By Dave Roland
and Bill Kenworthy
First Amendment Center research assistant
Public colleges and universities frequently make their facilities available
to speakers unaffiliated with the campus, seeking to provide educational
experiences outside the classroom. Sometimes these speakers are chosen by the
administration, sometimes by students. Regardless of who selects a speaker, once
a university has created a forum on its campus, the same First Amendment
protections will apply.
A school has no obligation to grant every student-group request for guest
speakers. Administrations may create regulations for handling requests, and at
least one court has held that universities may be justified in denying
applications if they have reason to believe that the speaker will advocate
violent rebellion against the government, or immediate, destructive, and
disruptive action against the host institution. Generally, however, courts have
held that when an audience brings someone to campus to speak, the school bears a
constitutional responsibility not to interfere.
The situation is different if the speaker is uninvited. Campuses usually
require uninvited speakers to apply for a permit and can limit where and when
these speakers speak. A public college or university is constitutionally
permitted to place certain time, place, manner, and (in very limited
circumstances) even content-based restrictions on speech, as long as the
restrictions are reasonable, apply to everyone, are in line with the school’s
educational mission, and do not discriminate according to viewpoint.
Such restrictions may run into constitutional trouble if the school
administration’s effort is seen as an attempt to block particular individuals,
topics, or points of view. In a string of cases decided during the Vietnam War,
federal courts clearly established that regardless of the controversy that might
be caused by a speaker’s presence or the content of the message, inflammatory
guests could not be denied the opportunity to be heard in an appropriate forum
on public college campuses. To prevent their ideas, however distasteful to some,
from being presented on campus would be an exercise of prior restraint, which
the Supreme Court has said is generally (though not always) unconstitutional.
Recently the question of the appropriate forum has become the key factor in
determining whether an uninvited speaker may speak on campus.
Recent cases heard in the circuit courts focus on whether a college or
university campus is open for use to the general public or reserved for
students, faculty, and invited speakers. The 4th U.S. Circuit Court of Appeals
in ACLU v.
Mote (2005) and courts within the 5th Circuit have found college
campuses to be limited public forums. This means that they are not traditional
public forums such as public streets or parks available for anyone to use at any
time, but have been opened to the public for limited use. Usually in such
instances an individual or group must reserve time to speak and may speak only
in designated areas. When a speaker does not follow the institution’s policy
concerning uninvited speakers, he can be prohibited from speaking and asked to
leave the campus.
These restrictions are permitted in a limited public forum, but only if they
are viewpoint-neutral and reasonable in light of the objective purposes served
by the forum. In the case of a campus, this objective purpose is the education
of the students. To accomplish this purpose the school focuses on the students
and other members of the school’s community. “Accordingly, [the campus] has not
been traditionally open to the public at large, but instead has been a ‘special
type of enclave’ that is devoted to higher education” (U.S. v. Grace, 461
U.S. 171, 180 (1983)).
On the other hand, as is the norm among the circuits, the 8th Circuit ruled
differently in a case concerning an uninvited speaker, Bowman v.
White. The court ruled that specific parts of the University of Arkansas
at Fayetteville campus were considered an unlimited public forum. Therefore, a
higher standard of scrutiny is used when restrictions are put on speech: Any
restriction must be content-neutral and narrowly tailored to serve a significant
government interest. The court looked at the university’s policy and found that
one part of it, a cap of five eight-hour days per semester in which one may use
a given space, was not narrowly tailored and was an unnecessary abridgement of
constitutional free-speech rights.
As courts have addressed the questions about these controversial Vietnam
War-era speakers, they saw the need to confirm First Amendment protection of
citizens’ right to hear what might be said. The First Amendment serves no
purpose if the right to free speech is countered by the right to deny that
speech an audience. The protection of a people’s right to hear is of particular
importance on college campuses, where students’ intellectual development is
dependent on the “free trade in ideas,” as Justice Oliver Wendell Holmes said in
his 1919 dissent in Abrams v.
