Protesters on college campuses have often cited the First Amendment as shelter for their tactics, whether they were simply waving signs or taking more dramatic steps, such as setting up encampments, occupying buildings or chanting slogans that critics say are antisemitic.
But many legal scholars, along with university lawyers and administrators, believe at least some of those free-speech assertions muddle, misstate, test or even flout the amendment, which is meant to guard against state suppression.
Whose interpretation and principles prevail, whether in the courts or among the administrators in charge of meting out discipline, will do much to determine whether protesters face punishments for campus turmoil.
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The First Amendment doesn’t automatically apply at private schools.
Public universities, as arms of government, must yield to the First Amendment and how the courts interpret its decree that there shall be no law “abridging the freedom of speech” or “the right of the people peaceably to assemble.”
But private universities set their own standards around speech and protest.
To be sure, private universities tend to embrace free expression more than, say, private businesses. Those policies and approaches, though, are driven by principles such as academic freedom and the marketplace of ideas, not constitutional law.
Columbia University, a hub through this round of campus protests and the scene of an enormous police response Tuesday night, has not forbidden all speech. But its current policy includes a set of rules, such as permissible demonstration zones and preregistration of protests, that the university says are intended to ensure safety while promising that “all members of the university community have the right to speak, study, research, teach and express their own views.”
Legal scholars have said that while the university’s approach may anger students and faculty members, and may even curtail speech on campus, Columbia faces far less legal risk than any public school might.
‘Time, place and manner’ is a crucial standard.
Academic administrators and the courts alike often find comfort in frameworks, and the notion of “time, place and manner” is deeply embedded in case law involving free speech.
Under that doctrine, governments may sometimes regulate logistical details associated with speech. The doctrine is not a blank check for state power over speech — a government must, for example, apply regulations without discriminating against a viewpoint — but it allows for some restrictions in the pursuit of public safety and order.
For university leaders, the doctrine offers a template of sorts for protest policies that can survive legal scrutiny and withstand political backlashes.
“We always thought that time, place, manner — if applied in a fair, open and completely neutral way — was the best mechanism to both allow protest and also to ensure that protest didn’t disrupt academic programming and activities,” said Nicholas B. Dirks, a former chancellor of the University of California, Berkeley, which has one of the richest traditions of protest in higher education.
But, Dirks added, “That’s easier said than done.”
Another important test is ‘imminent lawless action.’
The Supreme Court, soon after World War I, delivered a First Amendment ruling that included the phrase “clear and present danger.” About 50 years later, the court adopted an approach focused on “imminent lawless action.”
That test is important in gauging whether, for example, the First Amendment protects an antisemitic chant. If the rhetoric is intended to provoke an “imminent lawless action” and is likely to do so, it is not considered constitutionally sound. But a chant that fails any part of that standard is protected, meaning that even some grotesquely uncomfortable, distasteful speech may not be subject to discipline by the government.
“The tricky part is when the conduct and the speech are close to the line,” said Timothy J. Heaphy, who was a U.S. attorney during the Obama administration and later the university counsel at the University of Virginia.
Some threatening behavior on campuses is illegal under federal civil rights law. Two men, for instance, pleaded guilty to using a threat of force to intimidate Black students and employees at the University of Mississippi after they placed a noose around a campus statue of James Meredith, the first Black student to enroll there, in 2014. One of the men was sentenced to prison.
Are encampments covered by the First Amendment?
Although some campus protesters consider their encampments to be a form of speech, the courts have held that restrictions on overnight camping and the like can meet the time, place and manner test, even on public property.
In a 7-2 ruling in 1984, for instance, the Supreme Court ruled that the National Park Service could refuse a request for protesters to spend nights in “symbolic tents” near the White House under its regulations against sleeping in places that were not classified as campgrounds.
“The regulation forbidding sleeping meets the requirements for a reasonable time, place, or manner restriction of expression,” Justice Byron White wrote in his opinion.
“The regulation is neutral with regard to the message presented, and leaves open ample alternative methods of communicating the intended message concerning the plight of the homeless,” he added.
A court would never see a building occupation like the one this week at Columbia, Heaphy predicted, as a protected First Amendment activity.
“Students occupied the building,” he said. “That’s conduct. That’s not going to last.”
Can universities change policies?
Generally, yes, but, for public universities, the First Amendment still applies.
Again, private universities have more discretion.
At the University of Chicago, President Paul Alivisatos noted this week that while encampments violate school rules, administrators “may allow an encampment to remain for a short time despite the obvious violations of policy.”
Floating that possibility, he cited “the importance of the expressive rights of our students” and said that “the impact of a modest encampment does not differ so much from a conventional rally or march.”
But he signaled the university would not allow its policy to be eviscerated, and he urged students involved with the encampment “to instead embrace the multitude of other tools at their disposal.”
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