Speech on Campus After 9/11: Less Free than It Used to Be?
May 25, 2006
FindLaw Legal News and Commentary
Universities have traditionally been places where debate and the free exchange of ideas have been welcomed. But after 9/11, that may be changing -- as some recent, troubling incidents suggest.
In this column, I'll survey some recent incidents suggesting free speech on campus is in peril, and discuss the extent to which the First Amendment protects student and faculty speech
Cracking Down on Student Demonstrators and Controversial Student Speech
Recently, students at the University of Miami (a private school, but one with a stated policy of fostering free speech) demonstrated alongside striking maintenance workers to show solidarity. Now, they face the threat of disciplinary charges.
These students received "administrative subpoenas" to appear before a school official, and were told they faced possible major disciplinary action on grounds of "disorderly conduct" and failure to comply with a school order. But instead of charging the students, the official asked them to look at pictures and identify others who participated in the strike activities.
Attorneys for the students allege that the school is trying to intimidate the students and is infringing on their First Amendment rights to freedom of speech and assembly. Some compared the university's actions to those used by Senator McCarthy, who brought citizens before Congress to testify against their alleged communist associates.
Meanwhile, students arrested at the University of California in connection with similar demonstrations occupied a building, and had to be physically removed. They were arrested and charged with disorderly conduct and failure to comply with school orders.
Similar student demonstrations at the University of Virginia also ended in arrests. Like the charges against the University of Miami students, the charges against the U.Va. students are vague: disorderly conduct "on University-owned or leased property or at a University-sanctioned function," and "failure to comply with directions of University officials." One U.Va. student claimed that, "We were in the middle of good-faith negotiations and they decided to respond with arrests."
Both student groups -- at the University of California and at the University of Virginia -- claim they long attempted to negotiate with university officials, to no avail.
A student at the University of Chicago also faced possible disciplinary action after posting a cartoon depicting the Muslim prophet Mohammed on a dormitory door. (The incident followed the expulsion of two other U. Chicago students, after one wrote racist and anti-Semitic remarks on the other's whiteboard.)
Although University of Chicago is a private institution, its motto is "Crescat scientia; vita excolatur -- Let knowledge grow from more to more; and so be human life enriched." It promotes itself as the "teacher of teachers," and boasts that: "Although the University was established by Baptists, it was non-denominational from the start. It also welcomed women and minority students at a time when many universities did not." In light of its stated mission of exploring knowledge, U. Chicago's suppression of free speech seems deeply hypocritical.
Finally, New York University -- another private institution -- has similarly censored discussions of the Danish cartoons of Mohammed.
Students: Their Free Speech Rights at Public (and Sometimes Private) Universities
Because the Constitution requires "state action" -- that is, government action -- typically only public universities are subject to First Amendment prohibitions and protections. (The argument that a private university that receives federal funding is thus a state organ subject to the First Amendment is generally a weak one. Many factors would be weighed by courts, such as university governance, and the appointment of trustees, and relevant legislation.)
However, private universities may be bound by state statutes or state constitutional restrictions. For example, California's "Leonard Law" requires that "no private postsecondary educational institution shall make or enforce any rule subjecting any student to disciplinary sanctions solely on the basis of conduct that is speech or other communication that … is protected" by the First Amendment or the California Constitution. And the New Jersey Supreme Court ruled in 1980, in New Jersey v. Schmid, that a state constitutional guarantee that "every person may freely speak … on all subjects" applied to a private university.
Even at public schools, there is one special legal limit on students' First Amendment rights: Student speech must not interfere with educational activities -- so, for instance, demonstrators who block access to buildings or classrooms may be constitutionally disciplined by their schools.
Otherwise, student speech is governed by general free speech principles -- and traditional exceptions.
Symbolic speech such as wearing armbands is protected. The right to freedom of association protects demonstrations, as well as individual speech. Music, art, and theater are fully protected. And speech cannot be censored on the basis that it is "hate speech" or that some find it offensive. Nor can it be censored based on the speaker's viewpoint -- whether it is anti-war, pro-workers' rights, or what have you. Content discrimination, however, is permissible if a court finds that there is a compelling state interest, the restriction is narrowly drawn, and there are still alternative channels for communication. But this strict scrutiny test is very hard for speech-suppressing laws to pass. (Sometimes viewpoint discrimination can also become, in effect, content discrimination; either way, it is unconstitutional.)
