College and the First Amendment: Free Speech Rules (Episode 7)

Lots of recent free speech debates have come up at colleges. Here are 10 rules for how the freedom of speech applies to college students.

1. Students at public colleges may not be disciplined for their speech (unless it falls into the narrow First Amendment exceptions, such as true threats of criminal attack, or face-to-face personal insults that are likely to start a fight). That's true even if the speech is seen as evil or offensive, whether racist, sexist, religiously bigoted, unpatriotic, supportive of crime, or whatever else. For instance, a federal appeals court held that public university students can't be disciplined for putting on an "ugly woman" skit at a fraternity event, in which one of the students was in blackface.
2. A public college can't limit broadly available benefits based on a group's viewpoint. It can't, for instance, deny bulletin board space to groups that spread religious views, anti-homosexuality views, racially offensive views, or any other views.
3. This is also true for student-run newspapers, unless the college so controls the newspaper that it's seen as being partly the university's own speech.
4. Inside the classroom, though, the professor is in charge. Professors may orchestrate class discussions in a way that they think brings out important ideas and facts and promotes student participation. That means they can cut off students who speak off topic or who insult their classmates. Professors can also ask students to make the best argument for a particular viewpoint, and tell students that certain views—say, that the Earth is 6,000 years old—are wrong. We expect professors to be broad-minded on many issues, and not to unduly block student opinions just because they disagree with those opinions. But the First Amendment doesn't give students a right to speak in the classroom when the professor cuts them off.
5. Grading of student exams and papers, likewise, can't be content-neutral or even viewpoint-neutral. Professors shouldn't grade down students based on mere ideological disagreement, and colleges may forbid outright political discrimination by professors. But grading student work inevitably requires a judgment about the quality of that work. And in many disciplines that will be a subjective judgment, based on more than just objectively determinable facts.
6. Colleges and college departments can express their own views—or can foster a selected set of views—without giving equal time to others. If a history department puts on a conference, for instance, it can choose the panelists based on their viewpoints, even if that means excluding some viewpoints and preferring others.
7. People have no First Amendment right to shout down speakers, whether the speaker is a guest speaker in a class or a speaker invited by a student group. Most speeches at colleges let listeners ask questions, including critical ones, during a Q&A at the end; and there's usually ample room to leaflet or protest on sidewalks outside the building. But it's perfectly constitutional to have content-neutral rules banning interruptions when a speaker has the floor, and that give invited speakers the opportunity to speak without sharing that opportunity with students or others. Indeed, such rules may be necessary to make such speeches and debates possible.
8. A public college has no First Amendment obligation to protect speakers against being shouted down, or even against violence. But it would violate the First Amendment for the college to selectively refuse to protect speakers who express some views, while protecting others.
9. Content-neutral fees and restrictions are likely constitutional, but a public college probably violates student groups' First Amendment rights when it charges high security fees for invited speakers who express controversial views.
10. All this, of course, applies only to public colleges, because the First Amendment only applies to the federal, state, and local governments, not to private organizations (even private nonprofits that get tax exemptions and government subsidies). But many colleges voluntarily promise to uphold student free speech rights, as part of the college's commitment to academic freedom—and as a way of attracting students and donors. And in California, a state statute applies some First Amendment rules to private colleges as well as public ones.

Written by Eugene Volokh, who is a First Amendment law professor at UCLA.
Produced and edited by Austin Bragg, who is not.

This is the seventh episode of Free Speech Rules, a video series on free speech and the law. Volokh is the co-founder of The Volokh Conspiracy, a blog hosted at Reason.com.

This is not legal advice.
If this were legal advice, it would be followed by a bill.
Please use responsibly.

Music: "Lobby Time," by Kevin MacLeod (Incompetech.com)
Licensed under Creative Commons: By Attribution 3.0 License
http://creativecommons.org/licenses/by/3.0/