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The First Amendment on Campus Reflection

Matthew Robinson

Wright State University

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For the Law of Higher Education course, I have been tasked with reading and reflecting

on at least three aspects of the issues raised in The First Amendment on Campus by Lee E. Bird,

Mary Beth Mackin, and Saundra K. Schuster (2006). This book is intended to be a handbook on

the First Amendment for student affair professionals and examines the many nuances of free

speech in the world of academia. The authors provide historical context, definitions of legal

terms, hypothetical scenarios, as well as steps that can be taken when faced with a First

Amendment issue on campus. References to numerous court cases also provide a real world look

into what the law actually says administrators can and cannot do.

The areas that I want to highlight are the idea that the First Amendment should be

protected even in the face of conflict, what is actually unprotected speech, the difference between

private and public institutions, and that even if speech is offensive it may not constitute

suppression. These ideas stood out to me in particular due to the current climate on campus and

in the United States. Free speech, and where we may limit it, are currently at the forefront of

many campus conversations. The authors (2006, p, 5) point out in the book that the educators and

administrators should “recognize and protect the First Amendment, even when such actions can

invite additional campus conflict as well as litigation.” Near the end of the book in chapter six,

the authors (2006, p.133) reiterate their stance by explaining that even in the face of controversy,

honoring the law is the right thing to do.

As someone with a background in journalism, protection of free speech is a topic I have

had many conversations about, but never really in the context of higher education. The authors

do a great job of highlighting the importance of free speech on a college campus throughout the

book and give examples that show that the courts will also uphold the First Amendment even

when what is said may be offensive. One case presented is Papish v. Board of Curators of the
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University of Missouri (2006, p. 8). In this case the editor of the school newspaper chose to run a

satirical comic in the paper that many university administrators found offensive and the editor

was expelled for it. The Supreme Court would overturn the expulsion saying that ,”the mere

dissemination of ideas—no matter how offensive to good taste—on a state university campus

may not be shut off in the name alone of ‘conventions of decency.’” The authors point out that

the court decided that the First Amendment needed to be protected more than others had the right

to be offended.

On the topic of being offended, the book provides a good list and definitions as to what is

currently considered unprotected speech and thus not protected by the First Amendment. The

authors also point out that their list is basic at best and that any questions of unprotected speech

should be brought up with legal counsel. Some areas of unprotected speech include sexual

harassment and racial harassment, obscenity, fighting words, incitement, true threat, defamation

and internet defamation. Internet defamation in particular is interesting as no tests have been

developed to determine internet defamation as of the writing of The First Amendment on

Campus (2006, p. 66-69).

One other point to note is that hate speech is currently not considered unprotected speech.

In chapter five, the authors point out that while it is used frequently, hate speech as term does not

have a legal definition and cannot be considered prohibited speech (2006, p. 89, 98). One quote

that stands out is, “In reality, most campus free-speech controversies involve protected speech

(2006, p.163).” With this in mind, the topic of how the First Amendment is handled on private

campuses is an interesting one.

Chapter three (2006, p. 42-48) of the book focuses solely on this difference as well as

providing insight on the state action doctrine. Public universities are determined to be “acting
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under color of the government” and are under the same limits of the Constitution that other

government entities are. Private schools, with some exceptions, are not limited by these

regulations. The private school relationship with student is contractual in nature, which gives

them more freedom to restrict certain types of speech. The book points out that the First

Amendment protects citizens from the government, not private organizations.

The state action doctrine is one way that constitutional law can come into play at private

schools. In this doctrine, if a school is acting in place of the state then constitutional obligations

will apply. The book points out three ways that state action comes into play: if the institution acts

as an agent performing a particular task, if the institution performs a function that is generally

considered the responsibility of government, or if the institution obtains substantial resources,

prestige, or encouragement from its involvement with government. Ultimately, the authors

(2006, p.46) advocate for private schools to take a common sense approach to free speech,

sticking to what is printed officially and honoring the promises made to students.

The one thing I found very interesting throughout was the authors’ stance that even if

speech offends, it does not mean that it can be limited. This is especially true if the speech takes

place in a public forum. While schools can limit speech in limited public and nonpublic forums,

traditional and designated public forums can only limit speech if there is legitimate government

interest. Even if limitations can be presented, they must be narrow in scope so that only the

speech in questions is limited and that other ways of communication are readily available (2006,

p. 64-65).

The book mentions content-neutral time, place, and manner limits on expression, but says

that these can only really be applied in limited and nonpublic forums. This is due to the strict

scrutiny test in which the institution must prove that its actions ae necessary to achieve a
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compelling government interests and courts will strike down anything that is deemed

unnecessary. Which brings back the point that even if speech is offensive, that does not mean that

it can be limited. One quote that jumps out in chapter four is, “Simply being upset is not the

same as a disruption to the campus environment (2006, p. 61).”

Several scenarios in chapter five (2006, p. 74-124) illustrate this with many applicable

examples. One that stands out to me is the on campus preacher, which is a situation our campus

had to deal with rather recently. While what the preacher was saying was certainly offensive,

calling women whores and condemning many groups of people to hell, nothing he said fell under

the unprotected speech category. The authors point out that his speech did not deny anyone from

benefitting from the college’s services and that the group that had gathered around him were not

a captive audience, which means they could leave at any time. This scenario shows how intense a

free speech situation can become and how helpless some administrators may feel in responding

to such actions. Luckily the authors provide action steps that may be taken on campus in the

event of a free speech crises.

The first suggestion is to create an action plan on campus. This could involve creating a

response team, beginning the investigation immediately, determining spokespersons, establishing

communication protocols, meeting with students involved, contacting national organizations if

necessary, and if discipline is to be taken, follow all campus conduct policies. The next step is

about handling the media. Some suggestions include telling the truth, taking time to answer

questions, avoid being defensive, be cordial, and to be clear and concise with answers (2006, p.

130-146).

The last suggestions pertain to how administrators can help with the healing process on

campus. The authors touch on a few ways that one can support the campus as well as the First
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Amendment. One way is to condemn the offensive speech and being honest with the campus

community on why it is important to understand why that speech is still protected. The

overarching theme is being present. Whether it is going to vigils or campus discussions, meeting

with those that may have perpetrated the speech, or just letting those affected be heard (2006, p.

162-167).

Administrators should be the first people to protect the First Amendment in any situation,

but can also be proactive in their response. By taking charge, student affairs professionals can

turn negative situations into positive ones. The authors (2006, p. 167) close by saying, “Any

campus community that has gone through such an incident will most certainly have grown

stronger in many ways as a result. The ability to identify those strengths and determine how to

utilize them positively in the future will also serve as a great healer.”
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References

Bird, L. E., Mackin, M. B., & Schuster, S. K. (2006). The First Amendment on campus: A

handbook for college and university administrators. Washington, D.C.: NASPA.