Public forums (such as campus lawns and squares) must not only be equally available to all speakers, but are only subject to obscenity and incitement to violence limitations. Non-public forums may impose limitations on speech, but they must be reasonable in light of the purpose the forum serves.
Speech with sexual content, too, is protected -- unless it falls within the category of obscenity. And even speeches advocating violent action are protected, unless they may incite immediate violence.
Even protected speech, however, may be limited by time, place, or manner: A university can say that demonstrations cannot take place at midnight, or that strikers must keep down the volume so that classes can still proceed.
In addition, the First Amendment does not protect defamation, slander, and (to some extent) intentional infliction of emotional distress.
Finally, if a public university advertises to incoming students or prospective faculty its commitment to diversity, academic freedom, or tolerance, it must apply those standards in its rules. If it does not, a student or faculty member may challenge the rule on the basis that the university has misrepresented itself or that it did not live up to its promise.
Targeting Faculty Who Hold Controversial Views
Faculty, too, have found that they may pay an ugly price for speaking freely.
The University of Colorado -- a public institution -- recently issued the results of its investigation of Professor Ward Churchill, who is now facing termination. Churchill's attorney says he is being fired in retaliation for publicly expressing unpopular views about the attack on the World Trade Center shortly after 9/11. But the University claims Churchill plagiarized others work and fabricated historical facts. Attorney Greg Lukianoff, president of the Foundation for Individual Rights in Education (FIRE), stated that "The origin of the investigation into Churchill's work smacked of punishment for free speech, but the committee's condemning report . . . might deflate Churchill's case."
At Brooklyn College of The City University of New York (CUNY), also a public institution, tenured history professor Robert K.C. Johnson published a piece in an academic magazine, "Inside Higher Ed," critiquing what he deemed a new "political litmus test" for graduates of the education program. According to one report, to earn accreditation, the "teacher-preparation programs were evaluated on how well their graduates demonstrate a disposition toward social justice."
In response, the faculty union's "Professional Staff Congress" threatened an investigation by an ominously named "Integrity Committee," and the School of Education issued a letter that, while acknowledging Johnson's right to engage in such criticism, nonetheless insisted he "stop such attacks."
Faculty: Their Free Speech Rights at Public Universities
Faculty members at public universities are public employees -- which means that they may not be fired for speaking out on a matter of "public concern." Indeed, one federal court held that even "[o]ffensive" faculty speech which is "germane to the subject material of the class when advancing a legitimate academic purpose, is always protected by the First Amendment."
Under this standard, Brooklyn College's Johnson should be safe. He spoke out on a matter of public concern.
The case of Ward Churchill is a closer one, but in the end, Churchill too should prevail. As the FIRE has argued, "It is . . . improper to use clearly protected--though controversial--expression as a pretext to begin scouring the public record in hopes of finding examples of public statements that do not enjoy full First Amendment protection." It will chill speech severely if every controversial remark by a professor triggers a fishing expedition through his or her work.
Where Harassment Codes Equal Speech Codes
Under federal law, universities (both public universities and private ones that receive federal funding) may not allow "discriminatory harassment" -- generally, racial or sexual harassment -- on campus. In an attempt to adhere to this requirement, many universities have adopted policies that violate the First Amendment, or the University's own stated commitment to free speech.
The University of Miami's "Harassment or Harm to Others" policy is one that goes much too far. It prohibits:
Any words or acts, whether intentional or a product of the disregard for the safety, rights, or welfare of others, which cause or result in physical or emotional harm to others, or which intimidate, degrade, demean, threaten, haze or otherwise interfere with another person's rightful actions or comfort . . . .
As the FIRE points out, "This policy appears to prohibit almost anything that hurts anyone's feelings, including any words that unintentionally interfere with someone's rightful comfort, whatever that is." FIRE notes also that this policy "directly contradicts university president Donna Shalala's repeated, publicly stated commitments to freedom of speech."
In sum, while constitutional protections are not as clear-cut as many may have thought, in most cases there are grounds for both faculty and students to assert their right to speak out. Those at private universities may have an uphill battle, but they too may be able to make a case.
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