It is common for universities to get caught in the middle of conflicting expression because of polarized bipartisan advocacy on campus. Oftentimes, political conflicts on campus can escalate and become threats to campus safety. In order for an institution to protect students and maintain campus safety, it must, to some degree, place limits on speech to prevent it from becoming threatening.
A major challenge faced by universities is to promote a neutral platform for free speech while regulating disruptive speech. The job of universities is to discern between not just free and hate speech, but also discourse and disruptive speech. To do so, it is imperative that universities identify what constitutes disruptive speech in order to implement constitutional speech codes. Since schools are limited-purpose public forums (public universities in particular), it is the institution’s priority to enforce the primary use of the space and to eliminate any disturbances to its academic functioning. The O’Brien Test, established in 1968, allows for the imposition of content-neutral (time, place and manner) restrictions on speech to retain the primary function of the institution and to maintain a neutral platform of expression on campus. https://www.oyez.org/cases/1967/232
Universities may not, however, bar student advocacy organizations simply because they believe it may cause violence. In Healy v James (1972), Central Connecticut State College refused to recognize a chapter of Students for a Democratic Society. (https://www.mtsu.edu/first-amendment/article/687/healy-v-james) When the case was taken to the Supreme Court, there was a unanimous decision in favor of the student chapter. This reinforces the notion that speech cannot be barred for content-based reasons, and that only speech that clearly incites violence or is a proven disruption can be regulated.
In this current political climate, extremists often attack the beliefs of others in a derogatory yet nonviolent way. This form of speech, defined as hate speech, is protected under the First Amendment, but free expression is not protected if it causes imminent harm and contradicts societal morality. Since universities cannot bar or chill speech based on its content, they must tolerate hate speech that is not expressed in a disruptive way and does not incite violence. It is within the rights of citizens to express unpopular opinions in the marketplace of ideas, which unfortunately includes ideas that may be found offensive or profane by society.
Since public universities cannot prohibit offensive speech, it is imperative for speech policies on campus to maintain a constitutional balance of freedom of expression and safety. Essentially, it is the duty of public universities to promote all peaceful forms of expression. To define this, many universities use speech codes, which are not always constitutional. Speech codes must be content-neutral to be considered constitutional forms of speech regulation. It is also the university’s responsibility to implement safety and crime control enforcement during on-campus protests.
There are many supervision mechanisms that universities can implement that are not as restraining as speech codes. For instance, free speech zones have recently caught public attention because they have been implemented in well-known schools such as the University of Colorado Boulder, Florida State University, Auburn University, Stanford University and many smaller California State (CSU) schools. To be specific, “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.” https://www.mtsu.edu/first-amendment/article/960/free-speech-zones
These zones are not exempt from all restrictions of speech, as incitement of violence and destructive or dangerous behavior is still prohibited. What sets these zones apart from other areas on campus is that the primary function of that space is speech, unlike the rest of campus, which serves the primary purpose of functioning as an academic institution. This means that no speech can disrupt the primary purpose of free speech zones, so any speech that does not threaten safety or incite violence is permitted in this forum, including offensive speech.
Campus speech issues have been rising with the growth of political polarization. It is important to grant everyone their inalienable right to free speech, even today, when a great deal of political speech triggers a quarrel between the two sides. Despite all the challenges faced by universities, the most effective speech policies are content-neutral, with the exception of policies regarding speech that incites violence. This polarized climate will not go away in the foreseeable future, so it is crucial to maintain a democratic platform that provides equal rights of expression to everyone.
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Keren Blaunstein is a contributor for The Daily Campus. He can be reached via email at firstname.lastname@example.org.