Free speech, free press in higher education

Freedom of speech is a fundamental right guaranteed under the Virginia Constitution, the First Amendment of the US Bill of Rights and Article 19 of the Universal Declaration of Human Rights.

But freedom of speech is often marginalized in the one place where it ought to be respected the most: A college campus in the USA. Although the usual platitudes about tolerance, diversity and freedom of expression can be found in most US campus speech policies, in practice, freedom of speech often involves ideas that are too challenging for the buttoned-up administrators of most universities to actually tolerate. In 2016, the Thomas Jefferson Center gave its “Muzzle Award” to 50 universities for an unprecedented outbreak of censorship.

Of course, it could be much worse. In China, there are seven prohibited topics at universities.  (These are: universal values, citizen rights, civil society, judicial independence, freedom of the press, the privileged capitalist class, and past mistakes of the communist party.)  In Saudi Arabia, journalists, academics and others are routinely imprisoned or gruesomely executed for even the mildest criticism of government or religion.   And there are many similar free speech controversies all over the world that involve imprisonments, torture, exile, and executions.  Yes of course, repression of speech by US and European institutions doesn’t come close to this level of totalitarianism.

Even so, at many US universities,  avenues for student expression can be strictly limited in ways that are clearly unconstitutional and potentially open to court challenge.  Many administrators believe they can suppress student speech like the cartoonish deans in the Depression-era film “Red Salute” embedded on this page.

Some universities have rules banning all kinds of things like fraternity signs, free speech outside certain  “zones,” and posting certain messages on campus email.  And under the Hazelwood decision (below), high school administrations have complete censorship power over student publishing.

In response, the Student Press Law Center created the  New Voices campaign, attempting to protect the First Amendment rights of high school students (and in some cases, extending those rights to college students).

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The history of  higher education goes back nearly 1,000 years, to the adoption of an academic charter, called the Constitutio Habita,at the University of Bologna around 1155.  This charter provided for certain immunities, freedom of travel, and the right to be tried in a university court rather than civil court.  With the establishment of similar universities across Europe came the expectation of some limited academic freedom, but two famous cases exemplify the many thousands who were persecuted for their beliefs.   Giordano Bruno, a Domincan Friar and mathematician, said in the late 1500s that the earth revolved around the sun. He apparently thought he was safe at the University of Padua and teaching in Venice, but was denounced to the Inquisition and burned at the stake in 1600.   Galileo was another university scholar persecuted for astronomical beliefs, although he avoided Bruno’s fate by confessing (insincerely) to his “error.”

The history of free speech at US universities begins with the establishment of Harvard school in 1636 for the training of clergy in the Puritan faith.  It may be ironic that Henry Dunster, the first president of the first university in America, was forced to resign in 1654 when he dissented from a religion founded by dissenters.  And to create a more Puritan university, in  1692, Harvard president Increase Mather removed all the old Greek and Roman books and confined teaching to Christian authors.  (Mather and his son Cotton were also involved in the Salem Witch Trials around this time).

With the dawn of the 18th century,   Harvard, William & Mary,  and other American universities saw a struggle between religious control and an increasingly liberal approach to higher eduction. Freedom of speech and academic freedom were highly contested in that atmosphere.

Among the 20th century highlights of First Amendment and Higher Education issues:

• The John Bassett Affair In 1903, Duke (then Trinity) University historian John Bassett expressed admiration for Booker T. Washington, a then-famous African American leader, putting him on a par with Robert E. Lee. Outraged politicians demanded that he be fired. Trinity refused, and then-president Theodore Roosevelt came to Trinity to congratulate Bassett in a commencement speech. “You stand for Academic Freedom, for the right of private judgment, for a duty more incumbent upon the scholar than upon any other man, to tell the truth as he sees it, to claim for himself and to give to others the largest liberty in seeking after the truth.”
• The dismissal of Prof. Max Meyer In 1929, University of Missouri professor of experimental psychology was dismissed for supervising a study involving questions about sexual conduct which were then considered to be scandalous. The university was censured by AAUP for the dismissal.
• The Red Scare (1940s – 60s) Colleges and schools around the country began requiring loyalty oaths; those who objected were dismissed. (Also see History of UCLA and McCarthyism).
• Civil rights / free speech movement In 1964 and 1965, students at the University of California Berkeley demanded that the university administration lift a ban on political activities at the campus and acknowledge the students’ right to free speech and academic freedom.   Demonstrations started after the arrest of students who were simply passing out pamphlets supporting the civil rights movement.
• Anti Vietnam War Movement led to another wave of controversy. In 1969, the  Tinker v. Des Moines School District case was heard by  the Supreme Court, which upheld the right of  children to wear black armbands as a protest.   That decision contains this  statement: “It  can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”  According to the court, schools could only  suppress student expression if it “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.”
• A controversy over discussing sex before marriage involved  Radford University professor Ed Jervey,  a Professor of History  from 1961-1991.   Radford College tried to fire Jervey, and he sued college president Dr. Charles K. Martin and the Board of Visitors.
  
• Speech codes have created controversy through the 1970s and 80s, exemplified in the Doe v. University of Michigan case in 1989 and the Water Buffalo incident of 1993, among many others. Other speech codes, for example involving requirements for stamps on posters and approval of off-campus signage for certain student groups continue to be controversial. The Foundation for Individual Rights in Education recently started a rating system for campus speech codes.
• Free speech zones have been controversial in the 1980s – 2010s period. They have been altered or abolished at Tufts University, Appalachian State University, West Virginia University and Penn State University. Controversies have also occurred recently at the University of Southern California, Indiana University, the University of Nevada, Las Vegas,and Brigham Young University, according to this Wikipedia article.
• Student press issues have been contentious and complicated since the 1960s. Major cases  include Hazelwood v Kuhlmeier   (1988), where the court said high school press had limited rights,  and Hosty v Carter (2005), a  7th district court decision that limited college press. Another limitation on college press was Educational Media Co. (Collegiate Times) v Insley (Va. ABC Board) in 2012, in which ABC rules prohibited student newspapers from running alcohol beverage advertising. The initial ruling that favored censorship was overturned in 2014.
• Symbolic speech in K-12 schools — In 2013, a federal judge ruled that Pennsylvania students were entitled to wear “boobie bracelets” in support of breast cancer.

Important cases 

Bazaar v. Fortune, 489 F.2nd 255 (5th Cir. 1973) cert denied 414 US 1135 (1973) The university, as an arm of the state, could not make private publisher decisions about content and had infringed upon the free press rights of students when it denied distribution rights to an issue of the magazine.  (Student press).

Cohen v California  (1971)   Supreme Court said even indecent speech could not be banned by a school.

Joyner v. Whiting, 447 F.2nd 456 (4th Cir. 1973) A university can’t withdraw funding from a student publication due to content disagreements.

Connell v. Ammons,   (2011)  — Delaware case that has to do with limiting academic freedom in a private school.  Violated harassment code referred to other law school colleagues as “black folks.”

Muir v. Alabama Educational Television Commission, 688 F.2d 1033, 1982, also LEXIS 24813, cert. denied 1983, Several Texas and Alabama PBS stations refused to air the PBS docudrama “Death of a Princess” for fear of offending Saudis who funded university functions. The courts said there is no First Amendment right to compel government speech. “Standard First Amendment doctrine condemns content control by governmental bodies where the government sponsors and financially supports certain facilities through the use of which others are allowed to communicate and to exercise their own right of expression. Government is allowed to impose restrictions only as to “time, place, or manner” in the use of such public access facilities — public forums…. If the state is conducting an activity that functions as a marketplace of ideas, the Constitution requires content neutrality. Thus, a state university may not override editorial freedom for student newspapers.”

Stanley v. Magrath, 719 F.2nd 279 (8th Cir. 1983) University administrators can’t punish students for content of a publication by withholding funds.

Hazelwood School District et al. v. Kuhlmeier et al., (1988) held that high school student publications can be censored by the school administration.  This did not include college publications.   Hosty v. Carter 412 F.3d 731 (7th Cir. 2005) involved questions about of the Hazelwood decision relative to the college press in the Seventh District. The Supreme Court refused cert in 2006. Experts disagree on the impact of this decision, although it’s fairly clear that it’s not a “Hazelwood” for colleges.

