The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Emory University's Open Expression Committee—an official university body—has just issued another opinion interpreting the Emory open expression policy. (Note that my brother and co-blogger, Sasha Volokh, a professor at Emory Law School, is the chair of the committee.) The opinion has no formal precedential value, as I understand it, but I suspect that in practice it will be quite influential. An excerpt:
[1.] As we have explained in past opinions, Emory University is a private institution; therefore, the First Amendment of the U.S. Constitution does not bind the University of its own force. However, the University has chosen to adopt the Open Expression Policy, which affirms that "Emory University respects the Constitutional rights of free speech and assembly."
We have recognized on several occasions that the Policy "incorporates at least the same substantive standards that the First Amendment imposes on public universities." As a result, the Emory Community—a category that includes faculty, students, staff, and others—has at least the same rights as the communities of the University of Georgia or Georgia State University." Indeed, "[i]n some ways, the Policy provides broader support for open expression than the First Amendment compels at public universities": in particular, the Policy commits the University to take "affirmative steps to encourage protest and dissent." …In this case, First Amendment caselaw is especially useful, because it gives a name (and a framework for analysis) to forums like [university-supplied chalkboards that are open for student chalking] or University-created Facebook groups and pages: "limited public forums," or forums "created for a limited purpose such as use by certain groups … or for the discussion of certain subjects." The term "limited public forum" was coined by contrast with "traditional" or "ordinary" public forums, like sidewalks and parks, which are presumptively open to the entire public for purposes that are not limited ahead of time…. Limited public forums … may include physical spaces like chalkboards or the use of University spaces by student organizations, but they may also include virtual spaces like pages on social media, or even more "metaphysical" forums like a Student Activities Fund created "to support a broad range of extracurricular student activities."
It is clear from courts' discussion of limited public forums that the government—and thus the University in the context of the Open Expression Policy—has broad discretion as to whether and how to allow public expression in such forum, precisely because these limited public forums are set up for limited purposes…. [T]he restrictions on expression in limited public forums must merely be reasonable and viewpoint-neutral….
[2.] [T]he government is not required to set up a limited public forum at all: it may simply speak for itself. And the same is true of the University, under the Policy. The government, and government officials, may speak out and argue in favor of their own views of sound policy (that is, after all, why we elect politicians). Similarly, the "Emory University Community"—the set of people who have rights and responsibilities under the Open Expression Policy—includes all University students, faculty, staff, trustees, and Board members, and therefore includes anybody at Emory with any decisionmaking authority. President Sterk has the same right to chalk a message as any undergraduate student, and similarly, the decisionmakers of the University may issue statements and spend University funds and resources to convey a particular message.
The University, through its employees and other agents, and acting through any of its subdivisions, may thus affirm its support for undocumented students or transgender students or a particular vision of sustainability or gender equity, or may speak out against "[s]upremacist ideology," without providing equal support to the contrary position, though of course it may not ordinarily prevent Community members from expressing contrary (even offensive) positions on these matters.
The government, and the University, may also solicit a wide variety of views, then choose which views to print. This is likewise government (or University) speech, provided it is clear from the context that the message is that of the government (or University), which has purposely selected particular views that it favors. For instance, Emory Law School's International Humanitarian Law Clinic posts videos of student testimonials on its website, and Laney Graduate School likewise posts the text of student testimonials about its Population Biology, Ecology, and Evolution Graduate Program. These sites do not give equal time to negative testimonials, nor do they print all testimonials indiscriminately. Everybody understands that the sites, including the decision of which testimonials to include, are the University's own speech, and that the content is selected to support the University's chosen message.
Like government under the First Amendment, the University may also, consistent with the Policy, select "private speakers … for a government program to assist [it] in advancing a particular message." Thus, the University's Support & Opportunities for Latin@s (SOL) program affirms particular values to the exclusion of others, and chooses student leaders (SOL Managers, SOL Coordinators, and an SOL SQUAD of student volunteers) to help it implement its vision. Most obviously, because the University is an abstract entity, the primary way it speaks is by hiring employees and paying them with University funds to speak on its behalf. None of this activity offends the Open Expression Policy, since it can be characterized as the University's own speech, which is not required to be neutral as between different viewpoints.
[3.] If—instead of, or in addition to, speaking for itself—the government (or the University) does decide to establish a limited public forum where Community input is invited, it "may restrict access to 'certain groups' or to 'discussion of certain topics,'" provided those restrictions are "reasonable and viewpoint neutral." Neutrality as between different viewpoints is one of the foremost requirements that the First Amendment imposes on government and that the Open Expression Policy imposes on the University. Then, once the government (or the University) has established the limited public forum, it "must respect the lawful boundaries it has itself set," and "'viewpoint discrimination' is forbidden."
Thus, for instance, an Emory Integrity Project chalkboard may announce that it is soliciting opinions on refusing to stand during the national anthem. Then, those in charge of the chalkboard may erase unrelated or nonresponsive comments, such as statements about Harambe or other opinions that do not relate to the national anthem, and may even curate the content in other (viewpoint-neutral) ways, such as by erasing comments after a certain time, erasing comments that are duplicative to allow more space on the chalkboard for other comments, or erasing comments that fall below a (viewpoint-neutral) level of quality.
The restrictions on the University are not onerous: the prompt must be viewpoint neutral, and the University must respect the limitation contained within the prompt—i.e., it may not selectively erase comments that take a view that the University does not favor.
[4.] The University may express itself directly in many different ways. It may speak through its employees or other agents. It may solicit private views, such as testimonials, and print the ones that it likes in a way that makes it clear that the choice of what to print is the University's. It may select private speakers for its own programs. It has broad discretion in choosing what messages (if any) to convey and how to convey these messages.
But if the University chooses to create a "limited public forum," where community input is invited but participation is limited to select groups or particular subject matters, it must make clear what participation and subject-matter restrictions it is imposing on the forum. The requirements that the Open Expression Policy imposes on the University are not onerous: the restrictions on the forum, which must be clearly expressed, must merely be reasonable and viewpoint-neutral. The University may then choose to erase comments, as long as they fall outside this defined purpose, taking care to do so even-handedly and keep within the purposes that it has defined beforehand.