The Volokh Conspiracy

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Free Speech

Private, Shmivate: Sit-ins, Campouts, and True Threats Are Constitutionally Unprotected at Universities, Whether Private or Public


The Wall Street Journal had an editorial this morning called "Defining Free Speech Down on Campus"; I agree that disruptive protests are unprotected by the First Amendment, but I think the editorial erred in its emphasis.

The editorial begins by arguing that no First Amendment rights to protest on privately owned property:

Universities are supposed to be places where students and faculty can debate politics and other subjects without fear or censure. As the anti-Israel protests spread at Columbia, Yale, Harvard, New York University and elsewhere, however, progressives are claiming that any restriction on the protesters is a violation of free speech.

Under its "state action doctrine," the Supreme Court has ruled that the First Amendment applies to government actions toward citizens. It doesn't apply to private citizens or institutions except in rare instances when they are acting as government agents.

It then moves on, in the third and fourth paragraphs, to further focus on private property, noting that the recent UC Berkeley law school incident related to Dean Erwin Chemerinsky happened on "his property," and that Columbia is "a private university" that "has the right to set its own rules on speech as part of a contract to teach or study at the school."

But the real key to analyzing these incidents, I think, is buried in the second sentence of the seventh paragraph:

Even at a public university, all these rules would constitute reasonable restrictions on the time, place and manner of speech.

There is no First Amendment right to camp out in any university, public or private. Indeed, there is no First Amendment right to camp out even in public parks (see Clark v. CCNV (1984)), and the government's power to limit the use of property used for a public university is even greater than its power as to parks (Widmar v. Vincent (1981)):

A university differs in significant respects for public forums such as streets or parks or even municipal theaters. A university's mission is education, and decisions of this Court have never denied a university's authority to impose reasonable regulations compatible with that mission upon the use of its campus and facilities. We have not held, for example, that a campus must make all of its facilities equally available to students and nonstudents alike, or that a university must grant free access to all of its grounds or buildings.

Likewise, if UC Berkeley had held a law student party in the law school building rather than at Dean Chemerinsky's house, it could have stopped students from using the party as an occasion to orate to the audience (especially with their own sound amplification devices, which the student brought to Chemerinsky's house). See Spears v. Arizona Bd. of Regents (D. Ariz. 2019) (upholding public university's right to stop people from speaking with sound amplification at an on-campus book fair). And of course public as well as private universities may generally restrict "conduct that places another in danger of bodily harm," or "uses words that threaten bodily harm in a situation where there is clear and present danger of such bodily harm" (so long as the threats or similar "physical intimidation" fall within the true threats exception to the First Amendment).

Of course, public universities generally can't restrict speech because it expresses offensive or evil viewpoints. Consider this paragraph from the Wall Street Journal editorial:

Columbia's anti-Israel encampment and protests have included physical intimidation of Jewish students and antisemitic declarations. In October 2023, 100 Columbia professors signed a letter defending students who had flooded the campus in support of Hamas's "military action" on Oct. 7. Columbia has every right to restrict speech or actions that threaten other students.

"Antisemitic declarations" are protected by the First Amendment; if City University of New York professors signed a letter defending students who supported the Hamas attacks—or for that matter defending the Hamas attacks themselves—I think CUNY couldn't discipline the professors consistent with the First Amendment (see Levin v. Harleston (2d Cir. 1992)). Columbia, on the other hand, isn't directly constrained by the First Amendment (though private universities in other states, like other private employers in those states, are indeed constrained by various state laws that protect certain kinds of speech and political activity from employer retaliation).

But, as the editorial notes, Columbia has voluntarily promised to act "consistent with a public institution's obligations under the First Amendment" in setting up any speech restrictions on campus. Many other private universities have done the same. And I think that's good, for the reason given in the opening sentence of the editorial, which is as applicable to private universities as to public ones (perhaps setting aside certain highly ideologically constrained private universities, traditionally the more religious ones, that forthrightly stress the constraints they impose):

Universities are supposed to be places where students and faculty can debate politics and other subjects without fear or censure.

If Columbia were to punish speakers because of their views on, for instance, abortion, affirmative action, immigration, policing, and so on, I take it that many people would agree that this would be bad, and that Columbia—if it wants to be a serious university dedicated to open debate—should voluntarily refrain from such punishments. Indeed, the editorial's condemnation, in its last paragraph, of "years of student and faculty attempts to ban conservative speakers from campus and punish students for alleged micro-aggressions" reinforces my sense that the Journal thinks that universities generally (and not just public universities) should generally protect free speech.

Of course, whether a university is public or private may be relevant in particular contexts; most obviously, a purely First Amendment lawsuit against a private university may fail when a similar suit against a public university may succeed. But when we're discussing the general norms that we should expect at universities with regard to disruptive protests or threats, I think there's little reason to distinguish Columbia, Harvard, and Yale from CUNY, UMass, or UConn.