What is “Free Speech” and What Should Public Colleges & Universities Do to Protect It?

By Chris Gothard (’19, Political Science, Honors College)

“Congress shall make no law . . . abridging the freedom of speech.” -First Amendment, United States Constitution

Free speech on college campuses is a topic that has been in the news frequently over the last several years. There are a couple of reasons for the attention given to this topic. First, students continue to challenge policies and practices of university officials, taking questionable behavior to court for a determination on its legality. Students have challenged different policies and conduct of university officials, including free speech zones, student organization recognition, security fees for outside speakers.

Another reason for the increased attention paid to free speech on campus stems from an executive action taken last week. On March 21, 2019, President Trump signed an executive order intending to ensure the protection of free speech on campus. “[Trump’s] executive order conditions research funding on ‘compliance with the First Amendment’ and directs federal agencies to ensure that institutions receiving federal research or education grants ‘promote free inquiry’” (Schwartz, 2019). According to the President, this was done to maintain the right to free expression and free speech on college campuses in a time when “many universities have become ‘increasingly hostile’ to free speech” (Schwartz, 2019).

Gallup recently conducted a nationwide poll of just over three thousand students on the topic of free speech. There were two important findings: first, the survey found that 61% of students feel that the campus climate at their university prevents people from saying what they believe (Jones 2018); secondly, this poll found that a majority of students believe that hate speech does not deserve First Amendment protections (Chokshi 2018). Many argue that these results are indicative of students’ desire to create a campus environment that is inclusive for all. In Speech First, Inc. v. Mark Schlissel, et al. (2018), Judge Parker noted this struggle to balance inclusion and free speech, “this action reflects a conflict faced by many public universities in their attempt to balance the First Amendment rights of students and the need to provide a safe learning environment free from discrimination and harassment.”

Public vs. Private Universities and Colleges

Public institutions are state agents that are required to respect the constitutional rights of students. The First Amendment only regulates government action. Private institutions, those that do not get government money, set their own standards for protecting free speech as they are not bound by the First Amendment. Public colleges and universities are typically held to account in a court of law, where a judge determines the permissibility of different institutional policies and the legality of administrator conduct. A judge can issue an injunction, ending a policy deemed unconstitutional, rule damages to be paid to the plaintiff, if an injury occurred, among other things, to dissuade the continuation of unconstitutional policies or conduct.

Role of the Courts

The courts are tasked with deciding cases and resolving controversies under the Constitution. Thus, any challenges brought by students, or groups representing them, would be decided by the judiciary. Students can challenge school policy, administrator conduct, and much more in the courts.

Forums and Permissible Regulation

The amount of protection given to speech is dependent on the forum in which that expression occurs. Each forum comes with a standard used to evaluate permissible regulation. It is important for students to understand what forum they are operating within so that they understand what standards regulations need to meet to be constitutional.

A traditional public forum is a forum that has been traditionally available for debate, like a public sidewalk; restrictions in this forum must serve a compelling government interest and be narrowly tailored. A designated public forum is public property that is open for public speech but is not a traditional public forum. A designated public forum can be closed; however, so long as it is open, restrictions must serve a compelling government interest and be narrowly tailored as well.

Limited public forums are government property made available to specific groups or made available for the discussion of specific subjects; restrictions in this forum must be reasonable and viewpoint-neutral. Nonpublic forums are those forums that are not traditional nor designated forums; restrictions in this forum must be reasonable and viewpoint neutral as well.

Unprotected and Protected Speech

Unprotected: Incitement, Fighting Words, True Threats, Obscenity, Child Pornography, Perjury, and Defamation

Protected: Everything Else, including Hate Speech, Spontaneous Speech, Anonymous Speech

JMU Free Expression Policy (For Students):

JMU allows free expression in any outdoor spaces on campus that do not have limited access; therefore, JMU does not have a free speech zone. Outside speakers are permitted to lecture on JMU’s campus, and reservations of spaces to host events will not be restricted based on the speaker’s viewpoint. Within JMU’s free expression policy, time, place, and manner regulations are permitted to provide safety and order, so long as they are reasonable, viewpoint-neutral, and narrowly tailored.

