First Amendment Freedom of Speech at Universities and Colleges

FIRST AMENDMENT FREEDOM OF SPEECH RIGHTS AT UNIVERSITY COLLEGE CAMPUSES

INTRODUCTION

Christians and all freedom-loving citizens recognize the importance of the First Amendment of the U.S. Constitution. The First Amendment protects the right of all Americans to express their moral, religious, political, and other convictions and opinions.

Such protection includes the right to make unpopular or offensive statements. Listening to offensive speech is the price we have to pay for protecting our own liberties. Federal, state and local governments may intrude upon this right only in very limited situations. In the “marketplace of ideas”, good and bad ideas compete. The college and university campus are no exception.

Thus, we Americans must allow ideas and opinions to be presented into the "marketplace of ideas." We must allow this even if, sometimes, the words are offensive to listeners...and even if it is perceived by the majority as discriminatory or hateful. Where freedom of speech and religion is hindered, ultimately tyranny infiltrates, “politically incorrect” ideas are silenced, and individual freedom and individual autonomy are substantially reduced.

In Terminiello v. Chicago, 337 U.S. 1 (1949), the United States Supreme Court noted that:

"A function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech . . . is . . . protected against censorship or punishment . . . . There is no room under our Constitution for a more restrictive view." Id. at 4-5 (emphasis added).

"The fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker's opinion that gives offense, that consequence is a reason for according it constitutional protection." Simon & Schuster, Inc. v. Members of New York State Crime Victims Bd., 502 U.S. 105 (1991) (editing marks and citations omitted)."

CURRENT LAW AS OF 2010

On December 22, 2010, the “Foundation for Individual Rights in Education” (FIRE) mailed a certified letter to the presidents and lawyers at 296 public colleges and universities across the nation “that they and their staff should be ready to pay out of their own pockets if they continue to violate their students' free speech rights.” A sample of one such letter written Ohio State University, stated that “one or more of the Ohio State University's policies unconstitutionally restricts freedom of expression, as guaranteed by the First Amendment and defined by established legal precedent…FIRE strongly recommends reforming your institution's policies to ensure compliance with the First Amendment, by which OSU is both legally and morally bound.”

“In the past year, federal courts have again struck down similarly unconstitutional speech codes maintained by public universities, continuing a string of losses for restrictive speech policies dating back over two decades. These recent defeats make clear once more that the First Amendment's protections fully extend to the public university campus…” (Emphasis added).

Citing the “overwhelming consistency of the legal precedent”, the letter charged that the university administration “must know that maintaining and enforcing speech codes that restrict First Amendment rights on campus violates clearly established law.” The letter cited the following cases:

McCauley v. University of the Virgin Islands, 618 F.3d 232 (3d Cir. 2010) (declaring prohibition of "offensive" signs and conduct causing "emotional distress" unconstitutional);

DeJohn v. Temple University, 537 F.3d 301 (3d Cir. 2008) (invalidating university sexual harassment policy due to overbreadth);

Dambrot v. Central Michigan University, 55 F.3d 1177 (6th Cir. 1995) (declaring university discriminatory harassment policy facially unconstitutional);

Smith v. Tarrant County College District, 694 F. Supp. 2d 610 (N.D. Tex. Mar. 15, 2010) (invalidating "cosponsorship" policy due to overbreadth);

College Republicans at San Francisco State University v. Reed, 523 F. Supp. 2d 1005 (N.D. Cal. 2007) (enjoining enforcement of university civility policy);

Roberts v. Haragan, 346 F. Supp. 2d 853 (N.D. Tex. 2004) (finding university sexual harassment policy unconstitutionally overbroad);

Bair v. Shippensburg University, 280 F. Supp. 2d 357 (M.D. Pa. 2003) (enjoining enforcement of university harassment policy due to overbreadth);

Booher v. Board of Regents, 1998 U.S. Dist. LEXIS 11404 (E.D. Ky. Jul. 21, 1998) (finding university sexual harassment policy void for vagueness and overbreadth);

The UWM Post, Incorporated v. Board of Regents of the University of Wisconsin System, 774 F. Supp. 1163 (E.D. Wis. 1991) (declaring university racial and discriminatory harassment policy facially unconstitutional);

Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989) (enjoining enforcement of university discriminatory harassment policy due to unconstitutionality);

Corry v. Leland Stanford Junior University, No. 740309 (Cal. Super. Ct. Feb. 27, 1995) (slip op.) (declaring "harassment by personal vilification" policy unconstitutional).

