Freedom of Speech Issues: A Legal Primer for Academic Leaders
Today’s college campus is a laboratory for the US Constitution’s First Amendment provision declaring that government may not “abridge” a citizen’s individual rights with respect to five related freedoms: religion, speech, press, assembly, and petition. Public colleges and universities must honor these rights and protect them, but private institutions are not so obligated—unless they commit to them by way of recruiting materials, mission statements, catalogues, or faculty and student handbooks. Freedom of speech, however, must be balanced by the institution’s concern for civility and respect for human welfare.
The search for truth in an open and vibrant democracy requires that controversial issues be discussed on campus—in classrooms, special forums, clubs, and elsewhere—with viewpoints that often result in uncomfortable conflicts among diverse groups of students and faculty with different political agendas, personal values, and religious commitments. However, there are limits to acceptable free speech. As US Supreme Court Justice Oliver Wendell Holmes said in a 1913 ruling, no one can legally yell “Fire!” in a crowded movie theater. Free speech but with restrictions—no easy balance for academic leaders in our time.
The nature of “speech” itself has been controversial and the center of many court cases. The First Amendment’s freedom of speech clause has been broadened in the process to mean “expression” in its variable forms, including armbands protesting the Vietnam War (the famous 1969 Tinker v. Des Moines case is a leading example, with the US Supreme Court declaring neither students nor teachers “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate”), banners (the 2007 US Supreme Court ruling in the Morse v. Frederick “Bong Hits 4 Jesus” case), and t-shirt slogans and images (see Diariano v. Morgan Hill, the 2014 Ninth Circuit decision in an American flag t-shirt case). Many of these cases from public secondary schools set precedents that may or may not apply to similar events at the college level where students are older and expectations for open debate are greater. But courts do consider these precedents when making rulings in college cases.
It is no wonder that college and university leaders—especially in public institutions—find themselves perplexed about the proper course of action as they try to develop policies and practices that balance the robust and open search for truth with the need for civility and order. What do they do when dealing with issues raised by such events as student protests, controversial visiting speakers, hate speech, charges of “political correctness,” Internet insults, sexist and racist taunts, and appeals for “trigger warnings” and “safe spaces”? And those are only a few of the current campus speech issues. Other federal court rulings from civil rights laws—such as IDEA, Title IX and Title VII, and Section 504 of the Vocational Rehabilitation Act—can also come into play when language that impugns race, gender, or disability is at issue.
A few recommendations in this “primer” may help academic leaders make considered decisions for their institutions:
- Become familiar with various federal court rulings that may affect your policies – Consider cases like Sweezy v. New Hampshire (professor freedom to teach controversial topics), Keyishian v. Board of Regents State Univ. of NY (protecting faculty in “subversive organizations”), Healy v. James (regarding controversial student organizations), Papish v.Board of Curators of Univ. of Missouri (protecting questionable language in an underground campus newspaper), Widmar v. Vincent (allowing a student religious group to use campus facilities), and Doe v. University of Michigan (hate speech codes). Rulings in these suits can give academic administrators some guidance in what the courts may do in cases on their own campuses.
- Consult organizations and individuals for information about college speech issues – Your own legal counsel, of course, is always the first place to start. The First Amendment Center at Vanderbilt University has many experts and publications of value to academic leaders. FindLaw is an excellent web site for analyses of cases on all educational issues of interest to college administrators. Another good source is FIRE (Foundation for Individual Rights in Education), an advocacy organization for free speech on campuses that provides detailed descriptions of policies and practices that have met with court sanctions.
- Examine all your publications for policies that establish speech expectations – This is particularly important for private institutions because these expectations may be determinative in a suit against the institution. Brigham Young University survived a lawsuit because it had very clear and consistent statements in its materials, catalogues, and handbooks about its given religious values and expectations for student behavior, including speech limitations. If you declare your institution a “bastion of free and liberal learning,” as many private colleges do, you may open yourself to challenges on that claim that you do not want and cannot defend. Vague and overly broad handbook requirements are often struck down by courts. (See, for example, the 1989 case of Doe v. Michigan.)
- Restrict or punish “offensive” digital messages only when you have proper grounds – Courts usually consider digital speech personal and private, unless an institution can demonstrate reasonable justifications for restricting such speech. Those justifications might include student handbook statements that are clear and specific, objections to messages that are “lewd, obscene, or patently offensive” (see the 1986 case of Bethel v.Fraser), pornography, messages that are deemed “true threats” (specific and capable of being carried out), or claims that are potentially libelous. The 1969 Tinker decision also noted that speech that causes a “material and substantial disruption” can also be punished. In our contemporary world, college students are increasingly instant messaging careless speech over smartphones and other private devices—opening themselves up to legal trouble. Academic leaders can educate them to these potential dangers.
A final thought
A college or university, whether public or private, provides students a rewarding learning experience and should be, as the US Supreme Court put it, “a marketplace of ideas” and a “place of unfettered, robust discussion.” Democracy demands and deserves no less. In the 1957 Sweezy case, the Supreme Court said: “Teachers and students must always remain free to inquire, to study, and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.” Knowing the legal parameters of campus speech challenges is a good first step toward successfully achieving and maintaining balance between freedom and order in these controversial times.
Thomas R. McDaniel is a professor of education emeritus and former dean and provost at Converse College; he is the author of School Law for South Carolina Educators.