U.S. campuses have been hotbeds of political and social debate since the colonial era. By the 1960s, rising civil unrest bouyed the Free Speech Movement at the University of California, Berkeley. As protests spread, universities and law enforcement cracked down leading to fatalities in separate incidents at Kent State University and Jackson State University. Today campus protests are once again eliciting an escalated police presence. Both public and private universities are struggling how to balance the free exchange of ideas, but public universities have a legal obligation to protect campus freedom of expression. What does this mean for students, campus free speech and speaker’s right to free speech when it is suppressed by the fear of disruption? For news, analysis, history and legal background read on.  

News & Updates

November 5, 2017: Virginia Tech Grapples With Meaning of Student Free Speech 

Graduate student Mark Daniel Neuhoff posted alleged racist comments on what he thought was a private forum. An undergraduate, Tori Coan, got wind of his statements and led a petition to fire him from his teaching assistant position. Coan and other student protesters even disrupted the “State of the University” speech delivered by Virginia Tech’s president. Now the campus is divided over whose free speech and privacy was violated.

Washington Post>
October 19, 2017: Protests Erupt at Richard Spencer Speech at University of Florida

Taking a cue from clashes at other college campuses, including Berkeley, over controversial speakers, the Governor of Florida declared a state of emergency ahead of white nationalist Richard Spencer’s speech at Gainesville. The Miami Herald gives a play by play of the day.

Miami Herald>
September 26, 2017: Attorney General Sessions Says Freedom of Speech Under Attack on College Campuses

At an invitation-only event at Georgetown University law school, Attorney General Jeff Sessions jumped into the debate over campus speech by stating that the First Amendment had suffered from “political correctness and homogeneous thought” and that “a national recommitment to free speech on campus” was needed. He challenged the audience to think about who decides what can be deemed offensive or acceptable stating,  “The university is about the search for truth, not the imposition of truth by a government censor.” Protestors rallied outside with signs reading, “FREE SPEECH IS NOT HATE SPEECH.”

New York Times> Washington Post>
September 22, 2017: What Berkeley Student Say About Campus Free Speech

The New York Times excerpts students comments on free speech.

The New York Timest>
September 18, 2017: First Amendment on Shaky Ground on College Campuses

In a recent Brookings survey of current undergraduate students at U.S. four-year colleges and universities, researchers found that “Freedom of expression is deeply imperiled on U.S. campuses.” Regarding the recent protests over controversial campus speakers, the survey indicated “a very significant fraction of students, across all categories, believe it is acceptable to silence (by shouting) a speaker they find offensive.” This reflects back on a weak understanding of First Amendment protections. What is to be done? John Villasenor, Nonresident Senior Fellow of Governance Studies, Center for Technology Innovation at Brookings writes, “we can do a better job of giving [students] a fuller explanation of the scope of the First Amendment, and the fact that it protects the expression of offensive views.”

Brookings> Washington Post>
September 12, 2017:  Free Speech Week Expected to Test Berkeley

Last spring, Ann Coulter’s speech at Berkeley was cancelled after concerns that protests would erupt into violence. She plans her return at Berkeley’s “Free Speech” week along with Brietbart editor Steve Bannon and conservative provocateur Milo Yiannopoulos.

Newsweek>
September 10, 2017:  Pepper Spray and Free Speech

As a new semester gets under way at Berkeley, free speech debates and protests that boiled over earlier in the year are expected to continue. This time, ex-Breitbart editor, Ben Shapiro, is causing a stir and Berkeley police are asking to arm themselves with pepper spray to control crowds. “Berkeley has been the focus of an unprecedented effort to be made a battleground for extremist groups,” wrote Police Chief Andrew Greenwood  in a memo to the City Council stating police need help to ensure First Amendment rights are protected. “The availability of pepper spray as a force option to use against specific violent offenders in a crowd situation would allow for more safety for officers and the public, and increase the likelihood of apprehension and criminal prosecution of suspects, while reducing the potential for injuries to suspects and officers.”

