College and university campuses are often hotbeds of controversial speech, from student protests to cuttingedge research projects. Universities play an important role in the free exchange of ideas in America, yet tension often arises between the right of free expression and the need for the university to function effectively. The First Amendment states that ‘‘Congress shall make no law...abridging the freedom of speech...’’ and the Fourteenth Amendment extends this prohibition on restrictions of free speech to state governments. Public universities, as part of the state government, are limited in the restrictions they can impose on free speech.
Public universities are able to limit speech under the First Amendment in two important ways. First, universities may restrict speech that is not protected by the First Amendment. This includes speech that aims to incite immediate violence, confrontational or threatening ‘‘fighting words,’’ obscenity, and defamation. Second, universities may restrict speech—to varying degrees—on the basis of the forum in which the speech occurs. There are three basic categories of forum: the traditional public forum, the limited public forum (sometimes called a ‘‘designated public forum’’), and the nonpublic forum.
Traditional public forums are those that have traditionally or historically been opened up to the public for assembly or debate, including sidewalks, streets, or public parks. Limited public forums are areas that have not been traditionally opened for public expression but the university has expressly designated them as areas where expression is permitted. Unlike traditional public forums, limited public forums may be restricted to use by subsections of the public or for particular uses. Limited public forums are more common than traditional public forums on university campuses; they might include forums designated for use by student organizations or areas designated for academic and political, but not commercial, expression.
When a university places restrictions on a limited or a traditional public forum, courts review the restrictions under a standard of strict scrutiny to determine whether they are valid under the First Amendment. The strict scrutiny standard examines whether the restriction is narrowly tailored to achieve a compelling government interest. This is a very difficult barrier to surmount, and it typically limits the restrictions a university may place on the forum to time, place, and manner of speech restrictions. In this way, universities are able to regulate speech in traditional and limited public forums according to the way in which the speech is conducted, but not its content.
Universities often contain nonpublic forums (also referred to as ‘‘reserved’’ or ‘‘closed’’ forums). These are mediums that have been reserved for purposes other than speech by the public or a segment of the public; this category might include administrative offices and in some cases classrooms and university publications. Courts will uphold a university’s restrictions in nonpublic forums as long as the restriction is reasonably related to a legitimate government purpose. A university may cite interests such as the efficient operation of the campus or the integrity of the university as a learning community as legitimate government interests. A nonpublic forum affords the university the opportunity to regulate on the basis of content, but the university is still obligated to make viewpoint-neutral decisions; that is, the university may restrict expression on a particular topic altogether, but it cannot restrict only one point of view regarding a given topic.
One of the most common areas in which universities impose restrictions on free expression is student newspapers or other university-sponsored student publications. The Supreme Court has never addressed the issue of whether a public university student publication is a public forum; however, the Court found that a high school newspaper was not a public forum, and therefore could impose reasonable restrictions on the publication, in Hazelwood School District v. Kuhlmeier. Lower courts, like the 7th Circuit in Hosty v. Carter, have relied on the Hazelwood decision, applying its framework to college newspapers. Therefore, it is likely that a university may impose viewpoint- neutral restrictions on student publications, as long as those restrictions are reasonably related to a legitimate university interest.
Restricting oral and written expression are the two most obvious ways in which a university might violate its students’ rights to free speech, but they are not the only ways. In Rosenberger v. University of Virginia, the Supreme Court found that the University violated students’ free speech rights by denying student activity funding to a student newspaper that promoted Christian beliefs. In that case, the Court held that the University’s restriction denying funding to publications that promote religious beliefs violated the principles governing limited public forums, because it discriminated on the basis of viewpoint. Similarly, in Board of Regents v. Southworth, the Court found that the First Amendment permits public universities to charge a student activity fee and use it to fund extracurricular activities, as long as the distribution of the funding is viewpoint neutral.
Although the limited restrictions on speech in public forums apply not only to students but also to professors and other university employees, it is important to remember that a public university may further restrict the rights of professors and university staff because they are public employees. The Supreme Court’s decision in Pickering v. Board of Education laid out the standards for evaluating the public employee’s First Amendment rights. In that case, the Court stated that when a public employee speaks on a matter of public concern, the university must balance the employee’s interest in commenting on the matter of public concern against the state’s interest, as an employer, in promoting the efficiency of its public services.
When the speech of a professor at a public university is called into question under the First Amendment, courts may examine it both in terms of forum and as the speech of a public employee. In Omosegbon v. Wells, for example, the 7th Circuit Court of Appeals examined the First Amendment rights of a professor who alleged that the university tried to prevent him from participating in events in the African-American community under both a forum analysis and the public employee speech test.
JULIE H. MARGETTA
Cases and Statutes Cited
See also Academic Freedom; Campus Hate Speech Codes; Content-Based Regulation of Speech; Content- Neutral Regulation of Speech; Disciplining Public Employees for Expressive Activity; Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988); Limited Public Forums; Pickering v. Board of Education, 391 U.S. 563 (1968); Public Forum Doctrines; Public/Nonpublic Forums Distinction; Student Activity Fees and Free Speech; Traditional Public Forums