Seven Myths About Free Speech on Campus, Tested Against the Cases

Everybody on the quad has a theory of the First Amendment, and most of the theories were formed at a protest, not a law library. The dean who says "that's not protected." The student who says "they can't stop me." The cable guest who says "that's the law" with the serene confidence of a man who has never read it. They cannot all be right, and on a surprising number of points they are all wrong.

Here is the good news for those of us who like arguments with facts in them: the case law on campus speech is clearer than the shouting. The Supreme Court has decided a run of cases over fifty years, and they tell us what a public university can and cannot do, what a private one can and cannot, and where the lines run. So let's play a game. I'll state seven myths, from both sides, and test each against the cases. Where conservatives have the better of it, I will say so. Where they don't, I'll say that too, because an argument that ignores the other side's good cards loses the first time someone calls it.

One housekeeping note. This is a general discussion of the law, not legal advice for your situation. If you are in a real dispute, the place to start is your campus's written policies and, if needed, a lawyer who handles First Amendment cases.

Myth one: "There is a hate speech exception to the First Amendment"

You hear this from administrators and, strangely, from a lot of people who have never looked for the exception because they assume it must be there. It is not there.

The Supreme Court has recognized a short list of categories of speech that receive no First Amendment protection: incitement to imminent lawless action (Brandenburg v. Ohio, 1969), true threats (as in Virginia v. Black, 2003, which dealt with cross burning done to intimidate), and a few more. Hateful or offensive speech, as such, is not on the list. In R.A.V. v. City of St. Paul (1992), the Court struck down a city ordinance that banned certain expression because of the message it conveyed. And in Matal v. Tam (2017), a case about a band called The Slants and a trademark law that barred "disparaging" names, the Court held that the government cannot ban speech just because it is offensive, and the justices rejected the idea of a hate speech exception in so many words.

Now the caution that cuts the other way. Conduct that crosses into harassment can be punished. Under Davis v. Monroe County Board of Education (1999), a Title IX case, harassment that is severe, pervasive and objectively offensive can create liability for a school. A true threat is not speech the law protects. And a public university can enforce neutral rules about conduct. What it can't do is punish a student because the idea is offensive.

Verdict: false. A speaker can be punished for a threat, for incitement, or for harassment that meets the legal test. A speaker cannot be punished for hateful ideas as such.

Myth two: "Private universities are bound by the First Amendment"

This is a favorite of conservative students angry at a private school, and I understand the temptation, because the school is acting like a censor. But the First Amendment restrains the government. It says "Congress shall make no law," and through the Fourteenth Amendment it restrains the states. A private university is not the government, so the First Amendment does not apply to it of its own force.

That doesn't mean a private school can do whatever it pleases. Three things can hold it to a promise. First, its own written policies: when a private university advertises a commitment to free expression, and then punishes a student in a way that breaks it, students and lawyers sometimes bring contract claims. Second, state law: California's Leonard Law, for example, extends free speech protection to students at private nonsectarian colleges, and a few other states have taken steps of their own. Third, public pressure and the school's reputation, which count for more than most administrators admit.

Verdict: false as stated, true in spirit. A private school is not bound by the First Amendment, but it can be bound by its own promises and by some state laws. If you are choosing a school, read its speech policy before you enroll. That is the strongest protection you have.

Myth three: "Free speech zones are lawful limits on where students can speak"

Some campuses have designated a small area, sometimes a corner of a parking lot or a patch of lawn behind the student union, as the only place where students may demonstrate or distribute literature. The administration describes this as an ordinary matter of order.

The law starts from the principle that the government may impose reasonable restrictions on the time, place and manner of speech, but only if the restrictions are content-neutral, narrowly tailored to serve a significant interest, and leave open ample alternative channels. That test comes from cases like Ward v. Rock Against Racism (1989). A public university's open outdoor spaces, such as the quad, are traditionally where students gather and talk, and a policy that confines speech to a tiny zone, or requires weeks of advance notice for spontaneous expression, has a hard time meeting the narrow-tailoring requirement. Several federal courts have struck down or forced the revision of such policies, and many universities have changed them in settlements.

That said, a university may require a reservation for a large event, ask that a loudspeaker not interrupt a class, and keep a demonstration out of a lecture hall during an exam. Order is a legitimate interest. A rule that says everyone must speak in the zone is not a rule about order.

Verdict: mostly false. Reasonable, content-neutral rules about time, place and manner are lawful. A blanket "zone" that confines campus-wide student expression to a small area is vulnerable, and many have lost.

Myth four: "A mob can veto a speaker"

Here the cases are on the speaker's side, and the myth is on the mob's. The idea is that if a crowd will be loud and angry enough, the university has no choice but to cancel the event, and the speaker has no recourse.

The relevant case is Forsyth County v. Nationalist Movement (1992), which involved a county ordinance that let an official set the fee for a parade permit based on the expected cost of policing a hostile crowd. The Supreme Court struck it down. It held that speech cannot be financially burdened because of how others are expected to react to it. The principle, sometimes called the heckler's veto, is that listeners' hostility cannot be a reason to silence the speaker.

On a campus, a public university has a duty to protect the speaker and to punish those who use force, not to cancel the speaker. That duty has limits, since police resources are real and a university may weigh the safety of an event honestly. But "we expected protests" is not a free pass. The university that cancels because of the mob has handed the mob a tool, and it will use it again.

Verdict: false. A hostile reaction is not a legal reason to cancel a speaker at a public institution. The remedy is to manage the crowd, not to silence the speaker.

