By David L. Hudson, First Amendment Scholar
Updated March 2018
Free speech at public universities and colleges is at once the most obvious and the most paradoxical of constitutional principles. It is obvious because given the nature of academic inquiry, only an open, robust and critical environment for speech will support the quest for truth. At the same time, universities are at once communities that must balance the requirements of free speech with issues of civility, respect and human dignity. They are also part and parcel of the larger social order with its own, often competing set of values.
Public universities are particularly rich grounds for conflict over matters of speech. They bring together persons with often strongly held yet contradictory views. Universities, for example, have their own newspapers, some of which may be operated by the university, by the students or by an off-campus group. Public institutions in their diversity often have students and faculty of different political persuasions, sexual orientations and religious commitments. Moreover, one of the driving concepts of the university campus is academic freedom, the right to inquire broadly, to question and to promote an environment where wrong answers, seemingly absurd ideas and unconventional thought are not just permitted but even encouraged.
As Robert M. O’Neil, a former university president and expert on First Amendment issues, wrote in his book Free Speech in the College Community,the fate of free speech on public campuses became increasingly important, considerably more controversial, and generally more supportive of openness over the course of the 20th century. In recent times the most contentious issues have involved the development of so-called speech codes designed to restrict certain kinds of speech deemed by the administration to be offensive.
But the issue of free expression on campus goes beyond speech codes and involves a host of other matters. They include outspoken university faculty; technologically mediated discussions that, through the internet, transcend the requirements of time and place so essential to traditional First Amendment analysis; visiting speakers expressing controversial views; the use of student fees to support gay, lesbian and other organizations; the reporting and editorializing of the campus newspaper; artistic expression; and the faculty’s freedom to pursue, publish and proclaim their research findings. In each of these instances, the underlying issue for a university is its duty to teach its students the lessons of responsibility that accompany the privilege of academic freedom.
The concept of academic freedom and its connection to freedom of expression received full treatment in the landmark 1957 decision Sweezy v. New Hampshire. In that case, the attorney general of New Hampshire, acting on behalf of the state Legislature under a broad resolution directing him to determine whether there were “subversive persons” working for the state, had charged Paul Sweezy, a visiting lecturer at the University of New Hampshire, with failing to answer questions. The questions were about whether he had delivered a lecture with leftist contents at the university and about his knowledge of the Progressive Party of the state and its members. Sweezy refused to answer those questions, on the grounds that doing so would violate his rights under the First Amendment and the freedom that it provided him to engage in academic pursuits.
In 1957 the U.S. Supreme Court, in a plurality opinion by Chief Justice Earl Warren, held in Sweezy’s favor and in so doing authored a ringing endorsement of academic freedom. “The essentiality of freedom in the community of American universities is almost self-evident. … Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding, otherwise our civilization will stagnate and die.” In recent times, however, this broad statement in support of academic freedom has come under increasing attack, and ironically that attack has come from the liberal side of the political spectrum that the Supreme Court sought to protect in Sweezy.
Despite that seemingly ringing declaration, the justices have failed to define the exact nature and scope of academic freedom. They have also failed to develop a real constitutional theory to support it. Generally, the concept, as applied to public universities, is rooted in the First Amendment’s concern with free inquiry and promotion of heterodox views that critically examine conventional wisdom.
As with related areas of First Amendment jurisprudence, the justices have subscribed to the view that truth is discovered in the marketplace of ideas, culled from a cacophony of diverse views. Indeed, the Court has referred interchangeably to academic freedom and the right to political expression. The Court, however, has imposed certain limitations upon academic freedom, because employees of academic institutions are treated almost identically to all other public employees. Although the Court has not directly limited academic freedom through the public-employee doctrine, it has constricted the rights of faculty at public institutions. According to case law, speech on matters of public concern is constitutionally protected, while speech on internal institutional matters is entitled to considerably less protection. The justices have accepted that a university has a legitimate need to maintain orderly operations and to regulate its own affairs, and that its duty to do so may outweigh the employee’s free-speech interests. Furthermore, the Court has concluded expressly that academic freedom protects neither intimidating acts, actual threats nor disruptive acts interfering with an educational program.
