Protesters on college campuses often cite the First Amendment to justify their tactics, whether they’re waving signs, setting up encampments, occupying buildings, or chanting slogans that some criticize as anti-Semitic. However, many legal scholars and university administrators believe that some of these assertions about free speech misinterpret, test, or even violate the amendment, which is designed to protect against government suppression of speech.
The First Amendment doesn’t automatically apply to private schools. Public universities, as government entities, must adhere to the First Amendment, which states that there shall be no law “abridging the freedom of speech” or “the right of the people peaceably to assemble.” In contrast, private universities set their own standards for speech and protest. While private universities often support free expression, their policies are based on principles like academic freedom and the marketplace of ideas, not on constitutional law.
For example, Columbia University, a hotspot for recent campus protests, has not banned all speech but has established rules, such as designated demonstration zones and preregistration of protests. These rules aim to ensure safety while allowing members of the university community to express their views. Although these policies might anger students and faculty, and even limit speech on campus, Columbia faces less legal risk compared to public schools.
Both academic administrators and courts often rely on the “time, place, and manner” framework, which is well-established in free speech case law. This doctrine allows governments to regulate the logistical aspects of speech, such as when and where protests can occur, as long as these regulations are applied without discriminating against any viewpoint. This approach helps university leaders create protest policies that can withstand legal scrutiny and political backlash.
Nicholas B. Dirks, a former chancellor of the University of California, Berkeley, explains that the “time, place, manner” framework is intended to allow protests without disrupting academic activities. However, he acknowledges that this is easier said than done.
The Supreme Court has ruled that speech is not protected by the First Amendment if it is intended to provoke “imminent lawless action” and is likely to do so. This test helps determine whether, for example, an antisemitic chant is constitutionally protected. If the chant is meant to incite immediate unlawful actions and is likely to succeed, it is not protected. However, if it fails to meet this standard, it is protected, meaning even highly offensive speech may not be subject to government discipline.
Timothy J. Heaphy, a former U.S. attorney and university counsel, notes that the challenge arises when speech and conduct are close to this line. Some behavior, like threatening or intimidating actions, can be illegal under federal civil rights law. For instance, two men were sentenced for using threats to intimidate Black students and employees at the University of Mississippi by placing a noose around a statue of James Meredith, the first Black student to enroll there.
While some campus protesters view encampments as a form of speech, courts have generally upheld restrictions on overnight camping, even on public property. In a 1984 Supreme Court case, the National Park Service was allowed to deny a request for protesters to sleep in symbolic tents near the White House, citing regulations against sleeping in non-campground areas. The court ruled that such regulations are reasonable time, place, or manner restrictions on expression, as they are neutral regarding the message and leave open other methods of communication.
Heaphy suggests that a court would not view a building occupation, like the recent one at Columbia, as protected First Amendment activity. Occupying a building is considered conduct, not speech, and is unlikely to be legally protected.
Universities can generally change their protest policies, but public universities must still comply with the First Amendment. Private universities have more flexibility in setting their rules. For instance, the University of Chicago president, Paul Alivisatos, acknowledged that while encampments violate school policies, administrators might temporarily allow them due to the importance of students’ expressive rights. However, he emphasized that the university would not let its policies be completely disregarded and encouraged students to use other methods of expression.
The interplay between student protests, university policies, and the First Amendment is complex. Public universities must balance free speech protections with maintaining order and safety, while private universities have more discretion but still strive to uphold principles of free expression. Understanding the nuances of time, place, and manner restrictions and the imminent lawless action test is crucial in navigating these issues. As campus protests continue to evolve, the interpretation and application of these principles will significantly impact the discipline and response to student activism.
