The application of the First Amendment to public universities1 has long been a source of confusion and frustration for both universities and courts. In particular, application of the First Amendment to student publications such as newspapers, magazines, and yearbooks has led to a great deal of litigation and controversy. The protection afforded by the First Amendment to these publications at the university level is extremely unclear and the circuit courts' inconsistent treatment of the college press has further confused the issue.
How should the First Amendment apply to public universities? An instinctive response is that a college student should enjoy the same, if not greater, protections than the average citizen. After all, "[t]he very mission of a college or university depends upon broad latitude for viewpoints in the pursuit of truth and understanding. So of all places in society where people may express controversial views, should not the university campus be the most open and speech the freest?"2 In general, courts have also recognized the importance of First Amendment protections for public school students. For instance, the Supreme Court has held that "[i]t can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."3
On the contrary, the schoolhouse gate has historically served as a barrier between American students and full protection under the First Amendment, as the First Amendment rights of minor students in public schools "are not automatically coextensive with the rights of adults."4 Courts have recognized a limitation on students' First Amendment rights "in light of the special characteristics of the school environment."5 Much of this has to do with the age of the students, for in many situations minors are not entitled to the same legal rights as those recognized as legal adults.6 Even speech on college campuses, however, has been more closely regulated than speech in the community at large because "the values inherent in certain campus communities impose on speech a higher standard than does society at large."7
Students at public colleges and universities thus occupy a confusing middle ground in terms of First Amendment application. These students are usually legal adults, yet they remain in an educational environment. Just as college serves as a developmental stepping-stone between childhood and adulthood, the legal status of college students is often one of finding middle ground between the rights of children and the rights of adults who are no longer enrolled in school. For this reason, the status of these students under the First Amendment warrants special analysis to determine whether courts should classify students at public colleges and universities as children, as adults, or as holding an intermediate status.
The extent to which freedom of the press is protected on college campuses is a difficult issue to analyze because of the variety of forms that speech may take in the college community. It is critical to note the distinction between student speech connected to a university simply because the speech is uttered there and speech connected to a classroom environment or to a university-supported extracurricular activity. For example, there is a great difference between a speech given by a student in the middle of the campus and an editorial written by a student and printed in a university-supported student publication. Courts classify the former as political speech unconditionally protected by the First Amendment, but the latter's status is much less clear. Thus, when courts consider student-produced publications at the university level, they consistently hold that "independent" or "underground" campus media-media that is produced by students and distributed on campus but otherwise has no affiliation with the university-must be free from regulation by a university. …