Deep Dive

Free Speech on College and University Campuses

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.

Updated Jan. 18, 2023.

News & Updates

Jan. 18, 2023: DeSantis Didn’t Violate Court Order Blocking ‘Stop WOKE’ Act, Federal Judge Rules

A federal judge ruled Jan. 12 that Florida Gov. Ron DeSantis’ administration did not violate an order blocking the academic provision of the “Stop WOKE” Act, which restricts race-based discussions in higher education classrooms.

In November, Chief U.S. District Judge Mark Walker issued a preliminary injunction blocking the provision of the “Stop Wrongs Against Our Kids and Employees” Act, or the “Stop WOKE” Act, calling it “positively dystopian.” He previously declared the employment provision of the act unconstitutional.

On Dec. 28, Chris Spencer, director of DeSantis’ Office of Policy and Budget, sent a memo to state Education Commissioner Manny Diaz Jr. and state university system Chancellor Ray Rodrigues requesting information “regarding the expenditure of state resources on programs and initiatives related to diversity, equity and inclusion, and critical race theory within our state colleges and universities.”

According to the memo, the requested information would provide legislators the information they need to prepare future budget and policy proposals because “it is important that we have a full understanding of the operational expense of state institutions.” Spencer gave a Jan.13 deadline.

Six professors and a student who originally challenged the Stop WOKE Act filed a motion Jan. 11 to compel compliance with the preliminary injunction, arguing that the information the memo requests is an attempt to subvert Judge Walker’s blocking of the law.

But, Judge Walker ruled in favor of DeSantis’ administration Jan. 12. “Although this court would not hesitate to compel compliance with its preliminary injunction, this court finds there has been no violation of the injunction at this time,” he wrote.





Nov. 17, 2022: Federal Judge Blocks DeSantis’ ‘Stop WOKE’ Act, Says It’s ‘Positively Dystopian’

Chief U.S. District Judge Mark Walker blocked a key provision of Florida Gov. Ron DeSantis’ “Stop WOKE” Act, citing First Amendment violations of viewpoint discrimination after Florida claimed that public university professors were bound by state-sanctioned speech.

The “Stop Wrongs Against Our Kids and Employees” Act, coined the “Stop WOKE” Act by DeSantis, went into effect July 1. The academic provision of the law sought to bar certain discussions in public university and college classrooms, specifically those centered around racism and gender, according to an Aug. 18 complaint filed by the American Civil Liberties Union, (ACLU), the ACLU of Florida and the NAACP Legal Defense Fund on behalf of seven professors and a student.

Judge Walker’s preliminary injunction immediately blocks any attempts to enforce the act in higher education environments. He also previously declared the act’s employment provision unconstitutional in August.

“The law officially bans professors from expressing disfavored viewpoints in university classrooms while permitting unfettered expression of the opposite viewpoints,” wrote Judge Walker in the 139-page order filed in the U.S. District Court for the Northern District of Florida. “Defendants argue that, under this Act, professors enjoy ‘academic freedom’ so long as they express only those viewpoints of which the State approves. This is positively dystopian. It should go without saying that ‘[i]f liberty means anything at all it means the right to tell people what they do not want to hear.”


Oct. 27, 2022: Florida’s ‘Stop WOKE’ Act and the Outrage of Public University Professors

Florida’s “Stop WOKE” Act has ignited fear and outrage from public university educators as a federal judge decides whether to issue a preliminary injunction to block the law’s academic provision which would restrict gender and race-centric discussions and teachings in the classroom.

The “Stop Wrongs Against Our Kids and Employees” Act, coined “Stop WOKE” Act by Florida Gov. Ron DeSantis, went into effect July 1. The restricted classroom discussions can be centered around civil rights, “privilege,” “oppression,” and “systemic racism,” according to a complaint against the act filed by the American Civil Liberties Union, (ACLU), the ACLU of Florida and the NAACP Legal Defense Fund Aug. 18.

According to Andrew Gothard, president of United Faculty of Florida, (UFF), a union of more than 25,000 faculty members in all levels of education across the state, “there’s a lot of fear among faculty right now, but there’s also a lot of desire to fight and that’s what we’re doing at UFF.”

“I do feel confident saying that the entire higher education community is up in arms about this,” he added.




Sept. 27, 2022: Texas University Professor Receives $165K Settlement After Free Speech Lawsuit

A math professor at the University of North Texas, was awarded $165,000 in damages and attorney’s fees Sept. 22 after settling a lawsuit against the university for violating his right to free speech.