Free Speech Zones:

Free speech zones are specifically defined areas on campus, usually fairly inaccessible to most student traffic, where students can speak freely on any topic that they wish. Schools with free speech zones, typically, do not allow that same freedom of speech in areas outside of the designated zone. This concept has been repeatedly struck down as an unconstitutional limitation on free speech. This question most prominently came up in the court case Roberts v. Haragan (2004), where the court ruled that Texas Tech University’s free speech zone (a twenty-foot gazebo) was not constitutional.

Imposition of Fees:

Some institutions have been challenged for having student organizations that invite controversial speakers to campus foot the bill for security costs (O’Shaughnessy 2017). Often times, costs can be extremely high, sometimes high enough to prevent the organization from being able to have their event, due to protests by opposing groups. Also, challenges have been brought alleging the unequal imposition of fees, claiming that the amount charged was dependent on the viewpoint of the invited speaker. The Supreme Court has ruled that it is unconstitutional for an institution to impose monetary burdens on specific speakers based on the content of their speech (Rosenberger v. Visitors and Rectors of University of Virginia 1995). Additionally, the Supreme Court ruled that charging security costs for controversial events is unconstitutional, because it imposes financial burden based on content (Forsyth County v. Nationalist Movement 1992). Nevertheless, this is still allegedly occurring. For example, the University of New Mexico attempted to charge the College Republicans chapter over three thousand dollars for security costs when they invited Milo Yiannopoulos to speak (O’Shaughnessy 2017).

Heckler’s Veto:

The heckler’s veto has also become an important part of the conversation on free speech. Defined as “the disruption of a speaker’s presentation by audience members who disagree with the message or messenger,” the heckler’s veto is being used by student groups to deny the right to free speech to speakers with whom those groups disagree (Snyder 2002, 103). Numerous speakers, like Charles Murray, Allison Sanger, and Pete Singer, have had the heckler’s veto used against them, which many claim to be an unconstitutional impediment to the exercise of their free speech rights (Calvert 2017, LaBossiere 2017). The heckler’s veto was addressed in Justice Douglas’ dissenting opinion in Feiner v. New York (1951), in which he wrote that the government, the police force in particular, is responsible for protecting the free speech rights of citizens from being suppressed by hecklers.

While the heckler’s veto has arguably been used in a way that infringes upon different individuals’ right to free speech, there are others who argue that the heckler’s veto is purely the heckler exercising his or her free speech rights. Additionally, many use the heckler’s veto to drown out speech that the hecklers do not believe deserves First Amendment protections, like offensive hate speech.

In the legal context, the constitutionality of the heckler’s veto is most in question when the hecklers, or reacting party, force a speaker’s event to be shut down by the government. As the First Amendment protects individuals from government suppression of free speech, this kind of situation is when free speech rights have the most potential of being unconstitutionally violated. This is best exemplified by events that unfolded at UC-Berkeley last year. Conservative speaker Ann Coulter had her scheduled lecture at Berkeley cancelled by the school’s administration when Antifa protestors rioted in the streets as she was getting ready to speak. Situations like this raise significant questions over the legality of the heckler’s veto in this context.

Discussion Questions:

What is the value of free speech? What are the implications of free speech?
Is civil discourse and an appreciation for free speech fading in society, particularly on campuses? Is there an issue with the protection of free speech on campuses?
1. What can this be attributed to? What do you base your opinion on?
How should colleges and universities balance free speech and inclusion?
1. Is this even possible?
2. What should be the considerations taken into account when coming to a decision?
3. Who should be involved in decisions like this? (i.e. crafting policy)
Is there any protected speech that should or should not be protected? Why?
1. Should hate speech be constitutionally protected?
What do you believe is the appropriate way to handle opinions or speakers that you disagree with?
Do you agree that different forums should be governed by different standards?