Myth five: "A professor's classroom speech is unlimited"

Some professors and their defenders think that academic freedom is a blank check. Some administrators, from the opposite direction, think professors are ordinary employees who can be disciplined for whatever they say. Both overstate.

In Keyishian v. Board of Regents (1967), the Court called academic freedom "a special concern of the First Amendment." That is a high-water mark for the professor. But in Garcetti v. Ceballos (2006), the Court held that when public employees speak as part of their official duties, they are not speaking as citizens for First Amendment purposes, and their employer can discipline them for it. Justice Kennedy's opinion for the Court expressly left open whether that rule applies to scholarship and teaching at a university. So the answer for a public university professor depends on the circuit and the facts, and the Supreme Court has not settled it.

For students, the picture is different and cleaner: a student's speech in class is subject to the instructor's authority over the course, which means a professor can require students to address the assigned topic and can grade the quality of the work. What the professor cannot do is penalize a student for the viewpoint expressed.

Verdict: false. Professors have real protection, but not unlimited protection, and the law for public university faculty speech in the classroom is unsettled. Know your campus's written academic freedom policy.

Myth six: "A university may refuse to recognize or fund a group because it dislikes the message"

Administrators sometimes behave as if the power to recognize student groups is the power to pick winners. The cases say otherwise, and this is where conservative students have a clear record of wins.

• In Healy v. James (1972), a state college refused to recognize a local chapter of Students for a Democratic Society, in part because it disliked the group's views and its national affiliation. The Court held the college could not deny recognition on that basis, and that the burden was on the school to justify the denial, for example by showing the group would disrupt the campus or refused to follow reasonable rules.
• In Papish v. Board of Curators (1973), a graduate student was expelled for distributing a campus newspaper that contained a political cartoon and a headline many found vulgar. The Court said the mere dissemination of ideas, however offensive to good taste, may not be shut off on a state campus in the name of decency alone.
• In Widmar v. Vincent (1981), a university that opened its facilities to student groups tried to exclude a group of religious students. The Court held that once it opened the forum, the university could not exclude a group because of the religious content of its speech.
• In Rosenberger v. Rector and Visitors of the University of Virginia (1995), the university paid the printing costs of dozens of student publications but refused to pay for a Christian student magazine. The Court held 5-4 that this was viewpoint discrimination.
• In Board of Regents v. Southworth (2000), the Court upheld the use of mandatory student fees to fund student groups, so long as the funds are allocated without regard to viewpoint.

The pattern is clear. When a public university opens a forum, it must run it neutrally.

Verdict: false. Public universities may set neutral rules, but they cannot pick winners on viewpoint. For the practical side, see A Conservative Student's Playbook for Standing Up for Speech on Campus.

Myth seven: "Conservative and religious student groups always win these fights"

Let me close with a myth our side tells itself. After Widmar and Rosenberger, it is easy to believe that the Constitution always guarantees a religious or conservative group the right to run itself as it likes on a public campus. That isn't so.

In Christian Legal Society v. Martinez (2010), a public law school in San Francisco had an "all-comers" policy: any registered student group had to accept any student who wanted to join and to hold office. A Christian group required its leaders to share its religious beliefs, and the school withheld recognition. The Supreme Court, in a 5-4 decision, upheld the policy as a reasonable and viewpoint-neutral condition of a limited forum. Four justices dissented.

I think the dissent had the better argument, since a rule that forbids a religious group from choosing leaders who share its faith burdens the group's ability to exist. But the case shows that a neutral rule, applied to every group, can survive even when it is hard on one. The practical lesson for a campus club is to read the recognition policy before you register, and to know whether your school has an all-comers rule.

Verdict: false. Speakers and groups win on viewpoint discrimination; they do not win every time a neutral rule inconveniences them.

What the pattern teaches

Step back and look at the seven. Three lessons run through them.

1. The line is neutrality. A public university may regulate the manner of speech with neutral rules. It may not regulate the message. Almost every campus speech case turns on whether a rule was about how or about what.
2. Public and private are different games. The First Amendment binds the first, and promises and state law bind the second. A student who does not know which kind of school she attends is playing a game without the rulebook.
3. Both sides overclaim. The administrator who says there's a hate speech exception is wrong, and so is the student who says nothing at all can be done about a disruptive crowd. The truth is in the cases.

For the broader history, from Berkeley in 1964 to the Chicago principles, see Campus Free Speech From Berkeley in 1964 to the Chicago Principles. For the bigger set of cases beyond the campus, see Eight Supreme Court Cases That Explain What the First Amendment Protects and Seven Things Americans Get Wrong About the First Amendment. If you want to start a club, starting a conservative club on campus, a checklist from charter to speaker walks through the steps. And the pressures that make these cases arise are laid out in Seven Free Speech Myths, From Hate Speech to Shouting Fire in a Theater.

The bottom line

• There is no hate speech exception. Threats, incitement and qualifying harassment can be punished; offensive ideas cannot, at a public university.
• The First Amendment binds public universities and not private ones, but a private school can be held to its own promises and to some state laws. Read the policy before you enroll.
• Time, place and manner rules must be content-neutral. A tiny "free speech zone" for the whole campus is vulnerable, and a hostile crowd is not a legal reason to cancel a speaker.
• Public universities must run recognition and funding without viewpoint discrimination (Healy, Widmar, Rosenberger), but neutral rules such as an all-comers policy can survive (Christian Legal Society v. Martinez).
• If your rights are violated, document it, use the school's appeal process first, and talk to a lawyer or a First Amendment legal group.