Dr. Nathaniel Hiers sued the university for infringing on his right to free speech by discriminating against his viewpoint, placing unconstitutional conditions on his employment, and attempting to compel and retaliate against his speech, according to the lawsuit filed April 2020 in the United States District Court in the Eastern District of Texas. In the court’s opinion, the judge posed the free speech issue as, “What can a public employee say, and what can he choose not to say, without fear of reprisal from his employer?”

Hiers taught multiple undergraduate courses in the University of North Texas, (UNT), College of Science Department of Mathematics since 2013 while completing the university’s doctoral program. After receiving his doctoral degree, UNT offered Hiers an adjunct faculty position slated to begin in the fall of 2019. But, after writing an unsigned message on a faculty lounge chalkboard during that first semester, Hiers was fired.



Sept. 20, 2022: Utah Professor Sues University Over Required Pronoun Use, Argues Free Speech Infringement

A professor at Southern Utah University filed a lawsuit against the university, stating it violated his right to free speech by sanctioning him for refusing to use students’ preferred pronouns.

Richard Bugg, a theater professor at Southern Utah University, (SUU), filed the lawsuit in the United States District Court for the District of Utah Aug. 31. Bugg, represented by attorneys Jerry Mooney and Randall Garrou with financial support from the Faculty Legal Defense Fund of the Foundation for Individual Rights and Expression, (FIRE),  argues that he is “opposed to the coercion of speech that is taking place on our campus and on most campuses,” the lawsuit stated.



Jan. 19, 2022: Professor at a Public University Suspended for Profanity-Laden Video Sues for Free Speech Violations

On Jan. 26, Professor Mehler sued Ferris State University for violating his First Amendment rights. In a suit filed in the U.S. District Court for the District of Western Michigan, it says that over the past two decades Mehler has developed “‘The Show,’ a performance that includes strong themes, colorful language, and modern cultural references, to capture student’s attention and challenge them to think critically.”

The complaint argues that Mehler’s colorful teaching style is well known, and that his statements in the video criticizing the university’s COVID-19 protocols—the school doesn’t require students to be vaccinated—aren’t grounds for suspension.

The lawsuit is seeking to have the suspension lifted and allow Mehler to immediately resume teaching for the Spring 2022 semester.


Oct. 20, 2021: ACLU Sues Oklahoma Over Its Critical Race Theory Ban

The ACLU and other civil rights organizations are suing the state of Oklahoma over a law that prohibits certain types of instruction around race and gender.

Filed on October 19 in the U.S. District Court for the Western District of Oklahoma against the state’s governor, attorney general, and more than a dozen top education officials, the suit alleges that the law violates students’ and educators’ First and 14th Amendment rights.

HB 1775, which took effect in July, “severely restricts discussions on race and gender in Oklahoma’s elementary, secondary, and higher education schools without any legitimate pedagogical justification, using language that is simultaneously sweeping and unclear,” the suit alleges.


Aug. 4, 2021: Iowa State University Warns Professors Against Teaching Critical Race Theory in the Classroom

Professors at Iowa State University (ISU), a public university in central Iowa, will not be allowed to teach certain “defined concepts” to students in required classes, even if the concept is germane to the course’s subject matter.

The policy was announced this summer in response to a new state law, HB802, which prohibits public schools from implementing mandatory “race and sex stereotyping” training that incorporates  “defined concepts,” such as ideas that “the United States of America and the state of Iowa are fundamentally or systemically racist or sexist,” or “that an individual, by virtue or the individual or sex, bears responsibility for actions committed in the past by other members of the same race or sex.”  More than a dozen other states including New Hampshire and Missouri have also passed bills that limit how public schools can talk about racism and sexism.


April 15, 2021: Free Speech Groups Call on USD to End Investigation of Law Professor

A professor at University of San Diego School of Law is being investigated for a blog post he wrote criticizing the Chinese government.

In the post, published on March 10th, Professor Tom Smith shared an excerpt from a Wall Street Journal op-ed that called attention to Chinese government’s efforts to control the narrative about the origins of the coronavirus.

“If you believe that the coronavirus did not escape from the lab in Wuhan, you have to at least consider that you are an idiot who is swallowing whole a lot of Chinese cock swaddle,” Smith wrote.