Speech codes have emerged from this constitutional milieu. They are the most controversial ways in which universities have attempted to strike a balance between expression and community order. Many major universities have introduced these codes to deal especially with so-called hate speech; that is, utterances that have as their object groups and individuals that are identified on the basis of race, ethnicity, gender or sexual orientation.
Beginning in the 1980s, a variety of studies, including one by the Carnegie Foundation for the Advancement of Teaching titled “Campus Tensions,” highlighted instances of racial hatred and harassment directed at racial minorities. Over the past two decades the harassment has grown to include gays and lesbians, women and members of other ethnic groups. On several campuses white students have worn blackface for sorority and fraternity parties. On one campus a flier was distributed that warned: “The Knights of the Ku Klux Klan Are Watching You.”
Many campuses responded to such actions by adopting policies that officially banned such expression and made those found guilty of engaging in it susceptible to punishments ranging from reprimands to expulsion. The idea, of course, was to chill the environment for such expression by punishing various forms of speech based on either content or viewpoint. These codes found strong support from some administrators, faculty and students who were convinced that by controlling speech it would be possible to improve the climate for racial and other minorities. The assumption behind the codes was that limiting harassment on campus would spare the would-be victims of hate speech psychological, emotional and even physical damage. The supporters of such codes also argued that they represented good educational policy, insisting that such bans meant that the learning process on campus would not be disrupted and that the concept of rational discourse, as opposed to hate-inspired invective and epithet, would be enshrined.
In developing these codes, university administrators relied on a well-known Supreme Court doctrine — i.e., the “fighting words” exception developed in the 1942 decision Chaplinsky v. New Hampshire. Justice Frank Murphy, writing for a unanimous court, found that Walter Chaplinsky had been appropriately convicted under a New Hampshire law against offensive and derisive speech and name-calling in public. Murphy developed a two-tier approach to the First Amendment. Certain “well-defined and narrowly limited” categories of speech fall outside the bounds of constitutional protection. Thus, “the lewd and obscene, the profane, the libelous,” and insulting or “fighting” words neither contributed to the expression of ideas nor possessed any “social value” in searching for truth.
While the Supreme Court has moved away from the somewhat stark formation given the fighting-words doctrine by Justice Murphy, lower courts have continued to invoke it. More important, universities have latched on to it as a device by which to constitutionalize their speech codes. The University of California in 1989, for example, invoked the fighting-words doctrine specifically, and other institutions of higher learning have done the same. Some institutions have recognized that the protean and somewhat vague nature of the fighting-words doctrine had to be focused. In 1990 the University of Texas developed a speech code that placed emphasis on the intent of the speaker to engage in harassment and on evidence that the effort to do so had caused real harm. Still other institutions, most notably the University of Michigan, attempted to link their speech codes to existing policies dealing with non-discrimination and equal opportunity. That tactic aimed to make purportedly offensive speech unacceptable because it had the consequence of producing discriminatory behavior.
These codes frequently became parodies of themselves and even the subject of satirical skits on late-night television programs such as “Saturday Night Live.” As Robert O’Neil points out, perhaps the most notable example came from the University of Connecticut. Its policy, which was struck down by a federal court, went so far as to make “inappropriately directed laughter” and “conspicuous exclusion from conversations and/or classroom discussions” violations of its speech policy.
The Connecticut example, however, raises a far more disquieting issue. The erection of these codes in the late 1980s and the early 1990s was done, at least in part, in response to dogged pressures brought by groups determined to use the authority of the university to eliminate harassment and discrimination while pressing their own causes. As former university president Sheldon Hackney has observed: “[I]n this kind of argument, one is either right or wrong, for them or against them, a winner or a loser. Real answers are the casualties of such drive-by debate. This may be good entertainment, but it … only reinforces lines of division and does not build toward agreement.”
As so-called political correctness ignited a nationwide debate about what universities could and should restrict, many liberals found themselves in the awkward position of supporting the very limitations on expression that they had fought against during and after the great McCarthy Red Scare of the 1950s and 1960s, and campuses divided into camps for and against. Moreover, states during these years also adopted bans on speakers, most notably those associated with the Communist Party. Hence, a new and left-wing form of political oppression seemed to be replacing an older, right-wing one, with the same effect: The views and voices of some were curtailed.
