Academic journal article Journal of Law and Education

Chalk Talks: The Importance of Free Speech on Public Campuses and the Restriction of Free Speech on University Campuses Due to Safety Concerns

Academic journal article Journal of Law and Education

Chalk Talks: The Importance of Free Speech on Public Campuses and the Restriction of Free Speech on University Campuses Due to Safety Concerns

Article excerpt

I. INTRODUCTION

The exchange of ideas is a core value of America's colleges and universities, making freedom of speech on college campuses essential to achieving that goal. In fact, courts and legislatures have stressed the importance of protecting free speech on university campuses.1

Courts have demonstrated their commitment to campus free speech by routinely allowing challenges to speech codes enacted by colleges and universities as a violation of students' First Amendment rights. "Speech Codes" refer to "any university regulation or policy that prohibits speech that would be protected by the First Amendment in society at large."2 However, today's hostile political climate and increasing polarization have threatened students' free speech rights and have forced legislatures and courts to reexamine the issue of speech on public college and university campuses.3

Due to violent outbursts during the speeches of controversial conservative speakers and protest on college and university campuses across the United States, many school administrators have opted to either postpone or cancel controversial speakers for alleged safety concerns. In particular, the University of California, Berkley, which has had a longstanding history of free speech protest, has recently canceled several controversial speakers due to threats of violence and actual violence.4 This restriction by school administrators has left universities subject to law suit.5 Students have alleged that the cancellation of controversial speakers is a constitutional violation of First Amendment rights.6

With the growing hostile political climate, there is an increased need for tolerance of varying viewpoints, especially in the educational setting. This article will analyze the issue of free speech on American campuses. Section II will examine what restrictions are ju_72.tified under the First Amendment and whether the acts of university administrators fall within those boundaries. Then Section III will discuss the effects of recent restriction on campus speech by administers. Lastly, Section IV will provide some possible alternatives for school administrators, to the cancellation of controversial speeches.

II. ARE THE CANCELLATIONS OF CONTROVERSIAL GUEST SPEAKERS DUE TO SAFETY CONCERNS JUSTIFIED UNDER THE FIRST AMENDMENT?

As expected, there are varying viewpoints on whether the cancellations of controversial speakers are ju_72.tified and permitted under the First Amendment. Those who hope to host controversial guests argue that school officials are making content-based restrictions, which aren't permitted by the First Amendment, and _72.tifling speech. On the other hand, school officials argue that they must protect student safety and that these are time, place, and manner restrictions, which are permitted under the First Amendment.7

The mere fact a speech is offensive does not warrant its restriction.8 If a particular speech could be restricted for the mere fact that it was seen as offensive, the government (or in this instance, public universities) would be acting as a censor, which is strictly limited by the First Amendment. The Constitution does not allow the government to decide which types of generally protected speech are offensive enough to require protection.9

A restriction on speech based on the content of the speech is presumed invalid by the courts.10 Content-based restrictions refer to restrictions based on the "topic discussed or the idea or message expressed."11 "The rationale of the general prohibition against contentbased regulations of speech is that content discrimination raises the specter that the government may effectively drive certain ideas or viewpoints from the marketplace."12 Similarly, speech may not be restricted based on viewpoint.13

However, the right to free speech is not absolute. "The First Amendment does not guarantee the right to communicate one's view at all times and places or in any manner that may be desired. …

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