The blog post triggered a formal complaint filed by the Asian Pacific American Law Student Association calling for Smith’s termination. The group had interpreted Smith’s post as an attack on Chinese people, and claimed that his language should be categorized as harassment.

Smith later added language to his post clarifying that it was meant as a criticism of the Chinese government and not the Chinese people.

“UPDATE: It appears that some people are interpreting my reference to ‘Chinese cock swaddle,’ as referent to an ethnic group. That is misinterpretation. To be clear, I was referring to the Chinese government,” the amended post now states.

On March 17, USD Law Dean Robert Shapiro sent an email to the law school community announcing an investigation into Smith’s language, and stating that university policies “specifically prohibit harassment, including the use of epithets, derogatory comments, or slurs based on race or national origin, among other categories.”

The law school also issued the following official statement:

“The University of San Diego School of Law is aware of the blog post of the faculty member.

While the blog is not hosted by the University of San Diego, these forms of bias, wherever they occur, have an adverse impact on our community. It is especially concerning when the disparaging language comes from a member of our community. A core value of the University of San Diego School of Law is that all members of the community must be treated with dignity and respect. University policies specifically prohibit harassment, including the use of epithets, derogatory comments, or slurs based on race or national origin, among other categories.

We have received formal complaints relating to the faculty member’s conduct, and in accordance with university procedures, there will be a process to review whether university or law school policies have been violated,” the statement read.

Multiple free speech groups have sent letters to Dean Shapiro asking him to drop the investigation into Smith. Although USD is a private institution and not bound by the First Amendment, it has made formal commitments to respecting its faculty members’ academic freedom. For example, USD’s policy manual adopts the American Association of University Professors’ 1940 Statement on Academic Freedom which ensures professors the right to engage in extramural speech without fear of institutional censorship or discipline.

The Foundation for Individual Rights in Education (FIRE) has sent various letters warning that an investigation could have a chilling effect on speech even if the school ultimately decides not to punish Smith.

The Academic Freedom Alliance, an alliance of college and university faculty members who advocate for academic freedom, also spoke out against USD’s investigation.

“This investigation is a clear threat to Professor Smith’s academic freedom. Blog posts are a form of what the American Association of University Professors calls ‘extramural speech.’Extramural speech is a protected form of academic freedom. When professors speak or write as citizens, they should be free from institutional censorship of discipline,” the organization said in a statement.

March 19, 2021: New Case Tests Bounds of Professor’s Classroom Speech Rights

A lawsuit filed by a professor at a small public college in Ohio highlights tensions between an educator’s free speech rights and a student’s right to be free from a hostile learning environment.

Nicholas Meriwether, a political philosophy professor at Shawnee State University, sued the institution after he was investigated for refusing to refer to a student by her preferred gender pronouns. The professor claims that doing so would go against his religious beliefs, and sued the school on First Amendment grounds.

The complaint was dismissed by United Magistrate Judge Karen Litkovitz in 2019 and again by the United States District Court for the Southern District of Ohio in 2020. But on March 26, a three-judge panel on the United States Court of Appeals for the Sixth Circuit revived the lawsuit.


Feb. 5, 2021: Student Sues University of Tennessee for Violating Her Free Speech Rights

On Feb. 3, a University of Tennessee student sued the school for violating her First Amendment right to free speech.

Filed in the U.S. District  Court for the Western District of Tennessee Western Division, Kimberly Diei says that she was nearly expelled from the university’s graduate pharmacy program for her social media posts.

The complaint, filed on her behalf by the Foundation for Individual Rights in Education (FIRE), said that Diei’s personal social media accounts were investigated twice by university officials who concluded that some of her posts were “too crude,” “vulgar” or “sexual,” and as such, violated the university’s professionalism policies.

According to the complaint, Diei, who posted on Twitter and Instagram under the pseudonym, “KimmyKasi”, enjoys “commenting on topics of interest to her and other young, black social media users, occasionally using profanity and freely expressing her views on sexuality. None of her posts identify her as a College of Pharmacy student or indicate any affiliation with the University of Tennessee.”

In September 2019, Diei was called to appear before the college’s Professional Conduct Committee after school administrators received an anonymous complaint about her posts. The committee determined that her posts violated the university’s policies, and required Diei to write a letter reflecting on her behavior.

