Free Speech

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

Episode 7 of Free Speech Rules, from UCLA law professor Eugene Volokh

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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/

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  1. If hating stoopid Ewoks is wrong… well, it just isn’t.

    1. It’s all good, just as long as students understand rule number 11: inappropriate pasquinades, including “parodies” of distinguished members of the academic community, will not be tolerated on our college campuses. See the documentation of our nation’s leading criminal “satire” case at:

      https://raphaelgolbtrial.wordpress.com/

      1. Still hoping A-1 doesn’t apply there? Hint; it does. Quit whining.

        1. Still hoping “A-1” protects criminal speech? Here at NYU we like to keep up with the actual state of American law, which now requires that “parodies” be either explicitly declared or at least so obvious as to be understood as such in order to qualify for protection. But this is of course besides the point: “A-1” doesn’t apply on most of our college campuses at all, and it certainly doesn’t apply here at NYU, because we are a private institution. We, not any “constitution,” make the law here, and we enforce it too, and will not hesitate to take appropriate action where needed.

  2. >>and tell students that certain views—say, that the Earth is 6,000 years old—are wrong

    the sentence didn’t require this bias to prove the point.

  3. 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

    Indeed, GMU would appear to condone such behavior (and the ruling) in its own mission statement: George Mason University is committed to promoting a culturally and racially diverse student body . . . . Education here is not limited to the classroom.

  4. This is dumb. #6 rather obviously and fundamentally voids the other 9 and is pretty much the reason we are where we are today. Universities aren’t silencing the speech of dissenters, they’re fostering a set of safe and diverse views that is unique to their campus (and highly analogous to those of other campuses).

    1. You need to read them all again; #6 is very specific and does not void any of the others.

      1. #6 is very specific

        No, it’s not. If No. 6 conflicts with (e.g.) No. 1, there’s nothing indicating which rule supersedes the other and nuanced interpretations like “He wasn’t disciplined, he was dismissed.” are well within the bounds of both rules. This set of rules isn’t obviously superior to anything we have already in place and that’s before any distortion a top down ‘Dear Colleagues’ letters might imbue.

        It’s pretty plainly trying to have your cake and eating it too; either the students are going to have unfettered free speech or the university is going to have unfettered free speech, not both.

      2. You need to read them all again

        OK, it’s not that the rules aren’t clear it’s that I got caught up in the is/ought nature of the article, this article is really a nothingburger. It’s not a formalization of some sort of campus free speech ideal (an ought) *or* a formal elucidation of the current state of free speech. It’s an off-hand unofficial/not-legally-binding overview of the current state of campus free speech. A current state that could change with any given SCOTUS ruling or Dear Colleagues letter.

        What I said is true as the current state of affairs and doesn’t conflict with the ‘is’ nature of the article.

    2. Speech isn’t free when “views” must be specific and are “kept safe” from diversity.

  5. The federal government uses federal grants and loans to bully private colleges into, for instance, adhering to a Dear Colleague letter from the Department of [Mis]Education, so why can’t that same money be used to require private colleges (other than Hillsdale and a few others) from abiding by the 2nd amendment?

  6. So how about when the Professor (or the school) creates an online “student open discussion board”, which is not used for classwork, but is restricted to use by the particular class, then takes action against a student for what he posts there?

  7. Let me explain why free speech is important.

    Civilization is based on ethics and morality which are in turn based on truth, reality.

    This is how we define these words, and how they have meaning. Our civilization depends on it.

    Corrupt people don’t like civilization. A common tactic is to change the definition of words to undermine their meaning and relationship with ethics and morality.

    Without the freedom to support reality, freedom of speech, we lose the ability to strive for civilization.

    of the population today wants to punish anyone for sharing the evidence of the reality that the holocaust never occurred. People are in prison all over Europe for doing just that.

    If you support that, you don’t support free speech or civilization. You support forcing a false narrative onto everyone. You will have to censor truth, reality or try to make those words meaningless. You will have to use force.

    You will also find though that it is human nature to find the meaning, truth of our reality. To obtain justice people will rise up against you, using force.

    To avoid anarchy and violence, civilized intelligent people recognized the need for A constitutional right of free speech to share the truth, reality which all honest rational people must agree with.

    1. Rob Misek
      November.4.2019 at 5:45 pm
      “Let me explain why free speech is important.
      Civilization is based on ethics and morality which are in turn based on truth, reality….”

      Still with the jooze, you scumbag bigot?

    2. BTW, the holocaust was a crime of the Nazis and scumbag bigots arguing that they were just ‘delosing’ people, regardless of witless Euro controls on speech and claims by bigots like you.
      You, you pathetic piece of shit, are one very good reason there should be no limits on speech. Your lies have been shown to be lies many times, but you get to claim victimhood for reasons of Euro-trash bullshit.

      1. Whenever the topic is free speech, the false holocaust narrative supported only by censorship and coercion is relevant.

        I have provided and will continue to do so, on several occasions, research evidence that refutes the false holocaust narrative and by my count, nobody here has refuted it.

        You have the freedom to provide the links here and now to demonstrate otherwise. Your refusal to do so only demonstrates your own intention to lie.

        Much of the evidence that refutes the false holocaust narrative has been exquisitely compiled in Nickolas Kollerstroms book “Breaking the Spell, The Holocaust, myth and reality”. People who value truth and reality, should read it.

        http://www.goodreads.com/book/show/23629458-breaking-the-spell

  8. Check here TNCOOPSRB Assistant Syllabus, Solved Paper 2019, Current affairs of National & International Happenings, Important dates & memories, National & International Current Events and more on Seelatest.com

  9. I’d believe that our domestic Conservatives are sincere in their whining about Free Speech being under attack IF they also advocated for their Conservative competitors in ISIL/Daesh to also be allowed to use social media and/or recruit on college campuses without harassment.

    We should we give those in America who support a vile evil murderous pro pollution ideology a break, because White privilege?

    1. Free speech can expose all lies. That’s why it is under attack.

      If you value recognizing reality, truth, you must be willing to accept it even when it contradicts your cherished false narratives.

      If not, you are living in delusion for any number of irrational reasons and should not be taken seriously by anyone.

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