On October 9, 2017, Representative Briscoe Cain, was asked to leave the Thurgood Marshall School of Law campus after having been invited to speak by the Federalist Society, a student organization. Assume the speaker had been allowed to continue speaking and students/staff continued to shout/chant over him.
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
That's it, forty-five words. This language restricts government’s ability to constrain the speech of citizens. That's the entirety of our Constitution's First Amendment, the central animus of our American way of life that gets dragged out every time someone's banned from Twitter. There's a lot going on in those few sentences, and it's important to know when and how it applies to common situations — and, equally as important, when it doesn't.
However, the prohibition on abridgment of the freedom of speech is not absolute. Even speech that enjoys the most extensive First Amendment protection may be subject to “regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.” Furthermore, speech may be more easily regulated depending upon the location at which it takes place.
Last October, TMSL was a hotbed for political controversy when Rep. Briscoe attempted to speak at a TMSL Federalist Society event. Cain’s frequent unapologetic speech promulgating conservative views were not met with acceptance on the historically Black university’s campus. And due to adversarial power players coupled with an abrupt and eleventh-hour cancellation, the disastrous end was positioned for calamity from the very beginning.
Seen in its best light, Cain’s cancellation was a precautionary measure in order to secure the safety of faculty, students, and visitors. University administration were interviewed and waxed philosophical about the prevention of possible violent protests. Alternatively, the cancellation was a unlawful nix of a public speech, in a public forum, by a public university. Ultimately, a violation of First Amendment rights. The controversy at TMSL was not the first, and will likely not be the last issue. Campuses like University of California- Berkley and Texas A&M University have had litigious clashes with alt-right provocateurs like Milo Yiannopoulos and Richard Spencer. Both men were invited to speak and share their platforms to small, similarly aligned groups; yet, similar to Cain’s TMSL event, rowdy protesters assembled and their events were cancelled. Both universities cancelled events in fear and in anticipation that the speakers’ vitriolic rhetoric would result in violent confrontations.
These frequent instances of restricted free speech and unconstitutional speech codes on campuses have raised serious questions about the role of free expression in academia. The controversy about free speech in American universities bespeaks fear that the next generation of Americans will not have been educated to engage in public debate, which necessarily entails encounter with alien and frequently outrageous perspectives. That is a problem well worth addressing, especially as our politics grows more diverse and more polarized. Universities do have a great responsibility to educate students for citizenship in a country violently split along lines of ideology and identity.
The law of the First Amendment and the principles of academic freedom are clear and long established. The Supreme Court repeatedly has said that the First Amendment means public institutions cannot punish speech, or exclude speakers, on the grounds that it is hateful or deeply offensive. This includes public colleges and universities.
1. Under what circumstances, if any, may public schools ban/remove people/
organizations from exercising their right to free speech?
The law is clear that a public university may not exclude a speaker based on his or her views, nor may students or faculty be punished for the views they express. From this, he concludes that universities are justified in excluding outside speakers that do not serve the educational mission of the campus.
When a speaker is invited their First Amendment rights cannot be violated. However, this does not mean the university’s administration cannot place regulations on a speech, like dictating the time, place, venue and suggestions for subject matter. It just means it cannot be done so in a way that discriminates against a certain point of view. In fact, speakers are almost always invited to campus because of their viewpoint, because someone thinks they have something worthwhile to say.
In 1968, the Supreme Court ruled in Tinker v. Des Moines Independent Community School District that non-disruptive speech is permitted in public schools. See Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 509-10 (1969). Four students were suspended for wearing black armbands in protest of the Vietnam War, and were told to remove they could not return to school until they removed the armbands. Id. at 504. The constitutionality of the school’s position was upheld in district court “on the ground that it was reasonable in order to prevent disturbance of school discipline.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 258 F. Supp. 971, 973 (S.D. Iowa 1966). The students, represented by the ACLU, were ultimately allowed to wear the bands as our Justices ruled that they should not have to "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Id. at 504-05. The Supreme Court ruled that in order to justify the suppression of speech, the school officials must be able to prove that the conduct in question would "materially and substantially interfere" with the operation of the school. In this case, the school district's actions evidently stemmed from a fear of possible disruption rather than any actual interference. Id. at 513.
Since then, fragments of law from the Tinker decision have been relitigated. In Morse v. Frederick, the Supreme Court concluded that the "substantial disruption" rule of Tinker was not and could not be the sole basis for restricting oppositional speech—in Morse, pro-drug banners—on public school campuses. Morse v. Frederick, 551 U.S. 393, 409-10 (2007). The Court considered that special, nuanced characteristics of each school’s environment and the governmental interest in stopping the specific communicated speech should be examined closely. Id. at 408-09. The Court ultimately held that schools administration were entitled to take precautionary steps to safeguard those entrusted to their care from speech that could reasonably be regarded as encouraging illegal drug use. Id. at 409.
Applying the cases at hand, it appears as though public schools are permitted to remove organizations if their potential speeches will create a hostile environment. Moreover, although the Court ruled in 1942 that the First Amendment does not protect “fighting words.” See Chaplinsky v. New Hampshire, 315 U.S. 568, 574 (1942). The First Amendment does not protect behavior on campus that crosses the line into targeted harassment or threats, or that creates a pervasively hostile environment for vulnerable students. But merely offensive or bigoted speech does not rise to that level, and determining when conduct crosses that line is a legal question that requires examination on a case-by-case basis. Restricting such speech may be attractive to college administrators as a quick fix to address campus tensions.
In conclusion, the U.S. Supreme Court has spoken on the issue of campus free speech in a number of cases. Although the First Amendment does not force government to provide a speaker’s platform to anyone, it does prohibit government from discriminating against speech based on the speaker’s viewpoint. Therefore, while no public colleges or universities are legally obliged.
Because Texas public colleges and universities are agencies of the state of Texas, they are as obligated to uphold the First Amendment as any other government agency. For this reason, while administrators are free to invite whomever they choose to appear and speak on campus, they are constitutionally prohibited from mandating which speakers student groups may decide to invite on their own. To do otherwise, says the Court, constitutes viewpoint discrimination.