Less than a year later, school officials said they were investigating Diei’s social media accounts again after receiving another anonymous complaint about her Twitter and Instagram posts, including one where she suggested raunchy new lyrics for a Cardi B. and Megan Thee Stallion song. On Sept. 1, 2020, the committee unanimously decided to expel Diei from the pharmacy program. She appealed to the Dean, who reversed the decision one month later after FIRE intervened on Diei’s behalf.

Despite the reversal, Diei is suing the school because she is afraid she’ll be punished again if she continues to post on social media. “Because of the vague, subjective standards employed by university officials during this shocking ordeal, Diei fears that participating in everyday discussions online may again put her doctoral degree at risk,” reads the complaint.

In a statement posted on FIRE’s site, Diei’s attorney, Greg Greubel, says that as a public institution that is bound by the Constitution, the University of Tennessee can’t censor a student’s protected speech. “The First Amendment protects the right of students to suggest lyrics for a Cardi B remix on Twitter and Instagram. Period,” said the FIRE attorney.

The suit is asking the school to halt any further investigations into Diei’s social media activities, eliminate the school’s overly broad professionalism policies, and award monetary damages to Diei for violating her free speech and due process rights.


Aug. 3, 2018: Data Suggests Campus Free Speech Crisis is Over-exaggerated

Data analysis from Georgetown’s Free Speech Project suggests that a free speech crisis on college campuses is not as dire as many claim. The project found roughly 90 incidents since 2016 in which a person’s free speech rights were threatened according to their criteria, of which two-thirds of the cases took place on college campuses. They also found that most of the incidents involving speakers on campus involved a handful of the same individuals, and found instances in which left-wing speech was shut down as well.


Sanford Unger directs the Knight Foundation-funded Free Speech Project at Georgetown and writes on findings of the recently released report on the state of free speech on college campuses.

June 24, 2018: University of West Florida Updates Its Speech Policy After Governor Signs Law

The University of West Florida has eliminated its “free speech zones,” which were specific areas on campus where free speech was confined to. Students at the public university will now be able to exercise their right to free speech throughout campus with some time, place, and manner restrictions.

Washington Examiner

June 12, 2018: Campus Free Speech Legislation Signed By Louisiana Governor To Protect Controversial Speakers

A new law aimed at protecting controversial speakers visiting Louisiana colleges was signed by Governor John Bel Edwards and has taken immediate effect.

Under Senate Bill 364, now Act 666, colleges and universities will be required to spell out speech policies and advertise them in student handbooks and on websites. In conjunction with the Board of Regents, schools must develop policies that say that students and faculty may discuss any topic and assemble as long as it is legal and non-disruptive of school functions. Additionally, schools must indicate that they will strive to ensure the fullest degree of intellectual freedom and free expression and that it is not the role of the institution to shield individuals form protected speech under the First Amendment.

Associated Press The Advocate Act 666
June 11, 2018: Feds File “Statement Of Interest” In Case Arguing UM’s Speech Codes Are Unconstitutional

The Department of Justice filed a “Statement of Interest” in a case between D.C.-based civil rights liberties group Speech First and University of Michigan’s President Mark Schlissel over the school’s speech code and anti-bullying policy.

On the same day, UM announced that it revised its policy.

Speech First alleges that the university’s policy is too broad and violates the First Amendment because it may cause students to censor their speech. The DOJ’s Statement of Interest argues that UM’s code of conduct is unconstitutional and “chills” protected speech.

“In recent years, many institutions of higher education have failed to uphold these freedoms, and free speech has come under attack on campuses across the country,” the Statement of Interest read. “Such failure is of grave concern because freedom of expression is ‘vital’ on campuses.”

Acting Associate Attorney General Jesse Pannuccio said in a statement:

“Freedom of speech and expression on the American campus are under attack. This Justice Department, under the leadership of Attorney General Jeff Sessions, is committed to promoting and defending Americans’ first freedom at public universities.”

A university spokesperson says that the lawsuit paints a “false portrait of speech” on campus by misstating UM’s policy. The spokesperson said that the Bias Response Team, which the DOJ claimed were bestowed with disciplinary power, do not in fact have that authority. Rather, the team supports students on a voluntary basis.

The DOJ notes that this case is the fourth Statement of Interest filed in a First Amendment case under Attorney General Jeff Sessions.

This isn’t the first time University of Michigan has been challenged over their speech code. A court ruled against UM in 1989 over the adoption of a speech code. A student filed a suit against the university because he alleged that the speech code, amended to the school’s policy as a response to hate speech, prevented him from having conversations about race and gender. The district court ruled in favor of the student and against UM on the grounds that the policy was vague and too broad.

