Freedom and regulation of speech on our campuses – Status Report
Derek P. Langhauser
One should never agree to write briefly about free speech in the college and university setting. With their essential purpose being to inspire the exchange of new and challenging thoughts, colleges and universities are precisely the marketplaces of ideas that the framers of our Constitution had in mind when they committed the nation to protect both the process and the product of free speech under the First Amendment.
Indeed, there is currently no shortage of issues involving free speech on our campuses: student protests, commercial solicitations, Web-based expression, and student fees, just to name a few.
In judging these shifting contexts and the diverse viewpoints they encompass, we are asked to apply a maze of legal nuances. Nonetheless, it bears recalling that, for those of us who search in good faith for where the lines of constitutionality fall from one matter to the next, there is meaningful stability in the framework of what is generally called the “forum analysis.”
This analysis–which may be helpful to administrators and not just college attorneys–requires identifying the speaker, type of speech, location where the speech will be expressed, and the timing and effect of any restriction on the speech. While this analysis is required as a matter of law for public institutions, it can also serve as guidance for private schools that struggle with the same issues.
The first step is to identify the speaker and determine whether the speech is generally protected under the First Amendment. For example, members of the college community (that is, students and employees) typically have a more secure right to speak than persons from outside that community (like vendors and external interest groups).
There is also a difference between an individual speaking on her own behalf (such as through a leaflet) and an individual seeking to compel the institution to incorporate her speech into the institution’s own speech (for example, through an essay in a college publication), the former having more established rights.
Finally, there is a threshold difference between simple expression and expression that furthers unlawful ends. The latter, which enjoys no First Amendment protection, is that which promotes the imminent prospect of illegal or violent conduct, or which otherwise constitutes defamation, obscenity, pornography, gross disobedience of legitimate rules, false advertising, promotion of religion in violation of the free exercise or establishment clauses of the First Amendment, or the use of public resources to promote partisan political activities in violation of state or federal law.
The next step is to categorize the type of speech, distinguishing political speech from commercial speech. Political speech is comprised of ideas, whereas commercial speech relates to products. While the distinction between these is not always clear (consider, for example, the late Supreme Court Justice William Brennan’s question whether the phrase “Be a Patriot; Buy American Cars” constitutes a political or commercial utterance), the distinction is important because, in a democracy, products are not as constitutionally significant as ideas. Accordingly, colleges have greater authority to regulate commercial speech than political speech.
The next step is to define the scope of the location, or “forum” as the courts call it, that the speaker intends to use, and determine whether that location is public or non-public. If a speaker seeks general access to a piece of property, such as a building, then that building is the relevant forum. If a speaker seeks more limited access, such as to a bulletin board inside of a building, then that bulletin board is the relevant forum.
Regarding the public or private nature of a forum, there are two types of public forums. ‘Traditional” public forums are areas, like a sidewalk or a quadrangle, where colleges have typically permitted broad expression. “Designated” public forums are more limited areas, such as an auditorium or lobby, that a college has specifically designated for either open expression or expression limited to certain groups (either internal and/or external) on certain subjects (like commercial and/or political expression). By contrast, non-public forums are those areas, such as offices, where public speech has typically not been permitted because it is incompatible with the legitimate operations of that area.
Distinguishing a public from a non-public forum is not always easy, and it requires a close examination of the forum’s purpose and nature. A forum may have one or several purposes (such as, educational, administrative, governmental, and/or commercial), and, if it has several, a college may give certain types of speech priority over others. Speech that would disrupt, interfere, threaten, or otherwise be incompatible with the purpose of a forum is not protected.
As regards the nature of a forum, one should examine the college’s intent, policy, and practices in recognizing and using that forum. Specifically, courts examine the stated purpose of any written policy and the consistency with which it has been enforced. Courts are suspicious of post-hoc policy formulations and selective enforcement of an otherwise inoperative policy.
Consequently, courts examine whether access to the forum is objectively controlled–that is, who determines which speech, if any, is permitted; the standards used to determine which speech is permitted; and whether a fee for access is charged. Finally, courts ask whether there is, in addition to the restricted forum, an alternative public forum in which the speech can be effectively expressed. Such availability enhances a college’s argument that a disputed forum is non-public and, therefore, subject to more limitations.
The last steps in analysis turn to the timing and effect of any restriction on speech. Regarding timing, restrictions can either restrain a speaker before he acts, or punish him afterward. Generally speaking, colleges have less authority to issue prior restraints (such as denying a permit) and more authority to issue post-speech penalties (for example, suspending a student).
Regarding the effect of a restriction, it is crucial to distinguish those restrictions that limit the content of the speech (that is, the idea itself) from those that simply limit the circumstances in which the speech is expressed (such as the time, manner, and place of the expression). Colleges retain in all forums–public and non-public–the authority to regulate the location, duration, and volume of the speech regardless of its content if the restrictions protect an important and legitimate administrative or pedagogical interest; if the restrictions minimize, where practicable, intrusion into the speaker’s opportunity to express content; and if they are evenly applied to all speakers.
A college, however, must exercise great care in all forums when it restricts speech because of its content. In any public forum, a college may restrict speech because of its content only by proving that the restriction is necessary to serve a compelling interest, and that the restriction is narrowly drawn to achieve that interest.
This is a very difficult test to pass (because a threat of violence must indeed be imminent). Note, however, that in nonpublic forums, a college may restrict speech because of its content by proving that the restriction is reasonable. Reasonableness is assessed in light of the purpose and nature of the forum and all surrounding circumstances. This is often an easier test to pass (such as removing students who “sit in” at the president’s office).
In many instances, the right of free expression is, as it should be, broadly protected. The right, however, is not absolute. Indeed, courts balance this right against the many legitimate and important administrative and pedagogical interests of a college. By designating reasonably, clearly, and consistently which speech is permitted in what locations, colleges and universities can comply with the Constitution, meet their diverse administrative needs, and honor their legacy of meaningful ideological exchange.
Derek P. Langhauser is general counsel of Maine’s public two-year college system.
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