The letter further related that, the United States Court of Appeals for the Ninth Circuit also issued a resounding affirmation of First Amendment rights on campus in Rodriguez v. Maricopa County Community College District, 605 F.3d 703 (9th Cir. 2010). The appellate court in Rodriguez held that public university administrators acted correctly in declining to punish a university professor for sending e-mails to coworkers that constituted protected speech. Further, the email was not actionable workplace harassment. “In a unanimous opinion written by Chief Judge Alex Kozinski and joined by Circuit Judge Sandra Ikuta and Associate Justice Sandra Day O'Connor (sitting on the panel by designation), the Ninth Circuit determined that Professor Walter Kehowski's e-mails espousing his views on immigration, the ‘superiority of Western Civilization,’ and other contentious issues-however disagreeable to some, most, or even all-were not grounds for punishment because a public university, as a government actor, cannot lawfully punish protected speech.” Chief Judge Kozinski stated that:

“Intellectual advancement has traditionally progressed through discord and dissent, as a diversity of views ensures that ideas survive because they are correct, not because they are popular. Colleges and universities-sheltered from the currents of popular opinion by tradition, geography, tenure and monetary endowments-have historically fostered that exchange. But that role in our society will not survive if certain points of view may be declared beyond the pale.”

The letter summarizes that “[t]aken together, McCauley, Smith, and Rodriguez again send an unequivocal message: Public universities cannot restrict protected speech, whether by harassment policies, free speech zones, civility policies, or other regulatory contrivances. Indeed, the Supreme Court has long recognized that the First Amendment is of special importance on college campuses…[T]he First Amendment rights of speech and association extend to the campuses of state universities." Healy v. James, 408 U.S. 169, 180 (1972) (citation omitted); Widmar v. Vincent, 454 U.S. 263, 268-69 (1981)… "The mere dissemination of ideas-no matter how offensive to good taste-on a state university campus may not be shut off in the name alone of ‘conventions of decency.'" Papish v. Board of Curators of the University of Missouri, 410 U.S. 667, 670 (1973)…”

“Unfortunately, FIRE's research demonstrates that far too many colleges and universities continue to inexplicably defy this broad and unequivocal affirmation of First Amendment rights on campus. A recent FIRE report, Spotlight on Speech Codes 2011: The State of Free Speech on Our Nation's Campuses, discovered that 67 percent of the 286 public universities examined nationwide maintain at least one policy that both clearly and substantially restricts freedom of speech, in contravention of legal precedent.” (Emphasis added).

The letter to OSU further related that “you must be aware that maintaining university policies that prohibit constitutionally protected expression is an unlawful deprivation of constitutional rights under 42 U.S.C.S. § 1983 for which university administrators may be sued in their individual capacities for punitive damages…The Supreme Court has made clear that government agents and employees are offered qualified immunity only "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

In McCauley, the Third Circuit observed that "[m]odern-day public universities are intended to function as marketplaces of ideas, where students interact with each other and with their professors in a collaborative learning environment." McCauley, 618 F.3d at 244.

CORRECTING UNCONSTITUTIONAL POLICIES AT COLLEGE CAMPUSES

Note: FIRE has published a 2009 document entitled Correcting Common Mistakes in Campus Speech Policies Correcting Common Mistakes in Campus Speech Policies. This guide identifies and provides remedies for common prohibitions on protected speech.