Controversies over freedom of speech on college campuses are nothing new, but they are arising now with great frequency. The general principles are clear, though novel and difficult questions are constantly arising.
The core of freedom of speech is that all ideas and views can be expressed. The Supreme Court repeatedly has made clear that the government never can prevent or punish or deny benefits for speech based on its viewpoint, even if the speech is deeply offensive. As many have observed, we don't need freedom of speech to protect the messages we like; we would let those happen anyway.
But free speech is not absolute. Long ago, Justice Oliver Wendell Holmes explained that there is no right to falsely shout "fire" in a crowded theater. During the past 75 years, the Supreme Court has explained that there are some categories of speech that are unprotected by the First Amendment. For example, the government can prohibit and punish child pornography or false and deceptive advertising.
Some types of unprotected speech are especially relevant to campuses. The Supreme Court has held that speech that incites illegal activity is not protected by the First Amendment. The Court, however, has been restrictive in terms of what constitutes incitement. In order to be punished, the speech must pose a substantial likelihood of imminent illegal activity and must be directed at advocating imminent illegality.
Also, speech that constitutes a "true threat" is not constitutionally protected. Although the Supreme Court still has not clearly defined this category, the idea is that there is no First Amendment right to use speech to cause a person to fear for imminent harm to his or her physical safety.
Speech that rises to the level of harassment also can be prohibited and punished. In the workplace, for example, an employer can be held liable for creating a hostile work environment. The law is unclear as to when speech on campus constitutes harassment, but generally it must be directed at a person or so pervasive as to materially interfere with educational opportunities based on race, sex, religion, or sexual orientation.
It is important to note that hate speech is safeguarded by the First Amendment and does not constitute a category of unprotected speech. In the late 1970s and early 1980s, every court to consider the issue held that the Nazi party had the right to march through Skokie, Illinois, a predominately Jewish suburb of Chicago. In the early 1990s, more than 350 colleges and universities adopted hate speech codes and every one to be considered by a court was declared unconstitutional. More recently, last year, a federal court ruled that Auburn University acted unconstitutionally when it tried to exclude white supremacist Richard Spencer from speaking.
Hate speech causes serious harm and some prominent scholars have argued that it should be banned on campuses. But courts have found such laws and speech codes to be inherently unduly vague in defining what constitutes hate speech. Besides, hate speech expresses an idea and view, albeit a very offensive one.
Campuses can have time, place and manner restrictions with regard to speech, so long as they leave open adequate alternative places for communication. For example, colleges can prevent demonstrations in or near classroom buildings while classes are in session. Also, campus officials can require that especially controversial speakers appear in auditoriums where tickets can be required and metal detectors can be used to ensure safety. This is what UC Berkeley did in September 2017, when Ben Shapiro spoke on campus without disruption or incident.
There can be great costs to campuses in protecting speech while ensuring safety. I have heard Berkeley Chancellor Carol Christ estimate that the campus spent approximately $3.9 million last fall in security costs to ensure speech and protect safety. The law is unclear as to the point at which a school can say it simply cannot afford safety costs and must prevent a speaker when there is a significant risk of violence.
One issue arising with increasing frequency is where students and others try to prevent speech by shouting down a speaker. Last fall, disruptors prevented an ACLU lawyer from speaking at William and Mary Law School and University of Oregon President Michael Shill was kept from delivering a state of the campus talk there. There is no First Amendment right to use speech to silence others. Otherwise there always could be a "heckler's veto," and speech would occur only if no one cared enough to shout it down.
Overall, we must remember that free speech occurs on college campuses across the country every day without incident. Every time I walk across the Berkeley campus, I see groups protesting about something. That is the way it should be. But that said, there are strong feelings about what should and shouldn't be allowed, how speech should be regulated and what campuses can do.
It is not surprising that in these deeply polarized times, issues of free speech are arising with great frequency.
Erwin Chemerinsky is dean of the University of California, Berkeley School of Law and co-author of "Free Speech on Campus." The University of Alaska Anchorage will host a forum on free speech Oct. 12, at which Chemerinsky will speak.
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