The extent to which universities regulate free speech on campuses has been an issue of legal debate in recent years.
Are universities allowing enough freedom of expression with the policies they implement?
Universities are committed to supporting academic freedom with open and critical inquiry and at the same time, they have to balance this with issues of human dignity and respect.
Public universities, in particular, often have conflicts over matters of speech because students often have strong and yet contradictory views.
First amendment rights
Public colleges and universities are state institutions and are therefore subject to the First Amendment which protects the right to freedom of speech.
What the First Amendment does not do is protect behavior that crosses the line and creates a hostile environment for some students, subjecting them to threats or harassment.
This is where the legal system comes into play and courts have to examine each case to determine when conduct crosses the line.
Specific campus speech issues
The courts have issued a number of opinions in recent years that relate to various campus initiatives to combat discrimination and promote security.
The Supreme Court found that requiring schools to implement anti-discrimination policies did not violate the First Amendment.
However, some courts have found certain campus harassment policies using words like ‘stigmatize’ or ‘victimize’ to be unconstitutional because they are not specific enough.
The First Amendment prohibits vague or overbroad regulations and policies must be precisely defined and give clear warning of what conduct is prohibited.
Confining speech to designated areas on campus
Some colleges and universities have policies that confine speech to designated areas on campus, sometimes a very restricted area.
One student attending a college that allowed free speech on only .003 percent of the total campus area successfully challenged this in court.
The court recognized the need of the college to avoid disruption on campus. However, it found that allowing such a small area of the campus for free speech was not justified.
The difference between free speech and dangerous words
Universities usually have their own student newspapers and opinions may be expressed by students of different political persuasions, religious commitments and sexual orientations.
Students’ rights include the right to inquire and question as this is essential for academic freedom.
Unconventional thought is often not only permitted but actively encouraged.
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How does the law deal with this freedom of expression in newsletters, on social media etc.?
The courts subscribe to the view that the discovery of truth is culled from many diverse views.
However, the use of words to harass, intimidate, incite violence or invade privacy is subject to punishment under the law.
Speech codes
Introducing speech codes is one of the most controversial ways universities try to strike a balance between preserving order and allowing free expression.
Many major universities have speech codes to deal with ‘hate speech’, or utterances that have as their object individuals are groups identified on the basis of gender, race, sexual orientation, or gender.
Content-based discrimination in a public forum
Various incidents involving controversial speakers on college campuses have meant that university administrators started implementing proactive security measures relating to on-campus speakers.
Many of these measures have been challenged under the First Amendment as all speakers have a right to free speech, whether what they say is controversial or not.
The 20th-century civil rights movement in America saw people from all sectors of society coming together to end legalized racism.
Discrimination based on many characteristics, including race, ended with the Civil Rights Act of 1964, due in part to a speaker like Martin Luther who was able to inspire people with his words.
When Richard Spencer, a white nationalist, held a “Unite the Right” rally in Charlottesville that turned violent, this resulted in various universities not permitting him to hold events on their campuses.
However, one federal court found that without evidence that his speech would incite violence, the refusal to host him amounted to content-based discrimination in a public forum.
A final word
Universities need to create an environment in which students have tolerance and mutual respect and in which all students are able to participate meaningfully without being subject to discrimination.
At the same time, universities must promote academic freedom and scholarship does not flourish in an atmosphere of suspicion and distrust.
Students must remain free to inquire and evaluate in order to gain a new understanding.
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