Educational Media Company v Swecker (2012)  The Fourth District federal court upheld a Virginia ABC regulation banning alcohol advertising targeted to those under 21, even in student publications at a university.   The regulations applied to Virginia Tech’s Collegiate Times and U Va’s Cavalier Daily, as well as others. Virginia Supreme Court case: Educational Media Co at Virginia Tech v. Susan Swecker /  No. 110992 November 4, 2011

Pitt News v Pappert, 2009 Sixth District court affirms freedom of speech and right to run alcohol ads in student publications.  Of course this contradicts EMC v Swecker

Speech codes & symbolic speech in schools

Tinker v. Des Moines Independent Community School District, 393 US 503 (1969) A school could not punish students for wearing armbands that protested the war.   “It can hardly be argued that either students or teachers shed their constitutional rights at the schoolhouse gate.”

Healey v. James, 408 US 169, 180, (1972) the Court said that the First Amendment applies on college campuses with same force as elsewhere and that a university could not refuse to recognize a student group simply because it didn’t agree with its views.

Papish v. Board of Curators at the Univ. of Missouri, 410 US 667 (1973) The Court said that even ideas offensive to good taste could not be prohibited on a state university campus in the name of conventions of decency alone.

Lamb Chapel v. Center Moriches Union Free School District (1993) – Court ruled that a public school may not refuse to show religious films.

Davis v. Monroe Board of Education  (1999)  school board liable for any student-on-student harassment based on Title 9 anti-discrimination law.

Roberts v Haragan – (2003) — Texas Tech speech code struck down.

Locke v. Davey (2004) – Upheld a publicly funded scholarship programs right to excluded theological degrees.

Garcetti v. Ceballos, 574 U.S. 410 (2006)  — Protection for government employees, LA district attorney criticized the legitimacy of a search warrant.  No right to speak as representative of LA,  no First Amendment protection.

Morse v Frederick (2007)  “Bong Hits 4 Jesus”  case where Supreme Court said advocacy of illegal conduct was not protected expression in a public school.

Layshock v Hermitage School district (2011) — Schools may not lightly extend their reach into students’ off-hours activities in this and a related case, the 3rd federal circuit court found.  SPLC had a discussion about the issues in 2011.

Public Forum

PERRY ED. ASSN. v. PERRY LOCAL EDUCATORS’ ASSN., 460 U.S. 37 (1983) — With respect to public property that is not by tradition or government designation a forum for public communication, a State may reserve the use of the property for its intended purposes, communicative or otherwise, as long as a regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.

Southeastern Promotions, Ltd. v. City of West Palm Beach, 457 F.2d 1016 (5th Cir. 1972), Here the federal court adopted the following test for determining whether a public facility is a public forum: “Does the character of the place, the pattern of usual activity, the nature of its essential purpose and the population who take advantage of the general invitation extended make it an appropriate place for communication of views on issues of political and social significance.”

Further discussion  

K-12:  

“Bitch: Go directly to jail; Student speech and entry into the school-to-jail pipeline,” Catharine J. Ross.  May 22, 2016.

American high school journalists fight school-ordered censorship, Wiki Tribune, March, 2018

University: 

Radford University’s turbulent past, article by Dan Casey, Roanoke Times, 2020.

Are calls for diversity in teaching a form of compelled speech toward politically correct thinking? Yes, according to A. Barton Hinkle, columnist for the Richmond Times Dispatch, July 19, 2015.

Next:  First Amendment & Higher Education cases

Also see:  RUSpeechless web site

One video that helps to explain the RU and city of Radford issues is posted on the ruspeechless Facebook pages.

The Plot Against Student Newspapers,  Sept. 30, 2015. Atlantic magazine

Daily Caller Oct. 2015 interview with Greg Lukianoff, founder of the Foundation for Individual Rights in Education.

Missouri activists block journalists; a divide over respect and rights. New York Times, Nov 10, 2015.