BACK TO SCHOOL: What You Should Know About Political Speech on Campus

You’re back on campus (or will be soon) and the 2016 election season is kicking into high gear. Many of you are probably excited and ready to debate election issues or convince your peers of your favorite candidate’s virtues. Some of you may want to campaign for your candidate. One of the most obvious places you’ll engage in political speech this fall is on your campus—where you live, learn, and interact with hundreds of other young adults.

Some of you will be surprised to find that your college is not as excited as you are about political speech on campus, particularly campaign-related speech.

Every election season, FIRE hears from students who are told they can’t engage in partisan political speech or activity on campus. The examples are many and varied. Some students aren’t allowed to start a club to support a candidate. An already-existing club like the College Democrats is told it can’t reserve space on campus to hold a “Support Hillary” event. A student is told she can’t hang political flyers on her dorm room door. The list goes on.

As part of our Back to School series, today we want to highlight a resource to help you push back against suppression of political speech. FIRE’s Policy Statement on Political Speech on Campus gives background on the speech rights you enjoy in your college community and the kind of political engagement colleges can and should allow to flourish.

Here are some of the main takeaways from our Policy Statement on students’ political speech on campus:

• Students at public colleges and universities enjoy the full protection of the First Amendment. It is a core purpose of the First Amendment to protect political speech from official censorship. As the Supreme Court of the United States has written, “Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs.” Mills v. Alabama, 384 U.S. 214, 218 (1966).
• Students at private colleges and universities are entitled to the freedoms of expression and association that the school promises in its handbooks, policies, and promotional materials. The overwhelming majority of private institutions make such promises and publicly advertise themselves as communities where free speech is valued and protected. These schools have an obligation to live up to the commitments they made to their students. If you’re promised free speech, your school should not be able to make an exception for election season.
• Student groups and organizations are generally afforded the same rights of speech and association as individuals. They should not be denied access to funding or university resources available to other student organizations because they take a partisan political position. Indeed, the Supreme Court has made clear that when a public university denies student activity fee funding that’s available to a multiplicity of student organizations based on a group’s message or ideology, it’s engaged in viewpoint discrimination that violates the First Amendment. Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819, 834 (1995).
• One of the most common reasons colleges give for censoring political speech is that their status as a tax-exempt nonprofit requires them to remain politically neutral. Most colleges and universities operate as nonprofit institutions and are granted an exemption from paying federal taxes by the Internal Revenue Service (IRS). In order to keep that privilege, they have to follow certain IRS regulations, including the rule that the institution can’t get involved in political campaigns.
  • However, IRS guidance makes clear that students and student organizations are not presumed to speak for the institution. This means that the rule against intervening in a campaign applies to the school itself, not its students. Unless students or student groups claim to speak for the school, or there’s reason to think the school is directing their campaign activity, they are presumed to express their own opinions.
  • Despite this, tax-exempt status is a big deal and many schools are very touchy about it, trying to steer far clear of anything that looks or smells like campaign activity. Some ban partisan activity altogether. Some refuse to give official recognition to partisan organizations, or to let them receive funding, reserve space, or use any campus resources. These approaches unfairly burden political speech and political organizations, restricting them from access to forums and resources for communication that non-political students and groups enjoy. If your school stops you from communicating about a candidate on campus because it has to stay neutral, seriously consider pushing back on that reasoning and reaching out to FIRE for help.

Political speech is a vital component of democratic participation and a particular concern of the the First Amendment. Colleges and universities have a responsibility to facilitate their students’ engagement, education, and growth as members of a democratic society. When they instead shy away from robust political participation because such an approach is safer or easier for the institution, students should demand the full exercise of their rights, reminding schools of the unique role of higher education in fostering forums of debate and discussion.