Detroit Free Press The Detroit News Chronicle of Higher Education Inside Higher Ed U.S. Department of Justice Press Release U.S. Government’s Statement of Interest Doe v. University of Michigan
May 14, 2018: A twenty-minute on campus protest at U. of Nebraska-Lincoln resulted in a drawn-out discord between powerful state institutions

In a collaborative reporting project, This American Life and The Chronicle of Higher Education followed a schism between lawmakers and a public university over what kinds of free speech should be tolerated on campus. A graduate student and member of the school’s English department confronted a student tabling for a conservative campus group and handing out political paraphernalia by calling her names and giving her the finger. The brawl, caught on video and widely publicized, resulted in the graduate student being removed from her teaching duties and Nebraska lawmakers turning critical of the school’s political climate. State legislators introduced a free-speech bill, while the university announced a new policy that made the motto “Nebraska Nice” a condition for free speech on its campuses. Chronicle of Higher Education reporter Steve Kolwich writes, “it was less about free speech than how to use free speech to get what you want.”

Associated Press The Chronicle of Higher Education This American Life
March 12, 2018: Can a New Generation Redefine the Meaning of the First Amendment?

Gallup, the Knight Foundation, the American Council on Education, Charles Koch Institute and the Stanton Foundation worked together to update a 2016 landmark survey of college students and their thoughts on their First Amendment freedoms. Topics included: “whether college students ever consider violence or shouting down speakers acceptable, whether they believe certain groups of students can freely express their views on campus and whether social media has displaced public areas of campus as the venue for discussing political and social issues.” The results show shifting attitudes to freedoms protected by the First Amendment.

Washington Post Medium Knight Foundation Report Gallup Poll
March 8, 2018: Ballard Spahr Discusses Freedom of Expression in Higher Ed

Ballard Spahr outlines what it sees as the critical issues in campus speech today.

Ballard Spahr
Jan. 25, 2018: Update on Free Speech Lawsuit Against Berkeley

The Justice Department filed a statement of interest in support of two conservative groups suing Berkeley on First Amendment grounds, stating that their rights were violated when conservative speakers appearances were cancelled. According to a Justice Department spokesperson the decision was based on the need “to protect against universities — the government really, if you’re a public university — deciding which speech is favored, which ideas are too controversial to even allow to be heard on a college campus.”

Washington Post
Jan. 21, 2018: Waiting for the Next Campus Speech Controversy

CBS News documents the current state of campus protests.

CBS News

Nov. 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

Oct. 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

Sept. 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
Sept.22, 2017: What Berkeley Student Say About Campus Free Speech

The New York Times excerpts students comments on free speech.

The New York Times
Sept. 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.

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.”

Sept. 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.

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.

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
Feb. 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.”



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. 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 Yiannopoulos 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

June 4, 2021: Stanford Law School Sends the Wrong Message About Satire, Protected Speech with Investigation of Student

One would think that those running Stanford Law School—an elite law school within an elite university—would know well what students’ First Amendment rights are, and what speech is protected by those rights.

That’s why it was so jarring to see administrators there recently threaten a student’s graduation over a satirical email he sent to the law school community.

Thankfully, Stanford ultimately backed off and allowed the student to graduate. But the fact that this highly visible episode took place at all not only speaks poorly about the climate for free expression at Stanford, it sets a bad example that may be replicated at other universities by censorship-minded administrators.

The controversy also highlights the restrictions often faced by satire and parody.

May 17, 2021: Iowa Legislature Joins Chorus of States Introducing Bills that Intrude On Academic Freedom and Free Speech

Iowa has joined the growing list of states where the legislature has introduced a bill mandating what can and cannot be taught in its public schools, in clear opposition to the First Amendment.

As I’ve written about recently, the state legislatures in IdahoRhode Island, and New Hampshire have all contemplated bills that would prohibit publicly funded educational institutions, including colleges and universities, from providing teaching or training that advances “divisive concepts” about race and gender. These pieces of legislation—and like-minded ones in other states—follow the Trump administration’s ill-conceived “Executive Order on Combatting Race and Sex Stereotyping” from September 2020.