NBC>
September 11, 2017:  UC Berkeley Faculty Dispute Protection of Hate Speech

As Berkeley prepares for more controversial speaker visit and further free speech challenges, faculty disagreed on limiting hate speech in a recent panel. “All ideas and views can be expressed on campus, no matter how offensive,” said Erwin Chemerinsky, dean of the UC Berkeley School of Law and an expert on constitutional law. John Powell, director of the Haas Institute for a Fair and Inclusive Society, expressed an opposite viewpoint, “I don’t think (free speech) is a defining issue in the country. I think the defining issue in the country is white supremacy.”

The Daily Californian>
June 20, 2017: Free Speech on College Campuses in the Senate Spotlight

U.S. Senators questioned First Amendment lawyers, university administrators and college students at a Judiciary Committee hearing on campus speech in June. The Committee’s Republican members expressed significant concerns about the cancellation of multiple provocative speakers at public universities across the country, with Chairman Chuck Grassley saying that free speech seems to have been “sacrificed at the altar of political correctness.”

ABC News>

 

June 26, 2017: Wisconsin State Assembly Supports Campus Free Speech Act

The Wisconsin State Assembly sent to the State Senate last week the Campus Free Speech Act, legislation which would institute severe penalties — including suspension or explosion — for University of Wisconsin students who engage in “violent, abusive, indecent, profane, boisterous, obscene, unreasonably loud or other disorderly conduct that interferes with the free speech of others.” In an interview on NPR’s “All Things Considered,” the bill’s Republican sponsor said that his legislation was intended to provide “a basic framework that protects the constitutional rights of everyone on the campus.” Governor Scott Walker is expected to sign the legislation once it is passed by the State Senate.

NHPR>
April 26, 2017: North Carolina Legislators Take Pro Speech Hardline on Campus

In April, the North Carolina House of Representatives passed H.B. 527, legislation which would mandate that public universities take disciplinary action against students “who disrupt events or interfere with others’ free speech rights.” The bill would also obligate the UNC Board of Governors to form a Committee on Free Expression, which would make recommendations on how state schools could remove barriers to free speech on their campuses.

News Observer>
April 26, 2017: Berkeley Offers, Coulter Rejects Alternative Dates for Cancelled Speech

The University of California at Berkeley offered alternative dates for an event featuring Ann Coulter, after canceling the initial event due to concerns about safety. Coulter rejected the alternative dates, after the conservative groups sponsoring the event pulled out. They blamed Berkeley for failing to provide adequate security.

NPR>
April 24, 2017: Conservatives Sue Berkeley Over Coulter Cancellation

After canceling a speech scheduled to be delivered by Ann Coulter, the University of California at Berkeley was sued by Berkeley College Republicans and Young America’s Foundation. The plaintiffs accuse the University of violating the First Amendment rights of its conservative students, a minority group on campus, by discriminating against speakers with a conservative viewpoint. The University refuted the accusations made in the lawsuit, saying that they respected the right of people of differing viewpoints to speak on their campus.

Washington Post>
April 19, 2017: Citing Safety Concerns, Berkeley Cancels Ann Coulter Event

The University of California at Berkeley called off an event featuring Ann Coulter, a conservative commentator known for making controversial statements, in April. School officials cited safety concerns, saying in a letter to Berkeley College Republicans that it was “not possible” for the University “to assure that the event could be held successfully — or that the safety of Ms. Coulter, the event sponsors, audience and bystanders could be adequately protected.”

New York Times>
April 11, 2017: Speech by Conservative Writer David Horowitz Canceled

Berkeley College Republicans cancelled a planned speech by David Horowitz, a conservative writer, and blamed the University’s administration.

CBS Local>
February 2, 2017: In Response to Riots, Berkeley Cancels Milo Yiannopoulos Event

Administrators of the University of California at Berkeley cancelled a scheduled speech by Milo Yiannopoulos, then a Breitbart News editor, after riots in opposition to his event resulted in $100,000 worth of damage. In a statement, the University condemned the riots and said it regretted having to call off the event because it was “bound by the Constitution, the law, our values and the campus’s Principles of Community to enable free expression across the full spectrum of opinion and perspective.”