Speech codes are vulnerable in several ways and many have been struck down on constitutional grounds. Courts have viewed the codes as failing on two important points. First, they have been deemed to be overly broad and vague, reaching groups and persons not appropriately covered by such codes. In 1989, for example, a federal judge in Doe v. The University of Michigan, threw out the university’s code because it was overly vague when it proscribed language “that stigmatizes or victimizes an individual.” The guidebook that went along with enforcing the code, the judge found, included a provision that restricted speech that might prompt someone to laugh at a joke about a fellow student in class who stuttered. Such speech would have been protected off campus and, therefore, it could not be excluded on campus, the judge found. Moreover, the same judge found that comments made by a social-work student to the effect that homosexuality was a disease should not have been punished. “[T]he university,” the judge wrote, “considered serious comments in the context of the classroom discussion to be sanctionable under the policy.” As such, the court condemned the university’s policy as vague and potentially without limitation in its impact on members of the academic community.
Second, and related to the issue of vagueness, the speech codes have been attacked successfully because they involve a regulation of either the content or viewpoint, not just its time, place and manner. While advocates of speech codes argued that they were essentially content neutral and protected by the fighting-words doctrine, federal judges found otherwise. In the case of the University of Wisconsin code, a federal judge in the 1991 case of UWM Post v. Board of Regents, held that the fighting-words doctrine had little value as a guide, since the code pronounced the utterance of certain kinds of speech unacceptable even if they were unlikely to result in a breach of the peace. In fact, such codes were meant specifically to exclude certain kinds of content in speech. These codes prevented a speaker from ever having a chance to convince the listener of the correctness of his or her positions, since the words to do so could never be uttered or written.
In many ways the Supreme Court dealt speech codes a seemingly devastating blow in its 1992 decision R.A.V. v. City of St. Paul. Though the case dealt with a St. Paul, Minn., ordinance that made it a crime, among other things, to place “on public or private property a … burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender,” it also had broad implications for universities. The unanimous Court held the ordinance unconstitutional on the grounds that it sought to ban speech based on content. The effect of the decision was to slow but not altogether end the use of bans on hate speech, either on or off campus.
Yet just because federal courts, both high and low, have severely restricted speech codes, it does not follow that the universities have altogether complied.
As John B. Gould reports in his ground-breaking study, “The Precedent That Wasn’t: College Hate Speech Codes and the Two Faces of Legal Compliance,” college hate-speech codes are far from dead. His careful analysis of codes enacted between 1992 and 1997 demonstrates that hate-speech policies not only persist, but have also actually increased in number despite court decisions striking them down. By 1997 the percentage of schools with speech policies had actually jumped 11% from 1992, Gould found, and, while policies against verbal harassment of minorities had dropped 3%, those covering other kinds of offensive speech had tripled. As Gould notes, this apparent contradiction — between judicial precedent on one hand and collegiate action on the other — is hardly surprising to students of judicial impact, but it does highlight the tenacious efforts by advocates of speech codes to continue to use institutional authority to limit speech.
The matter of the legal standing of such codes, however, can obscure the larger issue of whether they should exist at all. Of course, expression on a campus is not a free-for-all; there are limits. There are clearly forms of expression associated with conduct that can be banned, including fighting words, libel, falsification of research findings, plagiarism and cheating. In these instances, as O’Neil notes, the limitation placed on expression is not a matter of the speaker’s viewpoint or message. Universities, he warns, need to be wary of picking and choosing which speech they will and will not support — and in so doing protecting some groups by curbing the speech of others. Moreover, most university speech codes have been condemned by the American Civil Liberties Union, although the ACLU has also insisted that universities can draft disciplinary codes that are narrowly tailored to prevent and punish such behavior as intimidating phone calls, threats of attack, and extortion. However, speech that merely creates an unpleasant learning environment is not, according to the ACLU, susceptible to being regulated. That position has been generally adopted by the federal courts.
