In an opinion at the intersection of family and constitutional law, the Massachusetts Supreme Judicial Court (SJC) recently examined a parental non-disparagement order issued in child custody proceedings. In Shak v. Shak, 484 Mass. 658 (2020), the SJC held that an order prohibiting parents from disparaging one another was an unconstitutional restraint on speech in violation of the First Amendment to the United States Constitution and Article 16 of the Declaration of Rights, as amended by art. 77 of the Amendments.
Masha and Ronnie Shak had one child. When the child was one-year old, Masha filed for divorce and soon sought an emergency motion requiring Ronnie to vacate the marital home. A Probate and Family Court judge granted Masha temporary sole custody of the child and ordered Ronnie to vacate the home. The judge also issued temporary orders restraining both parents from posting information about the litigation on social media or disparaging the other, “especially when within the hearing range of the child.” Id. at 659.
Masha thereafter filed a complaint for civil contempt alleging that Ronnie had published numerous disparaging posts on social media in violation of the order. Ronnie answered, in part, that the judge lacked authority “to issue [a] prior restraint on speech.” Id.
At the contempt hearing, a second Probate and Family Court judge held that the non-disparagement order as entered constituted an impermissible prior restraint of speech. The judge concluded, however, that a more narrowly drawn non-disparagement order that furthered a compelling State interest would be acceptable. The second judge redrew the non-disparagement order in language that (1) limited the prohibition on social media posts to disparagement “about the other party’s morality” or parenting ability; (2) prohibited any non-media disparagement only where the child was within 100 feet of the disparaging parent or where the child might otherwise see, hear or read the disparagement; and (3) provided for termination of the order on the child’s fourteenth birthday. Id. at 660.
Rather than immediately implementing the new, narrower order, the judge reported two questions to the Appeals Court. First, are non-disparagement orders issued in the context of divorce litigation an impermissible restraint on free speech? Second, does protection of a minor child’s best interest render non-disparagement orders issued in the context of divorce litigation a compelling public interest and, therefore, a permissible limitation on free speech? The SJC granted an application for direct appellate review but declined to address the specific reported questions and, instead, considered whether the second judge’s non-disparagement order could stand.
“The term ‘prior restraint’ is used ‘to describe any administrative or judicial order forbidding certain communications when issued in advance of the time that such communications are to occur.’” Id., at 661, citing Alexander v. United States, 509 U.S. 544, 550 (1993), quoting M. Nimmer, Nimmer on Freedom of Speech § 4.03, at 4-14 (1984). By definition, a non-disparagement injunction prevents speech that has not yet happened is therefore a prior restraint. The SJC stressed that prior restraint on otherwise protected speech is the “most serious and the least tolerable infringement on First Amendment rights.” Id. at 661, quoting Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976). Therefore, a prior restraint on speech is acceptable only where the harm avoided is “grave”; the probability of the harm absent restriction is “all but certain”; and there exists no less restrictive means to mitigate the harm. Id. at 662. In short, prior restraint on speech requires exceptionally significant justification. Id. at 663, citing Commonwealth v. Barnes, 461 Mass. 644, 652 (2012).
The SJC accepted hypothetically the Commonwealth’s interest in protecting children “from emotional and psychological harm that might follow from exposure to one parent’s … disparaging words about the other,” but declined to hold that the interest is sufficiently “weighty” to justify prior restraints on speech. Id. at 663-64. The SJC held that in Shak, there was no showing that, absent the order, harm to this particular child was “either grave or certain. . . .” Id. at 664. Noting the child’s young age, inability to read social media, and the absence of evidence of unique vulnerabilities, the SJC held the order unconstitutional due to lack of findings of grave, imminent harm to the child. The SJC continued that concerns about potential harm should the child discover the speech in the future were too speculative to justify a prior restraint. In so concluding, the SJC noted that anti-harassment and tort remedies may be available to a disparaged parent and voluntary non-disparagement agreements entered into by parents remain enforceable. It further reminded lawyers and parents that a parent’s disparaging language may well factor into custody determinations.
