The Volokh Conspiracy
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"Statement on Campus Censorship During Nationwide Protests"
From the Foundation for Individual Rights in Education.
Like our fellow Americans, we at FIRE have been gripped by the aftermath of George Floyd's killing in Minneapolis and the subsequent protests and disturbances in our cities. Those engaged in peaceful protest are exercising one of our nation's bedrock civil liberties, with people around the country gathering to protest Floyd's killing and discuss police brutality, racial inequality, and other important issues.
America's colleges are playing host to these same discussions. As a nonpartisan civil liberties organization committed to defending the free speech rights of college students and faculty members, FIRE is here to hold universities accountable to their moral and constitutional obligations, which in times of crisis are at their most, not least, important. Yet during this volatile time, FIRE has already seen a troubling number of institutions abandon these obligations, choosing to investigate and punish controversial speech.
Public universities are government agencies, legally required to uphold the First Amendment rights of students and faculty. While private institutions are usually not similarly bound by law, the vast majority of them promise free expression to students and faculty, and are therefore bound morally and contractually to honor those promises. These guarantees mean nothing, nor will they long endure or be respected, if they protect only those whose opinions happen to be in favor on a particular campus.
George Floyd's death and the subsequent reaction has provoked a wide variety of responses in college communities, including some that many find deeply offensive or that involve the use of racial slurs. But while the level of passion with which these issues have been argued in recent days may have changed, the underlying First Amendment principles have not. The overwhelming majority of such expression, whether it supports or criticizes peaceful protests, police tactics, or violent disturbances, is protected — either by the First Amendment, by universities' own promises of free expression, or both. FIRE will continue to defend speakers' right to exercise their expressive rights regardless of viewpoint. Universities committed to free expression must do so as well.
While college restrictions on speech appear thus far to be broadly aimed at silencing racially offensive or insensitive expression online, views falling on all sides of the current national debate, in a wide variety of situations, have been impacted. Temple University has flatly said it will punish "[s]tudents who share messages of hate." The University of Delaware, Clemson University, Valdosta State University, and Framingham State University have all announced (in some cases multiple) investigations into racially offensive student social media posts. Northwestern University and the University of Alabama at Birmingham are facing calls to punish or fire professors for their seeming support of rioting or property damage. This list is hardly exhaustive.
Already this week, FIRE has written to the Ohio State University condemning the Columbus Division of Police's use of pepper spray on student journalists covering protests adjoining campus, and to Weber State University in Utah for placing a tenured professor on leave over tweets endorsing violence against protestors and a journalist. The rights of students and faculty members to express their opinions regardless of viewpoint must continue to be preserved, and we call on others to join us in holding colleges and universities to account when they fail in their responsibility to do so.
During the political and social upheaval of the late 1960s and early '70s, the Supreme Court firmly protected students' First Amendment rights. In Healy v. James, the court noted the "climate of unrest" that "prevailed on many college campuses in this country," including "widespread civil disobedience" and "the seizure of buildings, vandalism, and arson," leading some colleges to "shut down altogether, while at others files were looted and manuscripts destroyed." Notwithstanding the "acknowledged need for order," the Supreme Court explained that the First Amendment applied with no "less force on college campuses than in the community at large." That obligation continues today.
Even amidst the unprecedented destruction of World War II, when the West Virginia State Board of Education mandated that schoolchildren salute the American flag in an effort to encourage patriotism amidst the war effort, the Supreme Court struck it down. Why? Justice Robert H. Jackson explained on behalf of the court in the landmark decision of West Virginia State Board of Education v. Barnette. His words remain as relevant to our response to today's crises as they were to that of the time:
[F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order… If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.
