Prominent social and political figures have been asked to speak at colleges and universities for decades. Even though these speeches have been occurring for years, there is no doubt that the current political climate has resulted in increasingly polarized viewpoints and heightened uproar over the invitation of certain individuals to campus. From alt-right leader Richard Spencer at Michigan State University to California Attorney General Xavier Becerra and Assembly leader Ian Calderon at Whitter College in California, protests against speakers on college campuses have been headlining the news. Unfortunately, the various ways in which colleges and universities are responding to these incidents has resulted in confusion regarding the law as it relates to free speech. As a result, the confidence of students' security in the First Amendment has dropped significantly. A recent Gallup survey of 3,014 U.S. college students is telling; of those surveyed, 73 percent of students believed freedom of speech was secure in 2016 compared to 64 percent now; and, in 2016, 81 percent of students believed freedom of the press was secure, down to only 60 percent now.

Given today's social media influence, inviting controversial speakers to campus now has entirely new implications as student and faculty reactions to a campus speaker can go viral almost instantaneously. Because of this, it is important for colleges and universities to publish policies that clearly articulate the school's stance on free speech, and the expectations of students and faculty when a potentially contentious speaker comes to campus. Institutions of higher education must write and implement policies that clearly and effectively balance the tension between free speech and the exchange of ideas against the potential for violence or protest that could result when a polarizing individual is asked to speak. So how can a college or university go about doing this most effectively to protect itself against bad press, or even a lawsuit? At least part of the answer to this question requires an understanding of the law as it pertains to the First Amendment.

Legal Background

The First Amendment governs the right to free speech, but is applied differently to public institutions and private institutions. Public universities are required to uphold the First Amendment rights of students on campus, but private institutions do not necessarily have to do so. When a state university creates a limited public forum for speech, or in other words, opens a restricted property such as a meeting hall to expressive activities, it cannot discriminate against speech based on the viewpoint of the speaker, without violating the First Amendment. But, the same does not hold true for private institutions. Private institutions are not obligated to guarantee their students the right to free speech, and in fact, they have the freedom of assembly permitting them to express their own views. However, this does not mean that private schools are free and clear of potential free speech conflicts. For example, if a private institution holds itself out as being committed to the right of free speech, and does not honor this commitment in practice, it may still be in hot water. In certain jurisdictions, college or university handbooks, codes of conduct, or other similar policies have been found to be binding in some cases based on a contract law theory that these policies inform the students' or faculties' reasonable expectations, see Havlik v. Johnson & Wales University, 509 F.3d 25, 34 (1st Cir. 2007). The state of California took a more stringent approach and enacted the Leonard Law, which requires all public and private colleges, universities, and high schools to uphold the First Amendment.

What Are Schools Doing?

The recent uptick in campus controversies has caused many colleges and universities to carefully review their current free speech policies, and in many instances, institute revisions. For example, the University of Wisconsin recently enacted a policy which calls for the suspension or expulsion of any student who repeatedly disrupts campus speeches and presentations. In January, the University of California, Berkeley revised its “major events” policy which dictates how student groups can bring outside speakers to campus. The new policy changed the definition of a major event to one with 300 or more guests expected, instead of 200, and shortened the notice requirement for a major event to six weeks, instead of eight, to make hosting on-campus events less restrictive for student groups. Other schools have tried to manage this debate by removing limitations on where free speech activities can occur on campus. For example, the University of Hawaii at Manoa reformed their former policy and removed the Campus Center Courtyard as the only designated public forum on campus making the policy more consistent with the University of Hawaii's systemwide policy that does not have restrictive free speech zones.

Given the controversial nature of free speech policies at institutions of higher education, state legislatures are getting involved. The House GOP Higher Education Act recently proposed a mandate that would require schools to disclose any policies that aim to protect free speech on campus by limiting where and when such speech may occur. A committee of the Texas Senate also met to consider reforms that would, in their eyes, preserve free speech at the state's public universities. Texas Lt. Gov. Dan Patrick implored the Senate State Affairs Committee to “ascertain any restrictions on freedom of speech right that Texans students face in expressing their views on campus along with freedom of the press, religion and assembly. Recommend policy changes that protect First Amendment rights and enhance the free speech environment on campus.”

Approaches and Pointers

Whether an institution is private or public, it is important that the school's actions in prohibiting or punishing speech correspond to its respective policies. Furthermore, to protect against backlash—both legally and otherwise—university and college administrators should make sure to publish their policies to effectively establish expectations when it comes to controversial speakers on campus. Some important factors to consider when drafting free speech policies include:

• Hate speech or speech that is merely unseemly, demeaning, intimidating or offensive is protected speech under the First Amendment. However, there is a distinction between offensive speech and harassment. Colleges and universities that receive funding from the government are required to implement policies that prevent harassment based on sex, race, religion and ethnicity. Thus, it is important for institutions of higher education to be aware of where the line is properly drawn in terms of the distinction between hate speech or offensive speech which is protected under the First Amendment, and harassment, which must be severe, pervasive, and objectively offensive and is not protected under federal anti-discrimination laws.
• Public institutions can impose reasonable time, place, and manner restrictions on speech as long as the restrictions are narrowly tailored and not based on the viewpoint of the speaker. Only protecting speech that falls in certain enumerated categories can be construed as viewpoint discrimination which violates the constitutional requirement that any prohibition on speech be content-neutral. Policies that restrict speech to just one or two areas of campus or impose significant burdens beforehand, like an advanced registration or notice process, have been held to be unconstitutional. Additionally, it is important to clearly define any of these restrictions, especially as they relate to locations or types of speech or behavior that is prohibited, and apply these restrictions universally.
• If the school charges fees for events requiring security, the fee must not vary depending on the content of the speech. In other words, it must be implemented on a content-neutral basis.
• Lastly, make sure any free speech policies closely and accurately align with the mission and value of the college or university. This is important to ensure that the methods of dealing with protests or other incivility coincide with the mission of the institution and properly inform the expectations of students and faculty.

Overwhelmingly, the best way to deal with the intricacies of complex law and policy as it relates to free speech on campus is for every college and university to have a statement emphasizing their commitment to free speech. Schools should have a handbook or code of conduct that students sign, which clearly explains the rules with respect to how to properly express displeasure or engage in discourse in a constructive way, while keeping the First Amendment in mind. These policies should encourage respectful debate, and state that acts of discrimination, harassment, or intimidation will not be tolerated, in an effort to allow all speakers and ideas to be heard in a constructive manner.

Fara A. Cohen is an associate at Griesing Law, where she focuses her practice on corporate transactions, commercial litigation and employment law. She can be reached at 215-501-7849 or [email protected].