Shak instructs family law attorneys seeking non-disparagement orders to offer case-specific evidence of a child’s unique vulnerabilities, perhaps with evidence of past harmful consequences of the child’s exposure to parental conflict. Expert testimony might well bolster such evidence. However, even if one secures a non-disparagement order, enforcement through contempt proceedings can be difficult. The order must be clear and unequivocal. In re Birchall, 454 Mass. 837, 838-39 (2009). Furthermore, courts may struggle with remedies for parents disparaging one another. But cf. Schechter v. Schechter, 88 Mass. App. Ct. 239, 247-48 (2015) (affirming suspension of parenting time where father’s negative behavior included disparaging mother in child’s presence).
Enforcement difficulties aside, family law attorneys should not misconstrue Shak to mean that non-disparagement orders should be avoided as unconstitutional. Indeed, the SJC especially endorsed voluntary non-disparagement orders, crafted by parties committed to civility, and cooperation. These agreements focus on the children’s best interests and remind parents that children benefit from parental harmony. Voluntary orders repeat what thoughtful parents already know: children experience disparaging language as conflict, and divorce conflict stresses children. The parents’ mutual promises in a notarized, court-approved agreement to refrain from harmful conduct may be far more meaningful to children and parents than a court-imposed speech limiting order ever could be.
Fern Frolin is Of Counsel to Mirick O’Connell, where focuses her practice on complex matrimonial cases. She strongly believes that nearly all family law matters can and should be settled and that the best matrimonial lawyers counsel their clients to consider their children’s best interests paramount in their settlement negotiations.
Tim Braughler is a Partner of Mirick O’Connell in the firm’s Boston office. Tim specializes in all aspects of family law including divorce, child custody, child support, alimony, paternity, adoptions, restraining orders, and pre- and post-nuptial agreements.
Spaulding v. Town of Natick School Committee: Allowing Free Speech while Accomplishing Municipal WorkPosted: June 6, 2019
The Middlesex Superior Court’s November 2018 decision on cross-motions for partial summary judgment in Spaulding v. Town of Natick School Committee, MICV2018-01115 (Nov. 21, 2018) (Kirpalani, J.), is a reminder that all constitutional rights (like all politics) are local. The case arose from a series of School Committee meetings, the type of quintessential local government activity repeated daily in hundreds of cities and towns throughout the Commonwealth. Notwithstanding this seemingly banal background, the issues in the case are at the heart of the First Amendment’s powers and its limits — namely, how strictly a governmental entity can regulate speech in a public forum it has itself created. The answer, according to Spaulding, is that a local government body can control speech just enough to allow it to focus on the tasks at hand, but no more.
In Spaulding, two mothers of former Natick Public School students had attempted to speak during “Public Speak” portions of Natick School Committee meetings. The School Committee reserved the Public Speak portion of each meeting to permit members of the public to address the School Committee without response from its members. The Committee had a participation policy for this portion of the meetings that, among other things, (1) limited each speaker to three minutes of time; (2) advised speakers that “[i]mproper conduct or remarks will not be allowed. Defamatory or abusive remarks are always out of order,” and (3) instructed speakers that they “may offer such objective criticisms of the school operations and programs as concern them, but in public session the [School] Committee will not hear personal complaints of school personnel nor against any member of the school community.”
The School Committee applied this policy to restrict or prevent the two mothers from speaking on at least three occasions. The ACLU, on behalf of Ms. Spaulding and Ms. Sutter, challenged the School Committee’s participation policy facially, and as applied to the two mothers. The plaintiffs argued that the policy was not content-neutral and failed to set definite standards on what speech was allowed. The plaintiffs sought partial summary judgment declaring portions of the participation policy unconstitutional.
The court first assessed whether Public Speak was a traditional, designated, or limited public forum, quickly concluding that the Public Speak is a “designated” public forum, or a forum “which the government has opened for use by the public as a place to assemble or debate.” In designated public fora, the government may impose reasonable time, place, and manner restrictions on the exercise of free speech rights. However, any content-based restrictions must pass strict scrutiny, meaning they must be narrowly tailored to advance compelling government interests.
