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Constitutional Law

The First Amendment Speech Responsibilities of a Public University

January 12, 2021

Universities are intended to be places for learning, research, and dialogue. The concept of “academic freedom” holds that university faculty should be free to pursue ideas and inquiries without external influences or limitations, and particularly without the threat of legal persecution. Modern universities are subject to many outside influences, particularly with regard to matters like funding, but academic freedom remains an important principle.

The First Amendment to the United States Constitution prohibits the government from penalizing people for the content of their speech, which generally means that the state cannot prosecute somebody simply because it does not like what the person is saying. Because of the state-action doctrine, the First Amendment only applies to public universities, which operate as part of state or local governments. Private universities may still, however, have free speech obligations to faculty and students.

Free Speech at Public Universities

The First Amendment states that “Congress shall make no law...abridging the freedom of speech.” The Fourteenth Amendment extended these protections to actions by state governments as well as the federal government. This includes state universities, such as the University of California system and the California State University system, as well as local colleges like the San Diego Community College District.

Academic Speech by Faculty

The US Supreme Court identified the unique role of universities in a 1957 decision, Sweezy v. New Hampshire, noting that “[t]o impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation.” The Court has recognized the right of faculty to be reasonably free of government interference in their research and teaching. This includes interference by the administrators of public universities.

The Sweezy decision overturned a professor’s conviction for refusing to answer a state attorney general’s subpoena demanding notes from a lecture that he had given on Marxism. A plurality of the Court ruled that the state had violated the professor’s due process rights. Academic freedom was central to a concurring opinion written by Justice Frankfurter, which was joined by one other justice.

The Court cited its opinion in Sweezy in 1967 in Keyishian v. Board of Regents, State Univ. of N.Y. This case involved state laws that barred people deemed “treasonable or seditious” from working for the state. The State University of New York also required faculty and other employees to sign an oath declaring that they were not affiliated with the Communist Party. The Court ruled that these laws and regulations were unconstitutionally broad and vague.

Academic Speech by Students

The Supreme Court has also addressed students’ free speech rights on university campuses. Important decisions affecting students include the following:

  • Official status of student groups: In Healy v. James, the Court held that a university could not deny official status to a student group who met all of the school’s requirements.
  • Distribution of information: The Court ruled in Papish v. Board of Curators of University of Missouri that a university cannot penalize a student for “the mere dissemination of ideas-no matter how offensive to good taste.”
  • Religious activities: A university violated students’ First Amendment rights when it changed its policy to no longer allow student groups to use campus facilities for religious purposes, according to Widmar v. Vincent. The Court held that merely allowing a religious group to use university facilities “is not to support an establishment of religion.”

Campus Speech Codes

Many universities have policies about communications among students, faculty, and other staff that run afoul of First Amendment protections. This has been one of the biggest areas of public controversy surrounding campus speech at public universities in recent years.

Courts have found policies intended to prevent harassment on campus to be overbroad, however good the intentions behind those policies might be. The Supreme Court has never ruled on a challenge to a campus speech code, so the caselaw varies among jurisdictions.

2007 decision by a U.S. District Court in the Northern District of California granted a preliminary injunction in a lawsuit alleging that a speech code was unconstitutionally vague and overbroad. The speech code prohibited, among other acts, “intimidation,” “harassment,” and “behavior [that] is inconsistent with [the university’s] goals, principles, and policies.” The overall trend in court decisions suggests that campus speech codes that don’t state their terms as narrowly and specifically as possible are more likely to violate the First Amendment.

Free Speech at Private Universities

The First Amendment only serves as a check on government action. Private universities are not prohibited by law from enacting content-based restrictions on speech affecting faculty, staff, and students. That said, private universities must uniformly and consistently apply any rules that they establish. Other laws might limit private universities’ ability to enact restrictions on speech, such as Title IX’s prohibition on sex discrimination in education.

The way that a private university markets itself, especially to prospective faculty and students, could prove to be binding. If a university promises a certain degree of academic freedom, it is possible that a court will deem that an enforceable contract. The caselaw on this question varies from one jurisdiction to another. Since most private universities hold themselves out as places of academic inquiry, it might be in their interest to act as though they are at least partly bound by the First Amendment free speech rights of their employees and students.