free speech and college campuses...history of free speech • alien and sedition acts, slavery...
TRANSCRIPT
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FREE SPEECH AND COLLEGE CAMPUSES
Monday, June 5, 2017, 1:45 p.m. – 2:45 pm.
2017 SCCE Higher Education Compliance Conference
Baltimore, Maryland
Who We Are• Texie Montoya, JD – Associate Special
Counsel, Boise State University
• John McDonald, JD, CCEP – Assistant Director, Institutional Compliance and Ethics, Boise State University
• Chris Jaeger, JD – Ph.D. Student, Department of Psychology & Human Development, Vanderbilt University
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Presentation Goals
• Provide brief overview of what is and isn’t protected by the first amendment’s free speech clause.
• Provide framework for analyzing free speech issues on campus.
• Analyze contemporary free speech issues in higher education.
What is Speech? What does this mean?
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History of Free Speech
• Alien and Sedition Acts, slavery debates, immoral speech.
• Due Process Clause of the Fourteenth Amendment (1789) & Gitlow v. New York, 268 U.S. 652 (1925)
• Cohen v. California, 403 U.S. 15 (1971)
History of Free Speech on Campus
• Papish v. Board of Curators of the University of Missouri, 410 U.S. 667 (1973).
• Speech codes, hate speech, free speech zones.
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What Is Not Protected?
• Obscenity –Miller v. California– Child Pornography – New York v. Ferber
• Fighting Words – Chaplinsky v. New Hampshire• Incitement – Brandenburg v. Ohio
What Is Not Protected?
• True Threats –Watts v. U.S.
• Defamation (including libel and slander) –
– New York Times Co. v. Sullivan
– Hustler Magazine, Inc. v. Falwell
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What about commercial speech?
• Sort of…
• Central HudsonTest
Harassment
• Not necessarily protected – if it violates another’s ability to get their education.
• DeJohn v. Temple University (2008).
• Sexual harassment policies/Title IX
• More about “speech codes” in a bit.
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Time, Place, and Manner Restrictions
• Not restricting the content of the message or the viewpoint of the speaker, but restricting only when, where, and how the message is made.
• For safety and order.
• Cox v. New Hampshire (1941)
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Time
Place
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Manner
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Public Forum Doctrine
• Classification of public property
– Traditional public forum
– Non‐public forum
– Designated public forum
– Limited public forum
Forum Analysis
• Standards of judicial review*– Strict scrutiny
– Intermediate scrutiny
– Rational basis
• Content/viewpoint – Content – subject matter
– Viewpoint ‐ perspective
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Traditional Public Forum
• Places that, by tradition, have long been used for assembly and public discourse– Sidewalks– Streets– Parks
• Limitations on restrictions– Strict scrutiny ‐ content and viewpoint restrictions– Reasonable time, place, and manner restrictions are permissible.
Designated Public Forum
• Created when the government intentionally designates and opens a non‐public forum to expressive activity by a class of speakers. – University facilities held open for meetings of student groups
• Limitations on restrictions– Strict scrutiny ‐ content and viewpoint restrictions– Reasonable time, place, and manner restrictions are permissible.
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Limited Public Forum• Created when the government designates and opens a non‐
public forum to certain expressive activity (certain groups or certain topics), often temporary. – Forum open to students only– Forum for election debate
• Limitations on restrictions– Strict scrutiny ‐ viewpoint restrictions– Rational basis – content restrictions– Reasonable time, place, and manner restrictions are
permissible.
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Non‐public Forum
• Government buildings and property that are not by tradition or designation open for public communications, but are dedicated and used for business, education or other dedicated purposes.– Military bases– Courthouses – Government offices (public university offices)
• Limitations on restrictions– Strict scrutiny ‐ viewpoint restrictions– Rational basis – content restrictions– Reasonable time, place, and manner restrictions are permissible.
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Contemporary Issues
• Campus free speech increasingly in the news
Contemporary Issues• House Subcommittee on Constitution and Civil Justice recently heard testimony on:– University speech codes– Free speech zones and safe spaces– University discipline of students for off‐campus / online speech
– Speaker disinvitations– Professors’ rights to free expression
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Speech Codes
• Campus regulations that address students’ rights of expression
• Most universities have speech codes
• FIRE Spotlight on Speech Codes
Free Speech Zones & Safe Spaces
• “Free speech zones” on ~1 in 10 campuses (Apr. 4, 2017 Testimony of Greg Lukianoff.)
• Many require prior approval for use.
• Many recent cases find unconstitutional…
– Forum analysis
– Prior restraint issues
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Free Speech Zones & Safe Spaces• Smith v. Tarrant County College District, N.D. Tex(2009)
• Cincinnati Chapter of Young Americans for Liberty v. Williams, S.D. Ohio (2012)
• “Constitution cases” – e.g. Hawaii– Settlements often involve revision of policies to allow free speech / literature distribution in generally‐available areas without pre‐approval.
Free Speech Zones & Safe Spaces
• Safe spaces may infringe on others’ First Amendment rights
– University of Missouri‐Columbia
– Overseas example: Strathclyde
• Forum analysis
• Justifications for restrictions?
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Content Restrictions on Speech• Well‐developed doctrine for speech restrictions in public K‐
12 schools.– Some level of protection, West Virginia v. Barnette, 319 U.S. 624
(1943).– But more limited for fear of disruptions, Tinker v. Des Moines,
393 U.S. 503 (1963); Bethel School District v. Fraser, 478 U.S. 675 (1986)).
– Off‐campus speech can be punished, Fenton v. Stear, 423 F. Supp. 767 (W.D. Pa. 1976).
– Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988): ”reasonably related to pedagogical concerns.”
Content Restrictions on Speech• K‐12 standards migrating to university cases
– Keefe v. Adams, 840 F.3d 523 (8th Cir. 2015)• Online private (not school‐sponsored) speech.• Punishment justified b/c related to pedagogical concerns
• Criticism & potential responses• Likely next frontiers:
– Micro‐aggressions– Bias response teams
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Disinvitations
• Disinvitation by request of students/faculty or on safety/orderliness grounds
• Per FIRE, increasing over last 15 years
Disinvitations & The Heckler’s Veto
• “Heckler’s Veto” case law
• Peaceful protest vs. speech suppression: balancing rights of speakers, chilled speakers, and would‐be listeners
– Brandeis’ counter‐speech doctrine
– Yale’s Woodward Report
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Professors’ Expression
• Pickering‐Connick standard
• Garcetti v. Ceballos, 547 U.S. 410 (2006)
– Kennedy, Souter, & the “academic freedom exception”?
– Lower court fallout
Recurring Themes
• Practically, difficult balancing act.– Students are increasingly in favor of more restrictive speech policies. (Apr. 4, 2017 Testimony of Greg Lukianoff.)
– But restrictive speech policies can overstep First Amendment boundaries.
• Counter‐speech doctrine as gold standard