The court accepted that the School Committee had a compelling interest in conducting its business in an orderly and efficient fashion and that it therefore had the right to manage public participation at its meetings so long as it did so using rules narrowly tailored to advance that end. To assess whether the School Committee’s rule barring “personal complaints of school personnel,” or complaints “against any member of the school community” was narrowly-tailored, the court first reviewed the School Committee’s jurisdiction. It determined that the School Committee had jurisdiction over their district’s superintendent, budget, and overall goals and policies. The School Committee exercised no direct control over personnel other than the superintendent, and therefore could properly bar personal complaints against personnel other than the superintendent from Public Speak. Attendees could, however, voice personal complaints about the superintendent, and the participation rules were unconstitutional insofar as they barred such complaints.
The court also took issue with the requirement that the comments be “objective.” It held (after reviewing definitions of “objective” and “subjective”) that while a requirement that comments be based on “externally verifiable phenomena” might be proper, the School Committee acted improperly in prohibiting subjective comments rooted in individuals’ concerns.
Finally, the court held that the portion of the policy barring those making otherwise germane and appropriate comments from identifying the parties involved was unconstitutional. The public’s free speech rights, the court held, superseded any interest the School Committee had in protecting community members’ privacy.
The court then turned to the section of the Participation Policy prohibiting “defamatory” or “improper and abusive” remarks, holding that the policy banning “defamatory” remarks was constitutional only to the extent that it barred speech that had actually been adjudicated defamatory. Otherwise, the policy would be an unconstitutional prior restraint on speech concerning public officials and public business. The court read a similar limit into the policy on “improper and abusive” remarks, holding it was only constitutional to the extent that it barred threats, fighting words, or obscene content – all types of speech at the outer limits of First Amendment protection.
The court then ruled on the plaintiffs’ as-applied challenges to the plaintiffs’ treatment at the January 8, February 5, and March 12 meetings.
On January 8, Spaulding had introduced herself as “the mother of a child that was mercilessly bullied into suicide here in Natick” before School Committee members cut her off. After hearing just her first sentence, the court ruled, School Committee members could not have known whether Spaulding’s comment would pertain to business within their jurisdiction. If particular students or teachers had bullied her child, then she had no right to say so at Public Speak, but if the bullying had somehow been committed by the superintendent, school operations, or school policies, then she did.
On February 5, Sutter began to speak about the “retaliation and retribution” she and her family had received “at the hands of the Natick Public Schools.” School Committee members quickly reprimanded her, insisted that she stop speaking, and then suspended the meeting. As with the analysis of the January 8 meeting, the court held that the School Committee cut Sutter off before she could make clear whether her complaints were about aspects of the school system within or outside of the School Committee’s jurisdiction. The court also noted that the Participation Policy did not bar discussion of Public Speak itself.
On March 12, Sutter again began to speak about “retaliation and retribution.” The School Committee reminded her that, under the participation policy, she could not discuss individuals or make defamatory statements. The court held that, again, Sutter had the right to discuss the superintendent or discuss operations or policies within the School Committee’s jurisdiction, whether her comments were positive or not.
What the Court’s Decision Means for Cities and Towns
Spaulding was settled shortly after the trial court’s decision, so there will be no appellate review. Nonetheless, the case holds some important lessons for local government entities.
First, Spaulding’s conclusion that Public Speak was a “designated” public forum implies that if the Natick School Committee had not included the Public Speak portion of the meeting in the first place, it would not have created a public forum in which it had to hear the plaintiffs. Government entities cannot choose whether traditional public fora like sidewalks and parks will be open to speech, but they can decide whether to designate and maintain non-traditional public fora.
Second, the fact that the plaintiffs sought to speak during the “Public Speak” portions of the school committee’s meetings, rather than during the School Committee’s conduct of its scheduled business, is also important because the Massachusetts Open Meeting Law requires public bodies to set agendas for their meetings and adhere to the topics on the agenda. G.L. c. 30A, § 20(b). The plaintiffs did not appear to challenge, for instance, the School Committee chair’s asking certain audience members to restate their comments at a later part of the meeting when particular issues were due to be taken up. Further, as noted in the case, the Open Meeting Law also gives the chair of a local public body the authority to determine whether to allow public input at all during the conduct of its business. Id., § 20(g). Thus, absent an open-ended portion of an agenda such as the “Public Speak” portion of the Natick School Committee meetings, public bodies may have significantly more power to ask members of the public to focus their comments on the particular issue at hand. In other words, public bodies certainly may do their jobs, and may focus on doing so.
