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Are college campuses restricting free speech?

Potential NC legislation could target so-called “hecklers” on college campuses.

Photo by Walt Jabsco

The First Amendment to the United States Constitution safeguards many rights of United States citizens, including the right to freedom of speech.  These First Amendment protections apply to states, as well as public university campuses, through the Fourteenth Amendment.  While most speech is protected speech, there are certain categories that will not be protected including fighting words, hate speech, and true threats.  These types of speech create a danger to the speaker as well as others, giving the need for the government to regulate this speech.

This First Amendment right should be especially valued at universities, where students from many backgrounds are brought together to learn and be expressive.  Part of the college experience is expanding intellectual horizons, and the threat of free speech could diminish that experience.  When students do not feel free to speak their mind, other students miss out on what others have to say, which could be a valuable learning opportunity.

Recently an incident at the University of Missouri involving student and faculty protests regarding racial slurs brought the free speech on college campuses into the public eye.

Free Speech has become a popular issue on college campuses nation-wide.  Both students and faculty have complained against students’ free expression, especially when it revolves around racial issues.  Recently, an incident at the University of Missouri involving student and faculty protests regarding racial slurs brought the free speech on college campuses into the public eye.  When the university president failed to take action, he was ousted from the school.  During the protest, students and faculty attempted to keep all press, including other Missouri students, out of their protest zone.  One professor was fired for her actions during these protests, which included her calling for some “muscle” to remove a student photographer.

With public universities, the school does have some rights to shut down student speech.

Outside of the categories of speech, when the Government also serves as the educator, there are times when they can step in and shut down speech.  Therefore, with public universities, the school does have some rights to shut down student speech in certain instances.   As stated in Tinker v. Des Moines, a school may prohibit or punish speech that creates a material or substantial disruption of school operations.  School is an important educational environment and the free speech rights must be balanced with the disruption some speech could cause.

Schools also have more control over speech that is considered to be “school sponsored,” such as a student newspaper.  Hazelwood v. Kuhlmeier ruled that schools could punish speech that is lewd, vulgar, or offensive when it is something that is school sponsored.  However, schools cannot regulate or punish based on viewpoint, unless it falls under the material disruption test from Tinker.

Those who oppose…say that it suppresses speech…

Lieutenant Governor Dan Forest has introduced a proposal that would require the seventeen public universities in NC to create punishments for “those who interrupt the free expression of others.”  Those who oppose this potential legislation say that it suppresses speech just as much as disruption by potential hecklers.  “If a speaker has been invited by a student group, another in the university community does not have the right to interrupt that speech, shout over the speaker, or otherwise prevent others from listening to the speech,” Forest’s office said in a statement.

Protesting speakers invited by student groups and universities have also become an issue on college campuses.

Protesting speakers invited by student groups and the universities have also become an issue on college campuses.  Protests have led to groups cancelling speakers, such as feminism critic Suzanne Venker, who was supposed to speak at Williams College.  Protesters also prevented both Condoleezza Rice and former Attorney General Eric Holder from giving commencement speeches.

Dan Forest wants to prevent this from becoming an occurrence on North Carolina campuses.  The concept here is if someone is shutting down an event, schools may have a duty to protect the integrity of the event and the speakers.  The lieutenant governor’s ideas follow protests, mainly before the state’s university governing board.

The problem lies with where the line would be drawn.  At what point is someone truly exercising his or her free speech rights, and at what point would it become heckling a speaker?  It is important to remember that protesters have First Amendment rights just as much as the invited speakers, and these rights must be balanced.  The proposal would need to make clear at what point heckling would become a “material disruption” so that protesters know ahead of time.   Lee Rowland, a free speech attorney with the American Civil Liberties Union, said, “Protecting speech sounds really good, but the text of those bills matters immensely.”

Different steps have been taken to deal with speech on College Campuses.

Some colleges have gone so far as to create “free speech zones” that confine expressive activity.  Free speech advocates argue the zones curtail freedoms.  Approximately one in six U.S. schools have created free speech zones on campus.  North Carolina schools with “free speech zones” include UNC-Pembroke, Appalachian State University, and East Carolina University.  The ECU free speech zone policy states that all assemblies and public forums must take place in the “designated public forum” defined as a four-sided green patch of land.  That is the only place where it is allowed, and even then there are other restrictions.  These restrictions include no amplified sound, only one event or speaker at a time, and these activities cannot interfere with pedestrian traffic.   While this may protect from unwanted off-campus activities coming on campus, it also hinders students from being heard.  On a large campus, almost any event has the potential to interfere with pedestrian traffic, and without amplified sound, only a limited number of people can hear what is being said.

“When a college had a free-speech zone, what they’re really saying is that the entire rest of the college is a non-free-speech zone,” said executive director Frank LoMonte of the Student Press Law Center, which advocates for student First Amendment rights.  These restrictions give the impression that speech is only tolerated in certain times and places, which does not mesh with the college campus atmosphere.

So far, officials with the University of North Carolina system have been shut out of shaping Forest’s proposal, which he also has said should include requiring public universities to remain officially neutral on controversial issues.  Perhaps the university system should have a say in the proposal, since they are directly affected, and could make suggestions based on their students and experience.  Neither Forest nor his staff “have articulated to us directly why he feels such a law is needed or sought our input on a draft bill,” said Joni Worthington, a spokeswoman for the public university system.  There has also been no official press release on the Lieutenant Governor’s official website.

Although it is unknown what will happen this this proposed legislation, the potential problems it could create under the First Amendment, and the ramifications against North Carolina college students, should make people take notice.

Katelyn Heath, Ethics Editor Emeritus
About Katelyn Heath, Ethics Editor Emeritus (20 Articles)
Katelyn Heath is a 2017 graduate of Campbell Law School and served as the Ethics Editor for the Campbell Law Observer during the 2016-2017 academic year. She is from Salisbury, North Carolina and graduated from UNC-Charlotte with a Bachelor of Arts in History and Criminal Justice in 2014. Following her first year of law school she attended Baylor Law Schools Academy of the Advocate in Scotland. She is also currently working for Marshall and Taylor PLLC, a local family law firm.
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