Lena Shapiro is a clinical assistant professor of law and the inaugural director of the College of Law’s First Amendment Clinic, supported by the Stanton Foundation. Shapiro spoke with News Bureau business and law editor Phil Ciciora about free speech issues on college campuses.
Most people think that the “freedom” implied in “free speech” means that it’s an absolute right with no consequences for the speaker. Is that true, or is free speech more of an attenuated right than an absolute right?
There is legal freedom and there is practical freedom.
Legally, there are categorical exceptions to the First Amendment, but they are narrowly defined. The exceptions include:
- Violence, such as physically assaulting others, but also includes confining someone within a given space.
- True threats, or a “serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals” with proof that “the [speaker] had some subjective understanding of the statements’ threatening nature,” as defined in the 2003 U.S. Supreme Court case Virginia v. Black and clarified earlier this summer in Counterman v. Colorado.
- Intimidation, which is a type of true threat, where a speaker “directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death,” according to Justice Sandra Day O’Connor’s plurality opinion in Virginia.
- Incitement, which is speech that is both “directed to inciting or producing imminent lawless action and is likely to incite or produce such action,” per the test established in 1969’s Brandenburg v. Ohio.
- Discriminatory harassment where the conduct in question must be targeted, unwelcome and “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit,” the standard set in 1999’s Davis v. Monroe County Board of Education. This is a high bar, but it’s certainly not insurmountable.
- The Heckler’s Veto, in which a speaker is silenced by those who disagree with their speech or is essentially “shouted down.”
Practically speaking, the exceptions for the type of speech that might be subject to criticism – including, for example, controversial speech that would lead to an employer rescinding a job offer – are not so narrow.
How are those restrictions being applied on college campuses?
How those restrictions are being applied on college campuses varies widely, especially in the aftermath of Oct. 7.
As we saw during the U.S. House Committee on Education and the Workforce hearing “Holding Campus Leaders Accountable and Confronting Antisemitism,” university administrators were seemingly at a loss for how to deal with the free speech issues facing their campuses on a daily basis.
There was significant commentary on the perceived hypocrisy of leaders of institutions who previously relied on “speech codes” at their respective institutions, at the expense of free speech, to clamp down on speech for certain disfavored views, yet were eerily silent and began to defer to the First Amendment when they were more sympathetic to the speech at issue.
This highlights the general problem with the state of “speech codes” on university campuses – they are selectively enforced based on the bias of the administrator. Consequently, there has been a call for reform of speech and harassment policies at universities nationwide, which would effectively balance students’ right to freedom of expression with the right to learn free from discriminatory harassment.
What is the difference between free speech and hate speech? Is there a constitutional test that distinguishes one from the other?
Unlike the exceptions I’ve outlined, there is not a “hate speech” exception to the First Amendment. So, most expressions commonly identified as “hate speech” are protected by the First Amendment and cannot lawfully be censored, punished or unduly burdened by the government – including by public colleges and universities.
In the context of higher education, what is the difference between free speech and academic freedom?
Academic freedom is a principle that supports the freedom of teachers, researchers and students to pursue knowledge and research without unreasonable interference or restriction from law, institutional regulations or public pressure. In terms of free speech, that means that a professor’s speech at a public university, when relevant to the subject material of a class and when advancing a legitimate academic purpose, is protected by the First Amendment.
But some universities have sought to rein in the bounds of academic freedom. Generally speaking, the U.S. Supreme Court held in the 2006 case Garcetti v. Ceballos that the speech of public employees is not protected if it is spoken as part of their official duties. However, the court made a point not to rule on whether the Garcetti framework would apply to academic freedom because it didn’t fully account for the unique “constitutional interests … involving speech related to scholarship or teaching.”
As a result, the circuit courts have been very divided on what the limits of the academic freedom exception are, and the Supreme Court has recently been petitioned to hear a case that would clarify this issue in the next term.
Does restricting speech pose a chilling effect on another First Amendment right – the right of peaceable assembly? Is that why there are “free-speech zones” at certain places?
Colleges may implement “free-speech zones” for a number of legitimate reasons, such as campus safety or ensuring that noise doesn’t interfere with class instruction – or for illegitimate reasons, such as to stifle speech by limiting it to tiny spaces on the fringe of campus.
All of these “time, place, and manner” regulations must be viewpoint- and content-neutral; narrowly tailored in service of a significant governmental interest; and leave open ample alternative channels for expressive activity.
Those restrictions are in place to prevent a speech-chilling effect.