "material and substantial" disruption of educational activities. In order to take proactive measures to restrict speech, student affairs administrators must have a reasonable basis for doing so - mere concern of what might happen is not sufficient. There must be legitimate cause to foresee a significant disturbance of campus activities (Lake, 2011, p. 198-204).
Time, place, and manner
Because the Supreme Court has also held that organizations and institutions also have free speech rights, and that it has recognized the rights of colleges to restrict speech that interferes with their educational mission, they can insist that speech be limited to reasonable times, places, and manners. In recent years, the Court has been interpreting these restrictions in ways that tend to favor government institutions, which may give student affairs administrators a bit of leeway in implementing these restrictions on campus, especially when narrowly tailored to promote a significant interest that would not be achieved if there were no limits. However, student affairs administrators must also be aware that any restrictions must be reasonable, and selecting an option to restrict speech that essentially closes it off, does not meet the standard of being reasonable. Restrictions of time, place, and manner of speech must also be viewpoint neutral.
Free speech zones, which are becoming increasingly popular, fit into the category of time and place restrictions, and they pose some special challenges for student affairs administrators. They must ensure that they are not using free speech zones to close of speech in areas of the campus that are traditionally open public fora. In addition, administrators must takes steps to ensure that they are restricting certain types of speech based on the potential to disrupt education, rather than on the content of the speech. Student affairs administrators must also ensure that while restricting speech to free speech zones, they are not preventing "ample" opportunities for communication - free speech zones that no one goes near do not really provide a chance to communicate ideas (Lake, 2011, p. 204-205).
Chill, overbreadth, and vagueness
First Amendment rights extend beyond direct restrictions, but are also concerned with the issue of "chilling" of expression. If students worry that their speech may result in some kind of punishment due to campus rules. They do not have to actually be punished for campus limits to violate the First Amendment, but merely the threat rules pose might be enough. One of the ways in which this can happen is if rules are so vague or broad that they can be made to cover just about anything. Broadly written rules intended to restrict speech that would not normally be protected may end up restricting protected speech unintentionally. What this means for student affairs administrators is that they should try to be specific when creating rules and regulations related to speech. Assertions that rules are overly broad, or are too vague often appear in litigation on First Amendment matters, so administrators need to be aware of these potential problems (Lake, 2011, p. 206).
Colleges have multiple types of spaces, and each type of space allows varying levels of free speech, including (among others) a traditional public forum and a limited public forum. Although institutions have a bit of control over which places on campus are designated as what type of fora, student affairs administrators are unable to simply dictate which spaces will develop into which type of forum. As is common in public places in American society, the use of various fora on campus evolves over time. Colleges and universities cannot simply attempt to claim that there are no fora on campus, and while they can create preferred locations for speech, they cannot wipe out all nonconforming speech on campus.
Traditional public fora are generally seen as neutral public spaces in which no perspective is privileged above others. Spaces normally open to the public fall into this category - parks are one example. Other spaces that were not originally intended to be public fora may also develop into them over time. What is important for student affairs administrators to understand is that in traditional public fora they generally may only apply restrictions on the time and manner of speech. Content may only be regulated in traditional public fora if it serves “a compelling” interest of the state, which means that speech the administrators do not like often cannot be regulated.
Limited public fora present different challenges for student affairs administrators. These are areas that the university has created as different from other fora, and they may have features that allow administrators to limit speech in these locations because they are created for certain purposes. Student newspapers and student organizations, areas for signs and notices, and some types of Internet use fall into the category of limited public fora, as these areas are created specifically to further the educational mission of the institution. Student affairs administrators have more latitude in regulated limited public fora, but they still must obey the rules that their own institutions have created. However, they still cannot regulate points of view expressed(Lake, 2011, p. 207-217).
Some places that are generally not open to the public are not fora at all. In these places the college’s First Amendment rights of freedom of association or speech are likely at stake. Board meetings or administrative meetings fall into this category, as the administrators must have the ability to determine time, place, and content of the meeting in order to conduct the university’s business. Student advising appointments might also fall into this category.
In addition, although it may seem that private institutions of higher learning should have greater leeway in determining what type of speech occurs on campus, some parts of even private schools are so similar to traditional public fora that legislation and judicial rulings often treat fora at private colleges in ways similar to those at public institutions of higher education. As a result, student affairs administrators at private colleges should consult with legal experts in their jurisdiction to determine how local laws treat regulation of speech on their campuses (Lake, 2011, p. 218).
Lake, Peter F, Foundations of higher education law & policy: Basic legal rules, concepts, and principles for student affairs. Washington, DC: NASPA.