Third, notwithstanding these first two lessons, refusing to create opportunities for public dialogue is likely a shortsighted approach to addressing First Amendment issues. No local government entity can completely immunize itself from criticism, and neither should it be able to. Van Liew v. Stansfield, 474 Mass. 31, 38–39 (2016) (remarks about a local official are “at the core of the speech that the First Amendment to the United States Constitution protects”). Providing opportunities for public input, as uncomfortable as it may be for elected or appointed officials to hear, promotes good governance and an opportunity for those officials to engage on important issues. Thus, local governments should think very hard before simply closing off all opportunities for public input at public meetings.
Fourth, the court made clear that public bodies could limit public comments to issues within the public body’s jurisdiction. However, where that jurisdiction begins and ends can be difficult to determine. In Spaulding, the court agreed that if the plaintiffs had in fact begun to discuss particular personnel (other than the superintendent) or students, the School Committee could end those comments because the Committee’s role was limited to policy issues. Local government officials therefore need not fear that they will entertain comments that are outside of their roles or face pressure to assert jurisdiction over issues on which they legally have no say. On the other hand, one could argue that the School Committee’s jurisdiction was broad enough to include investigating those incidents to determine whether they warranted policy changes. Further, while not at issue in Spaulding, one can easily imagine a situation in which a local board or committee had previously asserted that it did have broad jurisdiction to address a particular issue, which could make it difficult to exclude speech on that issue later.
Finally, once the government body permits the public to speak on a topic within the government body’s jurisdiction, and the speaker does so at the appropriate time, the government body cannot silence the speaker based on what they say on that topic. This is at the core of First Amendment jurisprudence. The government cannot tell the public what to say; rather, it can only place reasonable restrictions on where and when to say it. The School Committee’s key error in Spaulding, it appears, was not in opening the School Committee meetings for speech, or in requiring speakers to stay on topic. Rather, the mistake was in prematurely cutting off speakers they believed would discuss topics the public officials deemed inappropriate. Although it can be difficult to do so, public officials should remain open to letting members of the public make their complete comments and, only if necessary, redirect speakers to stay on topic. Further, fears that what a member of the public might say could create liability for public officials (e.g., if members of the public discuss private matters) can be overstated: given the speech courts require be permitted, it is unlikely that a court could construe a public officials’ mere listening to speech as endorsing a particular viewpoint.
Mina S. Makarious is a partner at Anderson & Kreiger LLP in Boston. He is Town Counsel to the Towns of Concord and Lexington, and advises these and other municipalities on constitutional, governance, and other issues. He is the Co-Chair of the BBA’s Environmental Section.
Paul M. Kominers is an associate at Anderson & Kreiger LLP. He advises municipal and other governmental clients on litigation, constitutional, governance, and other issues.
by Melissa Garlick
Since 2017, college and university students across the country, including in Massachusetts, have noticed their campuses papered with fliers declaring, “It’s OK to be white” – a phrase with a long history in the white supremacist movement.
What may be surprising to some is that –although the seeming purpose of this coordinated effort by white supremacists is to propagandize, stoke fear, spread hate, and divide campus communities – these fliers are constitutionally protected speech.
While hate speech on campus is generally protected speech, that is not the end of the matter. Administrators and the campus community must recognize and prepare to address the harm that can stem from such speech on campus. A clear and forceful response to constitutionally protected hate speech will prevent protected speech from escalating to bias-motivated crimes and will ensure an inclusive climate where all community members feel safe and welcome.
Free Speech vs. Hate Crimes
The flyer incidents illustrate the important –yet often overlooked – dividing lines between free speech and hate crimes. Even some of the most heinous speech is not criminal, but rather, is largely protected by federal and state constitutions. The ability to express controversial and even offensive ideas is a cornerstone of our nation’s democratic ideals; it is one of the principal ways our nation is distinguished from many countries around the globe where expression of unpopular viewpoints can be – and often is – punished.
