Trustee Talk, Issue 18: Free Speech Issues on College Campuses, Part II


What should boards know about Constitutionally protected and unprotected Speech?


As stewards of public education, boards should advocate for academic freedom, freedom of expression, and free inquiry. Most boards and college presidents aim to maintain a safe, violence-free campus environment where constitutional free speech rights are honored. However, due to current political and legal complexities, such laudatory goals may not play out totally peacefully on all of our college campuses.

“Upholding free speech is a necessary, but sometimes complicated, task for leaders in higher education,” says Dr. Andrew Q. Morse, former director of policy research and advocacy at NASPA, the leading association for student affairs professionals. Colleges’ “time, place, and manner limitations” of free speech on campus speakers and demonstrators are now being frequently challenged in the court system nationwide. According to Ira Shepard, ACCT’s general counsel, the “presumption is against the college for free speech violations. The First Amendment is sacrosanct in this country.”

Boards need to know that there are very high hurdles to overcome when reviewing their college’s free speech policies about controversial speakers coming to campus, speech codes, free speech zones, and due process, for which the burden of proof is placed on institutions. “The courts require a steep hurdle to those institutions putting curbs on free speech on campus no matter how obnoxious the potential speech is or what the perceived possible danger is. Where the result is possible discipline of a student, faculty member, staff, or other member of the community, due process should be granted to the individual prior to discipline,” explains Shepard. Moreover, very few of these situations involve set responses. First Amendment lawsuits involving colleges today are being decided case by case depending on the specific details of each incident.

The most important question for boards

”Doing what you think is the right thing may not win in court,”cautions Shepard. “Different courts decide very similar First Amendment fact patterns differently and for different reasons. The First Amendment is not an absolute science yet.” Nevertheless, each board must understand the frailties of the First Amendment and ask: “Do we have the appropriate policies in place so that we can deal with these issues effectively?” Reviewing their current policies with the college administration and expert First Amendment counsel is a “must-do” first step for boards.

Hate speech is generally protected

It may come as a surprise to many that offensive speech is typically considered protected speech under the U.S. Constitution. Racists, bigots, rabble-rousers, and those who provide hate speech are not only generally protected by the First Amendment, but they also appreciate the ruckus that their presence often causes. For many, protests add to their satisfaction and emphasize the false notion that much of their extremist thinking may not only find sympathetic ears on the campus, but also provide opportunities to push political claims that their free speech rights are under attack.

Except for the black and white situation of calling out “fire” in a crowded theatre to cause imminent panic, many incidents regarding free speech are ambiguous. “It depends” is the mantra that many legal experts tell us. “It depends on the court, the state, the
situation,” admits Shepard. Even if the college believes that violence will occur if a particular speaker arrives and that exorbitant security would be warranted, the college president is obligated to provide access to the speaker. “Imminent danger” is not easily accepted by the courts, and the college cannot pass security costs to the speaker or the sponsoring organization on the theory that doing so “chills” free speech rights.

What speech is protected, what speech is not? It depends!

Below is a chart of several First Amendment scenarios that our colleges may face and information on the factors involved when analyzing whether the speech may be considered protected or unprotected under the First Amendment. This chart is for general illustrative purposes only; it is not meant to and does not provide legal advice or guidance. The facts of a real-life situation may lead to court decisions inconsistent with the views expressed in the chart. Boards are advised that before acting in ways consistent with any conclusions drawn from this chart, it is absolutely necessary to seek expert legal advice from a First Amendment practitioner or expert.

Acceptable ways to show displeasure

Many campus protests against controversial speakers turn to violence, a strategy that college administrators indicated is never acceptable in a 2018 survey by ACE’s Center for Policy Research. Some presidents suggest that there are more acceptable ways to show displeasure with a particular speaker, such as silent walkouts or signage that does not restrict audience views or peaceful protests in designated places. Students holding facilitated class discussions or bringing in speakers with alternate views can also calm the waters without resorting to violence.