Iowa stands out, though, because among the measures on the table is slashing funding to institutions that utilize The New York Times’ “1619 Project” in U.S. history curriculum. The 1619 Project reframes U.S. history by going back to the first slave ship arriving in America in 1619 and by examining the role that slavery has played throughout American history.

May 13, 2021: Troubling State Bills in Rhode Island, New Hampshire Take Aim at Teaching “Divisive Concepts”

Recently introduced legislation in Rhode Island and New Hampshire continues the trend of state legislatures taking aim at the teaching of “divisive concepts” about race and gender in higher education. The bills, like their counterparts in other states, are deeply flawed and pose a threat to free speech and academic freedom.

Rhode Island’s H6070 bill, introduced in March 2021, mandates that “any contract, grant or training program entered into by the state or any municipality include provisions prohibiting teaching divisive concepts and prohibit making any individual discomfort, guilty, anguish or any distress on account of their race or sex.”

May 6, 2021: Idaho Legislature Continues to Threaten Free Speech, Academic Freedom at State’s Public Universities

Controversy at the state legislative level in Idaho, regarding what may or may not be taught at the state’s public universities, presents an ongoing threat to free speech and academic freedom. It is also one of many recent instances nationwide where state legislatures have intruded upon institutional academic freedom as well as the individual rights of faculty members.

In Idaho, members of the legislature have been trying for over a year to prevent public universities from using state funding to support “social justice”-related activities, organizations, and events on campus. They have advanced budgets that have cut funding and have threatened further cuts. This led Boise State University to suddenly cancel 52 diversity-related classes in March of this year.

Those 52 classes represented sections of University Foundations 200, a course described by Boise State as “inquir[ing] into key ethical ideas and values together, giving equal voice to all who are committed to the public good.”

April 13, 2021: Federal Judge Rules Former Medical Student Cited for Lack of Professionalism Has a Plausible Retaliation Claim

The treatment of former University of Virginia medical student Kieran Ravi Bhattacharya raises serious concerns about the use of “professionalism” to punish those who hold dissident views or dare to challenge authority.  The university suspended and dismissed Bhattacharya after he raised concerns about a presentation from a faculty member about “microaggressions”- often defined as unintentional, subconscious slights or insults often uttered by members of a majority race toward racial minorities.

During a microaggression panel discussion, a faculty member presented her research on microaggressions. Bhattacharya challenged a faculty member’s definition of the term, and expressed concern that “a microaggression is entirely dependent on how the person who’s receiving it is reacting.” He also questioned the faculty member’s research in the area as purely anecdotal, as well as  her methods for gathering evidence on the subject.

Another professor, who attended the event and helped organize it, filed a “professional card” on Bhattacharya writing that he “asked a series of questions that were quite antagonistic toward the panel.”

The university later sent Bhattacharya a note, saying that he could not return to classes until he was seen by someone at counseling and psychology services. Bhattacharya expressed amazement that he would have to seek psychological services because he had challenged a faculty member’s presentation on microaggressions.

April 6, 2021: Sixth Circuit Rejects Garcetti in Context of University Professor’s Classroom Speech

A U.S. Supreme Court ruling creating a categorical bar on the free-speech rights of public employees who speak pursuant to their official job duties does not apply in the university classroom, a federal appeals court has ruled. The Sixth Circuit’s decision in Meriwether v. Hartop  has received more attention for the underlying facts of the case—that Nicholas K. Meriwether, a philosophy professor at Shawnee State University in Portsmouth, Ohio, sued his university after receiving a written reprimand and a Title IX investigation for refusing to address a transgender student by the student’s preferred pronoun.

However, the decision has greater significance in First Amendment law for the Sixth Circuit’s refusal to rely on Shawnee State’s First Amendment defense.  The college relied, in part, on the U.S. Supreme Court’s decision in Garcetti v. Ceballos (2006), a decision in which the High Court drastically reduced the free-speech rights of public employees by creating a new categorical rule – “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”

July 2, 2018: How To Interpret The First Amendment In The Age Of Social Media Trolls?

The New Yorker reports on the re-examination of free speech on campus in an age of provocative social media personalities like Milo Yiannopoulos.

The New Yorker

June 14, 2018: Are Campus Free Speech Guidelines #Trending?

The New York Times highlights a trend among some Republican-led state legislatures to impose policies and bills to establish campus free speech guidelines at public colleges and universities, as an anecdote to combat campus protests.

The New York Times

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.”


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 Censorship, 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

Feb. 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

Aug.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

Oct. 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