5/16/2017
FREE SPEECH AND COLLEGE CAMPUSES
Monday, June 5, 2017, 1:45 p.m. – 2:45 pm.
2017 SCCE Higher Education Compliance Conference
Baltimore, Maryland
Who We Are
• Texie Montoya, JD – Associate Special Counsel, Boise State University
• John McDonald, JD, CCEP – Assistant Director, Institutional Compliance and Ethics, Boise State University
• Chris Jaeger, JD – Ph.D. Student, Department of Psychology & Human Development, Vanderbilt University
Presentation Goals
• Provide brief overview of what is and isn’t protected by the first amendment’s free speech clause.
• Provide framework for analyzing free speech issues on campus.
• Analyze contemporary free speech issues in higher education.
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What is Speech? What does this mean?
History of Free Speech
• Alien and Sedition Acts, slavery debates, immoral speech.
• Due Process Clause of the Fourteenth Amendment (1789) & Gitlow v. New York, 268 U.S. 652 (1925)
• Cohen v. California, 403 U.S. 15 (1971)
History of Free Speech on Campus
• Papish v. Board of Curators of the University of Missouri, 410 U.S. 667 (1973).
• Speech codes, hate speech, free speech zones.
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What Is Not Protected?
• Obscenity – Miller v. California
– Child Pornography – New York v. Ferber
• Fighting Words – Chaplinsky v. New Hampshire
• Incitement – Brandenburg v. Ohio
What Is Not Protected?
• True Threats – Watts v. U.S.
• Defamation (including libel and slander) –
– New York Times Co. v. Sullivan
– Hustler Magazine, Inc. v. Falwell
What about commercial speech?
• Sort of…
• Central Hudson
Test
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Harassment
• Not necessarily protected – if it violates another’s ability to get their education.
• DeJohn v. Temple University (2008).
• Sexual harassment policies/Title IX
• More about “speech codes” in a bit.
Time, Place, and Manner Restrictions
• Not restricting the content of the message or the viewpoint of the speaker, but restricting only when, where, and how the message is made.
• For safety and order.
• Cox v. New Hampshire (1941)
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Time
Place
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Manner
Public Forum Doctrine
• Classification of public property
– Traditional public forum
– Non‐public forum
– Designated public forum
– Limited public forum
Forum Analysis
• Standards of judicial review*
– Strict scrutiny – Intermediate scrutiny – Rational basis • Content/viewpoint – Content – subject matter
– Viewpoint ‐ perspective
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Traditional Public Forum
• Places that, by tradition, have long been used for assembly and public discourse
– Sidewalks
– Streets
– Parks
• Limitations on restrictions
– Strict scrutiny ‐ content and viewpoint restrictions
– Reasonable time, place, and manner restrictions are permissible. Designated Public Forum
• Created when the government intentionally designates and opens a non‐public forum to expressive activity by a class of speakers. – University facilities held open for meetings of student groups
• Limitations on restrictions
– Strict scrutiny ‐ content and viewpoint restrictions
– Reasonable time, place, and manner restrictions are permissible. 7
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Limited Public Forum
• Created when the government designates and opens a non‐
public forum to certain expressive activity (certain groups or certain topics), often temporary. – Forum open to students only
– Forum for election debate
• Limitations on restrictions
– Strict scrutiny ‐ viewpoint restrictions
– Rational basis – content restrictions
– Reasonable time, place, and manner restrictions are permissible. Non‐public Forum
• Government buildings and property that are not by tradition or designation open for public communications, but are dedicated and used for business, education or other dedicated purposes.
– Military bases
– Courthouses – Government offices (public university offices)
• Limitations on restrictions
– Strict scrutiny ‐ viewpoint restrictions
– Rational basis – content restrictions
– Reasonable time, place, and manner restrictions are permissible. 8
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Contemporary Issues
• Campus free speech increasingly in the news
Contemporary Issues
• House Subcommittee on Constitution and Civil Justice recently heard testimony on:
– University speech codes
– Free speech zones and safe spaces
– University discipline of students for off‐campus / online speech
– Speaker disinvitations
– Professors’ rights to free expression
Speech Codes
• Campus regulations that address students’ rights of expression
• Most universities have speech codes
• FIRE Spotlight on Speech Codes
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Free Speech Zones & Safe Spaces
• “Free speech zones” on ~1 in 10 campuses (Apr. 4, 2017 Testimony of Greg Lukianoff.)
• Many require prior approval for use.
• Many recent cases find unconstitutional…
– Forum analysis
– Prior restraint issues
Free Speech Zones & Safe Spaces
• Smith v. Tarrant County College District, N.D. Tex
(2009)
• Cincinnati Chapter of Young Americans for Liberty v. Williams, S.D. Ohio (2012)
• “Constitution cases” – e.g. Hawaii
– Settlements often involve revision of policies to allow free speech / literature distribution in generally‐available areas without pre‐approval.
Free Speech Zones & Safe Spaces
• Safe spaces may infringe on others’ First Amendment rights
– University of Missouri‐Columbia
– Overseas example: Strathclyde
• Forum analysis
• Justifications for restrictions?
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Content Restrictions on Speech
• Well‐developed doctrine for speech restrictions in public K‐
12 schools.
– Some level of protection, West Virginia v. Barnette, 319 U.S. 624 (1943).
– But more limited for fear of disruptions, Tinker v. Des Moines, 393 U.S. 503 (1963); Bethel School District v. Fraser, 478 U.S. 675 (1986)).
– Off‐campus speech can be punished, Fenton v. Stear, 423 F. Supp. 767 (W.D. Pa. 1976).
– Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988): ”reasonably related to pedagogical concerns.”
Content Restrictions on Speech
• K‐12 standards migrating to university cases
– Keefe v. Adams, 840 F.3d 523 (8th Cir. 2015)
• Online private (not school‐sponsored) speech.
• Punishment justified b/c related to pedagogical concerns
• Criticism & potential responses
• Likely next frontiers: – Micro‐aggressions
– Bias response teams
Disinvitations
• Disinvitation by request of students/faculty or on safety/orderliness grounds
• Per FIRE, increasing over last 15 years
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Disinvitations & The Heckler’s Veto
• “Heckler’s Veto” case law
• Peaceful protest vs. speech suppression: balancing rights of speakers, chilled speakers, and would‐be listeners
– Brandeis’ counter‐speech doctrine
– Yale’s Woodward Report
Professors’ Expression
• Pickering‐Connick standard
• Garcetti v. Ceballos, 547 U.S. 410 (2006)
– Kennedy, Souter, & the “academic freedom exception”?
– Lower court fallout
Recurring Themes
• Practically, difficult balancing act.
– Students are increasingly in favor of more restrictive speech policies. (Apr. 4, 2017 Testimony of Greg Lukianoff.)
– But restrictive speech policies can overstep First Amendment boundaries.
• Counter‐speech doctrine as gold standard
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