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Zack Briones Group

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Free Speech Zone Attracts Students With A Cause

The First Amendment to the Constitution protects speech no matter how offensive its content. Restrictions on speech by public colleges and universities amount to government censorship, in violation of the Constitution. Such restrictions deprive students of their right to invite speech they wish to hear, debate speech with which they disagree, and protest speech they find bigoted or offensive. An open society depends on liberal education, and the whole enterprise of liberal education is founded on the principle of free speech.

Free speech zone attracts students with a cause

To be clear, the First Amendment does not protect behavior on campus that crosses the line into targeted harassment or threats, or that creates a pervasively hostile environment for vulnerable students. But merely offensive or bigoted speech does not rise to that level, and determining when conduct crosses that line is a legal question that requires examination on a case-by-case basis. Restricting such speech may be attractive to college administrators as a quick fix to address campus tensions. But real social change comes from hard work to address the underlying causes of inequality and bigotry, not from purified discourse. The ACLU believes that instead of symbolic gestures to silence ugly viewpoints, colleges and universities have to step up their efforts to recruit diverse faculty, students, and administrators; increase resources for student counseling; and raise awareness about bigotry and its history.

Of course, public colleges and universities are free to invite whomever they like to speak at commencement ceremonies or other events, just as students are free to protest speakers they find offensive. College administrators cannot, however, dictate which speakers students may invite to campus on their own initiative. If a college or university usually allows students to use campus resources (such as auditoriums) to entertain guests, the school cannot withdraw those resources simply because students have invited a controversial speaker to campus.

When schools shut down speakers who espouse bigoted views, they deprive their students of the opportunity to confront those views themselves. Such incidents do not shut down a single bad idea, nor do they protect students from the harsh realities of an often unjust world. Silencing a bigot accomplishes nothing except turning them into a martyr for the principle of free expression. The better approach, and the one more consistent with our constitutional tradition, is to respond to ideas we hate with the ideals we cherish.

Free-speech zones refer to areas on college campuses and at certain public events, such as political conventions, specifically designated for protesters and demonstrators to exercise their right to freedom of speech. In this photo, a lone woman listens as Bryan Fish of St. Paul, Minnesota, delivers his speech in the free-speech zone set up within view of the Xcel Energy Center where the Republican National Convention was held Sept. 3, 2008 in St. Paul. (AP Photo/Jim Mone, used with permission from the Associated Press)

Free-speech zones refer to areas on college campuses and at certain public events, such as political conventions, specifically designated for protesters and demonstrators to exercise their right to freedom of speech.

University officials claim free-speech zones are necessary to prevent disruption of classes and that the policies are content-neutral time, place, and manner restrictions. To pass constitutional muster, such regulations must fulfill three rules:

Many First Amendment advocacy groups, such as the Foundation for Individual Rights in Education (FIRE), believe free-speech zones on campuses are unconstitutional, and several groups, as well as university students themselves, have challenged free-speech zone policies both in and out of court with mostly successful results.

In June 2002, students and faculty at West Virginia University filed suit against that school, alleging that its free-speech zone policy, which designated seven small areas making up less than 5 percent of the total campus as free-speech zones, was unconstitutional. By December 2002, the university had abandoned the policy.

In June 2006, the University of Nevada at Reno changed its free-speech policy after student activists, aided by the ACLU of Nevada and FIRE, challenged the policy. FIRE has helped students challenge similar policies at other schools, including Shippensburg University in Pennsylvania, Citrus Community College in California, and Texas Tech.

The jurisprudence on free-speech zones, in the university setting and elsewhere, continues to evolve and will undoubtedly remain part of the heated debate over the need for security and the need to protect civil liberties.

Emilie Kraft. 2009. Free Speech Zones [electronic resource]. The First Amendment Encyclopedia, Middle Tennessee State University (accessed Feb 08, 2023). -amendment/article/960/free-speech-zones

When students find themselves having to argue with academic administrators for their free speech rights, they should, in addition to making the legal arguments detailed in this Guide, make philosophical and moral arguments, including those advanced in On Liberty and other such texts. University administrators need to be reminded of the principles of free people, principles long deemed almost sacred in the academy itself. It is important, when making a free speech argument on your own behalf, to speak in terms of high principle and moral imperative as well as of legal rights. Academic administrators do not enjoy opposing in public the great words that have been uttered on behalf of liberty. It is for both moral and tactical reasons, then, that this Guide explains both the American struggle to attain free speech and the broader significance of such liberty.

As a legal matter, there is no specific level of federal funding that obligates a private college or institution to honor the First Amendment. Many factors, such as university governance, the appointment of trustees, and specific acts of legislation, need to be weighed in determining the status of any given institution. That should not stop students, however, from learning as much as they can about the funding and governance of their institution. There are moral and political questions that arise from such knowledge, beyond the legal issues. Do the taxpayers truly want to subsidize assaults on basic free speech and First Amendment freedoms? Do donors want to pay for an attack on a right that most Americans hold so dear? Information about funding and governance is vital and useful. For example, students may find that a major charitable foundation or corporation contributes a substantial amount of funds to their college, and they may inform that foundation or corporation about how the university selectively abuses the rights and consciences of its students. Colleges are extremely sensitive to contributors learning about official injustice at the institutions that those donors support. This is another example of our most general principle: Colleges and universities must be accountable for their actions.

For one, the standard announced in Davis carefully respects First Amendment rights, addressing only that behavior that deprives another student of the ability to obtain an education. Davis provides an exacting, speech-protective definition of harassment, ensuring an appropriate balance between freedom of expression on campus and the importance of establishing an educational environment free from harassment. And while Davis took place in the context of a grade school, it provides at least a floor for determining what speech a college may restrict in the name of combating harassment, given that college students enjoy far more robust speech rights than grade school students do.

These differences are of real importance, given the significant and fundamental differences between the workplace and the college campus. Employees do not have anywhere near the rights and expectations of freedom of expression that students do. This makes some sense as students are devoted to academic inquiry and the search for truth in a way that workers generally are not. (The line blurs somewhat more with university faculty, a situation discussed below). In addition to the core difference in the purpose and mission of a workplace as opposed to a college, it is important to remember that universities are not responsible for their students in the same stringent way that an employer is responsible for its employees. Because employers face higher liability standards for the speech of their workers, restricting the speech rights of workers accordingly is justified in a way that it is not on campus, where the university is saddled with far less liability for the speech of its students. Put another way, the law recognizes that students are not agents of the university in the same way that employees are agents of their employer.

If someone contends that a particular form of vitriolic speech can be prohibited (as opposed to criticized) because it is hate speech, you now know that this argument is without merit. In order for speech to be truly free, speech that conveys deeply offensive messages, including hate, must be protected. A free people have recourse to reason, evidence, outrage, and moral witness against such speech, but do not need to turn to coercive power to silence it.

Although it is hardly admirable to use hate speech merely because the First Amendment allows it, colleges and universities, alas, often label as hate speech expression that is perfectly serious, thoughtful, and communicative, simply because it offends the sensibility of a handful of students, or, more likely, a handful of administrators. Thus, for example, a discussion of whether or not women are physically and temperamentally suited for military combat would be an entirely protected and serious exercise of speech in the public arena, but on certain campuses it would be judged, by some, to express a hateful attitude toward women. If some administrators had their way, all such disagreement would be hate speech.

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