Thoughts on Some Less-Obvious Threats to Campus Free Speech

Pyle

by Jeffrey J. Pyle

Legal Analysis

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.

  1. 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.

  1. 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).