The Ten Rules of Free Speech and College Students: Free Speech Rules (Episode 7)

November 7, 2019 0 By Kody Olson


Lots of recent free speech debates have come up in colleges. Here are 10 rules for how the freedom of speech applies to
college students. 1. Students of 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 groups viewpoint. It can’t for instance, deny bulletin board space to groups that spread religious views, anti-homosexuality views, racially offensive parodies, or any other views. 3. This is also true for student-run newspapers unless the college so controls the newspaper that it’s viewed 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 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 judgement 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 the guest speaker in a class, or 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 opportunities 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 shouting 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. So to sum up, students at public colleges may not be disciplined for their speech, a public college can’t limit broadly available benefits based on the group’s viewpoint. That’s also true for student-run newspapers. Inside the classroom, the professor is in charge. Grading of student exams and papers can’t be content-neutral or even viewpoint-neutral. Colleges and college departments can express their own views without giving equal time to others. People have no First Amendment right to shout down speakers, a public college can’t selectively protect some speakers but not others based on viewpoint, content-neutral fees and restrictions are likely constitutional and these rules generally only apply to public colleges, but in California some of them apply to private colleges as well. This is not legal advice if this were legal advice it would be followed by a bill. Please use responsibly. Written by Eugene Bullock who’s an actual real-life First Amendment law professor at UCLA. I’m Eugene Bullock and I approve this message.