Free Speech Q&A: FAQ About Free Speech on Campus

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What is the source of our free speech rights?

Free speech rights emanate from the First Amendment to the Constitution[1] and from state constitutions. The Federal Constitution limits government action and applies to all public/state colleges and universities. It serves as a floor, not a ceiling. State constitutions may grant more robust free speech rights than the Federal Constitution, but never fewer.

Is there a distinction between private and public universities?

Unlike public universities, private schools are not directly bound by the First Amendment. They have much more leeway to limit speech.[2] However, private universities are bound by the contractual obligations that they undertake with their students and faculty. Many institutions promise freedom of expression in university promotional materials and in student conduct policies. Furthermore, the vast majority of private universities pride themselves on being bastions of free thought and expression. 

Is all speech protected?

No. There are a number of types of speech including obscenity, defamation, invasion of privacy, threats, harassment, and incitement to illegal activity that are not protected by the First Amendment.

Preventing authorized speakers from talking is not protected by the First Amendment. This is often referred to as the “heckler’s veto.” When campus authorities or police allow dissenters to drown out someone’s speech or prevent someone from speaking, they are allowing protestors to silence that speaker, and thus fail to protect the constitutional rights of both the speaker and the audience.

Can a university impose restrictions on protected speech?

University campuses are typically considered limited/designated public forums by the courts. This means that the government can choose whether or not to open the forum (a.k.a. the campus) to speech.  Once the campus is opened to one type of protected speech, it will be treated as a public forum. 

In a public forum, restrictions are permitted as long as they are unrelated to the content of the message   (content-neutral restrictions). For example, a university can impose time, place, and manner restrictions. “Speakers may use an amplified sound on the quad between noon and 1 p.m.” meets the content-neutral restriction requirement because there is a time (noon to 1 p.m.), place (quad), and manner (amplified sound) specified that is unrelated to the content of the message. 

In contrast, content-based restrictions are subject to strict scrutiny, the most rigorous form of judicial review. Content-based restrictions come in two forms: subject-matter restrictions and viewpoint-based restrictions. An example of a subject-matter restriction is a ban on all immigration protests. An example of a viewpoint-based restriction is a ban on all pro-immigration speakers. These types of restrictions infringe on free expression and are prohibited by the Constitution unless they can meet strict scrutiny.[3]

What about free speech zones?

Free speech zones are limited areas on campus where students can exercise their expressive rights. Free expression is prohibited in all other areas of the campus. Free speech zones often require pre-registration and can only be used at certain times and/or certain days. While free speech zones look like content-neutral restrictions, courts have sometimes found them to be overly restrictive and therefore contravene the First Amendment. Courts consider the size of the zone as compared to the entire campus and the amount of students on campus. Free speech zones which effectively stifle expressive activity have been struck down by the courts.[4]

Is hate speech protected speech?

Yes. Hate speech is free speech, and may not be shut down. "If there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate."[5]

At the same time, hate speech has a harmful impact, and must not go unanswered by university leaders, faculty and staff. Universities should have clear policies and guidelines about free speech and should be prepared to respond in the face of ugly rhetoric. 

How can universities respond to constitutionally-protected speech that is offensive and hurtful to members of its community?

Universities should respond to offensive discourse vigorously in order to assure members of their community that the campus is a safe and inclusive place. This requires being equally concerned about and responding to instances of bias directed against any group on campus. Responses should be based on the incident itself—not the group identity of the targets. The most effective responses to hate speech are timely, specific and direct. 

Are academic freedom and free speech interchangeable? If not, how are they different?

Academic freedom and free speech rights under the First Amendment are two related but analytically distinct concepts. Academic freedom addresses the right of universities to determine forthemselves: 1) who may teach; 2) what may be taught; 3) how it should be taught; 4) who may be admitted to study.[6] Academic freedom is important because it allows professors and students to critically explore unpopular or controversial ideas without fear of reprisal. 

Academic freedom has a number of sources.  The protection it affords will vary according to state law, institutional custom and policy, and whether an institution is public or private. 

What are some questions for further consideration?

Have campus stakeholders been educated about free speech in the university setting, including issues of academic freedom?

Does the university have clear policies about what spaces on campus are open for speech and for whom? This includes:

  • Clear time, place and manner restrictions;
  • Clear guidance about when/if a permit is needed for speech-related activities and how to obtain such permit;
  • Whether outsiders are treated differently than members of the campus community.

Do campus administrators and law enforcement work with student groups in advance of speakers coming to campus?

  • The host group and other groups that may be impacted by the content of the speech should be included.
  • How is level of security needed at an event assessed?
  • Is there a consistent university policy for handling counter-protesters, including where they should stand and the point at which a disruption becomes a heckler’s veto? See ADL’s checklist for controversial speakers. 

[1] Amendment I. “Congress 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.”

[2] Except for California which has a statute that applies the First Amendment to private universities and colleges (see California Education Code § 94367).

[3] Under strict scrutiny, a restriction must narrowly tailor further a compelling government interest. See e.g., Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 655 (1990). 

[4] For example, students at Texas Tech University challenged the school’s lone free speech zone, a single 20 foot-diameter gazebo for a campus of 28,000 students. Texas Tech responded by expanding the number of free speech zones on its campus, but the court found that was not sufficient. A federal district court judge held that Texas Tech’s policy still violated the First Amendment and must be revised to open up more of the campus to free speech. See Roberts v. Haragan, 346 F. Supp. 2d 853 (N.D. Tex. 2004)

[5] United States v. Schwimmer, 279 U.S. 644  (1929) (Holmes, J., dissenting).

[6] Sweezy v. New Hampshire, 354 U.S. 234 (1957)

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