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Protesters on college campuses often cited the First Amendment as a refuge for their tactics, whether they simply waved signs or took more dramatic steps, such as setting up encampments, occupying buildings or chanting slogans that critics say are anti-Semitic.
But many legal scholars, along with lawyers and university administrators, believe that at least some of these free speech claims confuse, violate, test or even defy the amendment, which is intended to protect against state repression.
Whose interpretation and principles prevail, whether in the courts or among administrators charged with maintaining discipline, will do much to determine whether protesters face punishment for campus disturbance.
The First Amendment does not automatically apply to private schools.
Public universities, as arms of the government, must yield to the First Amendment and the way courts interpret it to mandate that no law “abridge the freedom of speech” or “the right of the people peaceably to assemble” .
But private universities set their own standards around speech and protest.
To be sure, private universities tend to embrace free speech more than, say, private businesses. These policies and approaches, however, are guided by principles such as academic freedom and the marketplace of ideas, not constitutional law.
Columbia University, the center of this round of campus protests and the scene of a massive police response Tuesday night, has not banned all speech. But its current policy includes a set of rules, such as permitted demonstration zones and pre-registration of protests, that the university says are intended to ensure safety while promising that “all members of the university community have the right to speak, study, research, to teach and express their own opinions’.
Legal scholars said that while the university’s approach may anger students and faculty members and may even limit speech on campus, Columbia faces far less legal risk than any public school.
“Time, place and manner” is a critical standard.
Academic administrators and courts often find comfort in contexts, and the concept of “time, place, and manner” is deeply embedded in free speech jurisprudence.
Under this doctrine, governments may sometimes regulate the logistics of speech. The doctrine is not a blank check on state power over speech—a government must, for example, apply regulations without discrimination with respect to a viewpoint—but it allows for certain limitations in the pursuit of public safety and order.
For university leaders, the doctrine offers a kind of template for protest policies that can survive legal scrutiny and withstand political backlash.
“We have always believed that time, place, manner — if applied in a fair, open and completely neutral manner — was the best mechanism both to allow protest and to ensure that protest does not disrupt academic programming and activities said Nicholas B. Dirks, former chancellor of the University of California, Berkeley, which has one of the richest traditions of protest in higher education.
But, Dr. Dirks added, “It’s easier said than done.”
Another important test is “imminent wrongful act”.
The Supreme Court, just after World War I, issued a First Amendment ruling that included the phrase “clear and present danger.” Some 50 years later, the court adopted an approach that focused on the “imminent wrongful act.”
This test is important in assessing whether, for example, the First Amendment protects an anti-Semitic chant. If the speech is intended to cause an “imminent illegal action” and is likely to do so, it is not constitutionally sound. But a chant that fails any part of that standard is protected, meaning that even some horribly awkward, unpleasant speech may not be subject to government discipline.
“The hard part is when behavior and speech are close to the line,” said Timothy J. Heaphy, who was a United States attorney during the Obama administration and later a university adviser at the University of Virginia.
Some threatening behavior on college campuses is illegal under federal civil rights law. Two men, for example, pleaded guilty to using threats of violence to intimidate black students and staff at the University of Mississippi after they placed a noose around a campus statue of James Meredith, the first black student to enroll there, in 2014. by the men were sentenced to prison.
Are camps covered by the First Amendment?
Although some campus protesters view their encampments as a form of speech, courts have held that restrictions on overnight camping and the like can be time, place, and manner-specific, even on public property.
In a 7-2 decision in 1984, for example, the Supreme Court ruled that the National Park Service could deny a request by protesters to spend nights in “symbolic tents” near the White House under its regulations against sleeping in places which were not classified. as a campsite.
“The no-sleep regulation meets the requirements for a reasonable time, place, or manner of restraining expression,” Judge Byron White wrote in his opinion.
“The regulation is neutral in terms of the message presented and leaves open many alternative methods of communicating the intended message about the plight of the homeless,” he added.
A court would never view a building occupation like this week’s in Columbia, Mr. Heaphy predicted, as protected First Amendment activity.
“Students took over the building,” he said. “This is behavior. This is not going to last.”
Can universities change policies?
Generally, yes, but, for public universities, the First Amendment still applies.
Again, private universities have more discretion.
At the University of Chicago, the president, Paul Alivisatos, noted this week that while camps violate school rules, administrators “may allow a camp to remain for a short period of time despite apparent policy violations.”
In floating the possibility, he cited “the importance of our students’ expressive rights” and said “the impact of a moderate camp is not that different from a conventional rally or march.”
But he signaled the university would not allow its policy to be eviscerated and urged students attending the camp to “instead embrace the multitude of other tools at their disposal.”