Some colleges and universities created free-speech zones for protestors and others who wish to exercise their free-speech rights. While the idea of free-speech zones doesn’t, on its face, sound bad, the reality is that some universities use the concept of zoning speech to relegating and dispersing speech that they wish to muffle. In other words, the free-speech zones are used as a method of speech control. The Foundation for Individual Rights in Education (FIRE) has challenged many of these free-speech zone policies, convincing either university leaders or courts that these zones must not be used as a way to censor speech.
Still others argue that the concept of zoning speech itself is flawed. The idea is that the entire university should be a free-speech zone. However, courts recognize that outside speakers if too loud or disruptive can impact negatively the learning process inside college classrooms.
A related problem on college and university campuses concerns the shutting down of controversial speakers. The point of a college and university is to serve as a marketplace of ideas, to give students, faculty, staff, and others the opportunity to hear different points of views. However, many controversial speakers have been disinvited, disrupted, or otherwise prohibited from conveying their speeches. This raises the problem of the “heckler’s veto.”
In recent years, new threats to speech have emerged on some college and university campuses. Erwin Chemerinsky and Howard Gilman in their new book Free Speech on Campus refer to this as “New Censorship.” They include the concepts of safe spaces, trigger warnings, and micro-aggressions. Safe spaces can refer to university policies that shield students from uncomfortable or unwanted ideas. This concept of safe spaces is dangerous to free speech, because the purpose of higher education is to expose students to different and challenging ideas.
Trigger warnings refer to professors telling students in class before discussing concepts that may be upsetting to certain students. The idea behind trigger warnings is to ensure an inclusive learning environment for students. Whether trigger warnings violate the First Amendment depends on whether a public college or university mandates that college professors issue trigger warnings. Administrators mandating trigger warnings would present compelled speech issues and might violate academic freedom. Giving professors the option of giving trigger warnings seems much more reasonable.
Finally, microaggressions refer to slights, petty insults, and comments that cause at least subtle harm to recipients. Coined by Dr. Chester Pierce in the early 1970s, microaggressions may seem insignificant at first but in the aggregate could lead to problems. However, the concept of microaggressions is worrisome to some First Amendment advocates, because it has limited classroom discussions and applies to much protected speech. As David L. Hudson, Jr. conveyed to a U.S. House Subcommittee in his written testimony: “Self-censorship runs counter to the mission of universities as the quintessential marketplace of ideas. Almost anything could be interpreted as a microaggression by overly sensitive individuals.”
The debate over speech codes reminds us of the ongoing importance of free expression on campus and the often controversial nature of its practice. Universities above all other institutions must welcome a broad range of views and protect speech that has a strong viewpoint or content in its message. New technology, for example, has created novel issues for campuses, with students and faculty using the World Wide Web to communicate disputed ideas, such as that the Holocaust did not occur, that either are offensive to many and arguably wrong, or to provide access to materials such as pornography that some find repulsive.
The list could be extended to other areas as well: the radical speaker, the dissident faculty member, the religious fundamentalist, the artist pressing the boundaries of civility and so on. As thorny and troubling as these issues may be, the history of free expression suggests that these and other matters are not going away; indeed, they are inherent in a free society generally — and especially on a public university campus, bound as it is by the federal and state constitutions. Efforts to restrict the viewpoint or message of anyone on a campus puts the institution at odds with its primary educational mission: to give students the opportunity to sort through opposing ideas.
The First Amendment generally, and freedom of expression in particular, are not absolute concepts, and that is why they are at once so difficult to administer and so essential to a free society and an educated citizenry. Community interests and civility have always to be weighed in the balance. Campuses are in no way obliged to permit speech that poses a threat of imminent danger, lawlessness or the destruction of either public or private property. Campus newspapers are not free to print whatever they want; the law of libel applies to them just as it applies to every other journalistic enterprise. Child pornography is unacceptable, whether on or off the campus. What is criminal away from the campus is criminal on campus. Universities are not islands. They are part of a larger community of values and interests, albeit that they enjoy the special privilege of and responsibility for their academic freedom and the goal of unfettered inquiry that animates it.