In order for an incident to be considered a hate crime, there must be a criminal offense – designated by statute – specifically and intentionally targeting an individual or property in whole or in part because of the victim’s actual or perceived race, religion, national origin, gender, gender identity, sexual orientation, or disability. See e.g., M.G.L. c. 265, § 39; 18 U.S.C. § 249. Such criminal acts become hate crimes only where the perpetrator intentionally selects the victim because of the victim’s personal characteristics. Id.Even more common than hate crimes on colleges campuses, are bias incidents (also referred to as hate incidents), in which a person makes bigoted or biased comments to another individual, distributes hate literature (like the aforementioned flyers), or conducts other similar other non-verbal communication. Although they are not hate crimes and often do not violate criminal or civil law, bias incidents nonetheless can be deeply hurtful and offensive.
Hate Incidents on College/University Campuses
Every year, thousands of students are the victims of hate crimes and bias incidents on college campuses, including bias-motivated slurs, vandalism, threats, and physical assaults. According to Federal Bureau of Investigation (FBI) statistics, schools and colleges/universities remain the third most-frequent location for hate crimes.
Over the past year, the Anti-Defamation League (ADL) has tracked not only a spike in anti-Semitic and hateful incidents on campus, but has documented the changing nature of incidents and their profound impact on communities. Reports of hate rhetoric and bias incidents, including anti-Semitic and racist graffiti, extremist speakers, and racist fliers, have increased markedly. Although most of those incidents would not qualify as hate crimes or be even criminally punishable, they are deeply painful to individuals and campus communities.
For example, on Valentine’s Day in 2017, gift bags were distributed to students at a Central Michigan University student group meeting including a card that read, “my love 4 u burns like 6,000 jews” [sic] and featured a photograph of Adolf Hitler. Even though the creator/distributor of the valentine card turned out not to be a student, the impact of the incident resonated through the campus community. University President George Ross issued a forceful statement and more than 100 faculty members issued an open letter to the University community. The letter stated: “First and foremost, we stand in unflinching solidarity with Jewish communities on our campus and beyond. We uphold you now and always. We will do everything in our power to protect you . . . .” This incident did not involve speech that crossed the First Amendment line into criminal behavior. However, the strong University response underscores the significant impact of such incidents on a person’s sense of value and belonging in a place of learning that they also call home. When hate speech appears on campus that is demeaning to a group of people and contradictory to the values of diversity and inclusion – though it may be protected by the First Amendment – trust is eroded and communities need to heal.
ADL also has tracked a dramatic uptick in incidents of white supremacists targeting college campuses via the distribution of literature, speaking engagements, or trolling/harassment efforts. Colleges and universities are traditionally seen as bastions of free speech; white supremacists capitalize on that by intentionally designing their efforts and words (e.g., the “It’s okay to be white” fliers) to fall under the umbrella of free speech. Since September 2016, ADL has tracked more than 500 incidents of white supremacist propaganda on college and university campuses, with almost 300 such incidents occurring during the 2017-18 school year. The vast majority of white supremacist campus actions involve hateful fliers (“Imagine a Muslim-Free America”) and stickers (“Make American White Again”), but white supremacists also have sent anti-Semitic faxes and delivered highly publicized on-campus speeches.
Considerations for College/University Administrators
As early as the 1600’s, John Milton introduced the now familiar concept of the “marketplace of ideas” which, in essence, posits that “the ultimate good desired is better reached by free trade in ideas-that the best test of truth is the power of the thought to get itself accepted in the competition of the market.” Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J. dissenting). Yet, this marketplace is not self-executing. It depends on people’s willingness to respond to words which are intended to demean, humiliate, and deride. Educational institutions must take into account that historically marginalized and other minority groups are under a greater burden and may be unable to adequately respond when speech targets their personal identities and sense of self. It is critical that colleges and universities speak and act, both against hate and toward a civil learning environment that values inclusion, equity, and open expression.