First Amendment rights are not a one-size-fits all situation, and the law is not favorable to a college’s attempt to limit free speech even in very dangerous situations. Shepard notes, “Even in the aftermath of Charlottesville, there has not been a new crop of cases upholding a college’s right to limit free speech even in cases of alleged high danger.”

When is speech violent?

Lisa Feldman Barrett, author of How Emotions are Made: The Secret Life of the Brain and psychology professor at Northeastern University, posits that speech can be violence when words have a powerful effect on a person’s nervous system and can cause chronic stress. “Certain types of adversity, even those involving no physical contact, can make you sick, alter your brain — even kill neurons — and shorten your life,” she says. “If words can cause stress, …then it seems that speech — at least certain types of speech — can be a form of violence.“ Feldman further argues that certain types of controversial speech that can cause long bouts of stress shouldn’t be acceptable on a college campus or in civil society. While she agrees that “someone else’s distasteful perspective can be educational,” she finds harmful health effects in “a political climate in which groups of people endlessly hurl hateful words at one another, and of rampant bullying in school or on social media. A culture of constant, casual brutality is toxic to the body, and we suffer for it,” she says. “We must also halt speech that bullies and torments. From the perspective of our brain cells, the latter is literally a form of violence.”

Free Speech and Racism

In a May 2018 article in The Washington Post, Susan Nossel, executive director of PEN America, highlights the connections between free speech protests and racism. “Protests have been led by students of color…Their concerns have centered on eradicating persistent manifestations of discrimination that have outlasted decades of efforts at integrations: slurs…racist incidents, …stereotypes, …social segregation and …entrenched norms shaped by and for the privileged.” One only has to look at the makeup of clubs, fraternities, and sororities, the representation of students in the academic disciplinary system, and the number of reported nooses and taunts using the n-word to understand what Nossel calls “the stubborn legacy of race in our society.”

Racist incidents on college campuses have tripled, according to the Anti-Defamation League. Whether anti-Muslim, anti- Semitic, or anti-black, such incidents explain why students feel menaced when white supremacists chant and march and hang nooses on campus trees. Sociologists and psychologists have documented that persistent slurs and taunts compromise mental and emotional health and academic performance.

Campus lawyers’ views

“Every college — public or private, large or small, residential … or not — is one tweet away from a First Amendment tussle.” Those words begin Campus Lawyers’ Deepest Fear: The Protest or Tweet that Spins into a Free-Speech Crisis, an article published by
Sarah Brown in The Chronicle of Higher Education in 2018. ACCT hopes that these articles will help colleges prepare appropriately for any contingency. “I’d like to think the law makes sense,” Shepard notes. However, he predicts that in the next five years that there will be a change in case law, particularly to assuage the costs and burdens on our public colleges.

So what can leaders do?

With the support of the board, there are actions college leaders can take to minimize disruption and to prepare the campus for a controversial speaker. An article with specific ideas is NASPA’s The First Amendment and the Inclusive Campus: Effective Strategies for Leaders in Student Affairs, some of which are detailed in the box at right.

Each vice president interviewed for this brief spoke about the importance of, as one put it, “having an all hands-on-deck” approach to planning for and managing speakers or events on campus. One vice president shared, for example, that their campus strove to maintain a “culture of collaboration” by ensuring that all campus partners that held a stake in any particular development or challenge confronting the campus were made aware of the issue and had an opportunity to help plan for or respond as a cross-functional team. “We had a culture of collaboration and communication in place long before [the controversial speaker] came to our campus. That enabled us — our facilities, campus safety, communications, student affairs — to be ready,” the vice president said (NASPA).

Disclaimer: This newsletter is offered for general informational purposes only. It is not offered as and does not constitute legal advice. The views and opinions expressed in this article are those of the author and they do not necessarily reflect the official policy or position of the association. 

Do YOU have a Question for us? Email your question to: Norma Goldstein