CNN>

History & Legal Cases

While private colleges and universities might promote free speech on their campus in the interest of academic freedom, they are not bound to follow the First Amendment like their public counterparts are. Public institutions of higher education, like the University of California at Berkeley, have a legal obligation to protect the freedom of expression on their campuses. In Healy v. James (1972), the Supreme Court held that “state colleges and universities are not enclaves immune from the sweep of the First Amendment” and “held that public institutions of higher education must not refuse recognition of student groups based on unsupported fear of disruption but instead bear a heavy burden to justify a “prior restraint,” that is, a governmental content-based prohibition of expression, on account of First Amendment protection.”

While public schools are not allowed to discriminate against potential campus speakers on the basis of viewpoint or ideology, they are able to impose uniform and reasonable time, place and manner restrictions. Prohibiting individuals from speaking because of their ideology, unless they are advocating immediate violence, is generally considered unconstitutional.

Healy v. James>
Hecklers’ Veto

When controversial speakers like Ann Coulter or Milo Yiannopolis are invited to speak on college campuses, their invitations are often met with (sometimes violent) protests. A “hecklers’ veto” is when these protests, because of fear of disruption or conflict, cause authorities to cancel the event featuring the controversial speaking. According to the First Amendment Center, this has the effect of suppressing the controversial speaker’s free speech rights. The Supreme Court, however, has allowed the use of a “hecklers’ veto” since its ruling in Feiner v. New York (1951). The Knight First Amendment Institute recently engaged leading thinkers to consider “From the Heckler’s Veto to the Provocateur’s Privilege.”

Newseum Institute> Feiner v. New York> Knight First Amendment Institute>

Analysis & Opinion

April 27, 2017: No “Parameters” to Campus Free Speech

Responding to New York University’s Ulrich Baer’s New York Times op-ed, Conor Friedersdorf, writes that “Very few words clarify what speech is to be suppressed by what standards, or who is to decide if they are met, as if we needn’t worry overmuch about limiting principles or the abuses that invariably follow when they are absent—even though marginalized groups typically bear the attendant burdens most heavily.”

NHPR>
April 26, 2017: In Support Ann Coulter’s Berkeley Speech

The Editorial Board of The Los Angeles Times said that the University of California at Berkeley has a “fundamental responsibility” to ensure “free expression and unfettered debate” on its campus and should provide Ann Coulter a secure place to speak. Though the editorial calls the lawsuit against Berkeley “unconvincing,” it said that the University was unjustified in canceling the event featuring Coulter. Meanwhile The National Review David French said that the cancellation of Ann Coulter’s speech proves that a “violent Left-wing mob dictates the rules at one of the nation’s (and the world’s) most prominent academic institutions.” French accused University administrators of failing “to protect Americans’ constitutional rights.”

LA Times> National Review>
April 24, 2017: Banning Speakers Is Not Censorhip, It Ensures Free Speech For Greater Group

Ulrich Baer writes that the free speech debate should be framed by “the way certain topics restrict speech as a public good.” He continues that protests against controversial speakers should be seen “as an attempt to ensure the conditions of free speech for a greater group of people, rather than censorship.”

New York Times>
April 20, 2017: Who Has the Right To Speak on Campus

Although public universities are considered public forums, universities do retain the ability to restrict when and where public speakers are able to speak — although these restrictions cannot be based on the content of their speech. Public universities do have “some latitude” to restrict speakers, but those restrictions must be reasonable and applied fairly.

USA Today>
February 2, 2017: Berkley Was Once “Birthplace” of Free Speech on Campus

In 1964, student activists at Berkeley launched a free speech movement that would spread nationwide by insisting that the University administration remove restrictions on campus expression. A half century later, the cancellation of an event featuring Milo Yiannopoulos has sparked a “battle” over free speech at the California college.

New York Times>
August 1, 2016: Campus Free Speech Watchdog FIRE Ramps Up Its Fight

As campus protests make news, FIRE’s mission to promote academic freedom and freedom of expression on campus grows.

New York Times>

October 25, 2012: Is Campus Free Speech a Sham?

In an opinion piece in The New York Times, President of the Foundation for Individual Rights in Education (FIRE), Greg Lukianoff, says that campus free speech does not exist and cites examples of where students’ voices have been consistently suppressed. “Colleges have promulgated speech codes that are not only absurd in their results but also detrimental to the ideals of free inquiry. Students can’t learn how to navigate democracy and engage with their fellow citizens if they are forced to think twice before they speak their mind,” he writes.

New York Times>