U.S. The 5th U.S. Circuit Court of Appeals, in a holding echoed by
numerous district courts, affirmed this concept in Brooks v. Auburn
University (1969), adding that listeners’ right to hear a speech is in no
way diminished by speaker’s being a convicted felon and advocate of violent
revolution against the government.
In recent years, such campus controversies have arisen less from the actions
of school administrators trying to block a speaker’s message than from students
or outsiders trying to do so. Some state legislatures have entertained measures
to cut funding to an institution that hosts a disfavored speaker, though their
efforts have not been successful to date. Students will occasionally pack
lecture halls and try to shout down speakers who take an unpopular approach.
Happily, however, few speakers are denied the opportunity to appear on
campus, regardless of the controversy that may accompany their visit. Recent
examples of this point are Penn State University’s decision to allow an
appearance by a transsexual supporter of the North American Man-Boy Love
Association in connection with a program organized by the Womyn’s Concerns
student group, and a series of campus appearances by David Horowitz in which he
attacked the principles of affirmative action and slavery reparations. The
schools made clear that the opinions of the speakers did not necessarily reflect
those of the institution, but they allowed their students to hear them.
That was not always the case, however. In the 1980s some law schools began refusing to provide access and assistance to military recruiters because the military’s policies regarding homosexuals was inconsistent with the schools’ non-discrimination policies, which deny their resources to employers who discriminate by race, national origin, gender, religion or sexual orientation. These policies conflicted with the military’s “don’t ask, don’t tell” policy, which, in 1993, became the official policy concerning homosexuals in the military. This policy allowed the military to exclude or discharge anyone who stated that he or she was homosexual or engaged in homosexual acts.
The law schools’ treatment of military recruiters led then-Rep. Gerald Solomon of New York to sponsor an amendment to the 1994 defense-appropriation bill that proposed to withholding Defense Department funding from any educational institution with a policy of denying or effectively preventing the military from obtaining entry to campuses or access to students on campuses for recruiting purposes. This amendment, known as the Solomon Amendment, was expanded in 1997 so that schools would lose all federal funding. It was amended again in 2004 to ensure that military recruiters were given at least the same quality and scope of access as any other employer.
An association of 36 law schools and professors known as the Forum for Academic and Institutional Rights responded by suing the government, claiming that the Solomon Amendment infringed upon their First Amendment rights of free speech and association.
FAIR claimed that the Solomon Amendment forced them to endorse a message contrary to their non-discrimination policy. They also said that it unconstitutionally compelled them to associate with an organization whose policies go against their own. Both aspects, they said, significantly affected the schools’ ability to express their message that discrimination on the basis of sexual orientation is wrong.
In a unanimous decision on March 6, 2006, the U.S. Supreme Court ruled in Rumsfeld v. FAIR that the Solomon Amendment was constitutional. The opinion said that “the Solomon Amendment regulates conduct, not speech. It affects what law schools must do — afford equal access to military recruiters — not what they may or may not say.” The Court said the school’s “accommodation of a military recruiter’s message does not sufficiently interfere with any message of the school” and “nothing about recruiting suggest that law schools agree with speech by recruiters, and nothing about the Solomon Amendment restricts what the law schools may say about the military’s policies.”
On the issue of expressive association, the justices said “students and faculty are free to associate to voice their disapproval of the military’s message” and “a military recruiter’s mere presence on campus does not violate a law school’s right to associate, regardless of how repugnant the law school considers the recruiter’s message.”
The U.S. Supreme Court has stated that “State colleges and universities are not enclaves immune from the sweep of the First Amendment” (Healy v. James, 408 U.S. 169, 180 (1972)). Those who speak on campuses are afforded full protection. However, the Supreme Court also said “the First Amendment does not guarantee access to property simply because it is owned or controlled by the government” (Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 406 U.S. 37, 46 (1983)) and that reasonable time, place, and manner restrictions are allowed.
Updated February 2007