Reporting hate crimes on campuses, for example, is a crucial part of successful prevention of hate incidents. In 1998, Congress enacted an amendment to the Higher Education Act requiring all colleges and universities that receive federal aid to collect and report hate crime statistics to the Department of Education (ED). See Clery Act, 20 U.S.C. § 1092 (f)(1)(F). Currently, colleges and universities must report hate crime statistics for all campus crime categories.
Unfortunately, however, the ED’s current hate crime statistics reflect substantial underreporting. Indeed, the majority of hate crime victimizations go unreported. Colleges and universities have tended to either report the crime without indicating that it was bias-motivated or fail to report the crime at all. Such underreporting is underscored by the fact that the limited ED data conflict with campus hate crime information collected by the FBI under the Hate Crimes Statistics Act, 28 U.S.C. § 534, although the same reporting criteria apply.
Reporting hate crimes and training campus police should be a part of broader response protocols established by colleges and universities to quickly and effectively address hate crime incidents and build trust within campus communities. Campus police should take seriously all reports and allegations of hate crimes and incidents, bias, vandalism, graffiti, and flyering.
University administrators and campus stakeholders have a responsibility to use their own expressive rights to challenge and confront heinous ideas, rather than attempt to ignore them or stifle discussion. Faculty and students should be educated on the parameters of their First Amendment free speech rights and campus response policies and plans should be updated.
Ultimately, the most effective responses and prevention measures by colleges and universities are those that clearly recognize the harmful impact bias incidents have on campus communities, regardless of legal distinctions between hate crimes and bias incidents. It is only through strong action and counter-messaging that trust can be maintained, communities can heal, and the rising tide of hate on campuses may be stemmed.
 The fliers are a byproduct of a larger trolling campaign that emerged out of 4chan, a popular internet discussion forum infamous for the studied offensiveness of many of its members and its association with the white supremacist alt-right movement. See “From 4Chan Another Trolling Campaign Emerges,” ADL, Nov. 6, 2017, available at https://www.adl.org/blog/from-4chan-another-trolling-campaign-emerges.
 See Clery Act Requirements, Crime Categories Covered, available at https://clerycenter.org/policy-resources/the-clery-act/.
 See “Majority of Hate Crime Victimizations Go Unreported to Police,” Office of Justice Programs, Bureau of Justice Statistics, June 29, 2017, available at https://www.bjs.gov/content/pub/press/hcv0415pr.cfm.
 See, e.g., Rocheleau, Matt, “UNH stats showing no hate crimes in recent years raises red flag, experts say,” The Boston Globe, June 8, 2017, available at https://www.bostonglobe.com/metro/2017/06/08/unh-stats-showing-zero-hate-crimes-recent-years-raises-red-flag-experts-say/oEnPB4mYd0keau6vFpA4CP/story.html.
 For additional guidance, see Hate/Uncycled: ADL Resource for Administrators and Law Enforcement Teams, available at https://www.adl.org/media/11138/download (2018); Hate Crimes On Campus: The Problem and Efforts to Confront It, U.S. Department of Justice Bureau of Justice Assistance, available at https://www.ncjrs.gov/pdffiles1/bja/187249.pdf (October 2001).
Melissa Garlick is the National Civil Rights Counsel at the Anti-Defamation League (ADL), a non-profit organization dedicated to combatting bigotry, prejudice, and anti-Semitism. She is a member of the Civil Rights and Civil Liberties Steering Committee of the BBA.
by Jeffrey J. Pyle
Debates about free speech on campus have long centered on “speech codes”—overt policies that restrict constitutionally-protected speech deemed offensive to others. Groups such as the American Association of University Professors (AAUP), the American Civil Liberties Union (ACLU), and the Foundation for Individual Rights in Education (FIRE), consistently oppose such policies because, in the AAUP’s words, “On a campus that is free and open, no idea can be banned or forbidden. No viewpoint or message may be deemed so hateful or disturbing that it may not be expressed.”
Speech codes, however, are not the only restraint on freedom of expression on today’s college campus. Public and private universities and state governments have adopted policies that pose a less direct but substantial threat to peaceful protest and debate on important issues. This article discusses two of them: the practice of charging student groups that invite controversial speakers to campus for security costs based on the likely reaction to the speech, and state anti-“Boycott Divestment Sanctions” legislation that applies to public universities.
- Security Fees Based on Likely Reaction to Speech.
In Forsyth Cty., Ga. v. Nationalist Movement, 505 U.S. 123, 134 (1992), the Supreme Court struck down a Georgia county ordinance that permitted the assessment of security fees for demonstrations on public property. Under the ordinance, county administrators had discretion to impose higher fees for events featuring controversial speakers, based on the anticipated hostile reaction to the speech. This, the Court held, amounted to unconstitutional content regulation: “Speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob.” Id., 505 U.S. at 134-35.
In recent years, courts have applied this principle to speeches on public university campuses. In Young America’s Foundation v. Napolitano, No. 17-CV-02255-MMC, Doc. 62 (N.D. Cal. Apr. 25, 2018), the University of California, Berkeley, billed $15,738 to a conservative group that had invited right-wing commentator Ben Shapiro to campus, allegedly to cover necessary security for the event. The relevant university policy adhered to Forsyth’s directive that the amount of the fee cannot be based on the likely reaction of hecklers. However, Berkeley failed to explain why it charged three times as much for Shapiro as it had charged for a different high-profile speaker, U.S. Supreme Court Justice Sonya Sotomayor. Accordingly, the Court denied Berkeley’s motion to dismiss the as-applied First Amendment challenge to the fee assessed on the conservative group.
Private universities, of course, are not legally bound by the First Amendment, but they still face the important policy question of whether to pass security costs onto organizers of campus events. Significant security costs will often be unaffordable to student groups, and a policy imposing them can sometimes work to prevent the exchange of ideas on campus. Such fee policy may also embolden persons seeking to shut down speech through threats of violence, thereby perpetuating the “heckler’s veto.” Accordingly, even private universities should craft their policies on this subject with regard for their impact on First Amendment principles.
- Anti-“Boycott Divestment Sanctions” Statutes
The First Amendment includes the right to organize boycotts that are intended to change government policy. NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) (holding that boycotts intended to “influence governmental action” are protected under the First Amendment). However, according to the National Coalition Against Censorship, at least 17 states have passed statutes that seek to penalize those who join the “Boycott Divestment Sanctions” (“BDS”) campaign, a movement that seeks to influence Israel’s policy toward the Palestinians through economic pressure. A Texas statute, for example, provides that any company wishing to contract with the state must certify that it “does not boycott Israel,” and will not do so during the term of the contract. See Tex. Gov’t Code Ann. § 2270.001 et seq.
The provisions of state anti-BDS statutes differ, but they generally apply by their terms to public universities, as to any other state institution. Last year, the University of Houston required an external speaker to pledge she would not support BDS before she could be paid for conducting a workshop on campus. She refused, and an administrator faked her signature to process payment. (The administrator later resigned.)
Anti-BDS statutes are of doubtful constitutionality even outside academia. Koontz v. Watson, C.A. No. 17-4099-DDC-KGS, Doc. 15 (D. Kan. Jan. 30, 2018) (issuing preliminary injunction against Kansas anti-BDS statute). Within the academy, their application would frustrate the free interchange of ideas by depriving students of the ability to hear speakers—on any subject—who happen to support the BDS movement, or who on principle object to signing pledges as a condition of speaking. The AAUP recently released a statement condemning any requirement that academic speakers sign anti-BDS pledges, while reiterating its opposition to all academic boycotts, including those against Israel. At the very least, states with such laws on the books should clarify that they have no application in the academic context.
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To protect free speech on campus, universities must do more than foreswear speech codes. They must also ensure that other policies governing campus life do not impinge on the interchange of ideas “that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 508–09 (1969).
Jeffrey J. Pyle is a partner in the Media and First Amendment Practice Group at Prince Lobel Tye, LLP in Boston, Massachusetts. As a high school student, Jeffrey and his brother brought a successful challenge to his school district’s speech code. Pyle v. School Committee of South Hadley, 423 Mass. 283 (1996).