Security Versus Free Speech On College Campuses
Officials must decide how to respond to the protests and violence that can come with free speech on college campuses.
Controversial speakers taking advantage of free speech in colleges and universities have forced campus officials to deal with waves of protests and violence in recent years, raising questions of tolerance for free speech on college campuses.
Facing what are often massive security costs as well as potential damage to their campus and threats to their community, officials must decide whether or not to put a price on the First Amendment.
Regardless of your opinion on the cause of this issue— the growing use of social media, an oversensitive student population, a divisive president— it’s not going away anytime soon.
That’s why every school should have a plan to handle these incidents. But before developing those plans, officials must understand the changing landscape of college campuses today.
Students On The Free Speech Debate On College Campuses in the U.S.
The results were alarming for proponents of the First Amendment. Below are the results of one question.
Less than half of students in all three political designations understood that the First Amendment protects hate speech, including less than a third of all female respondents.
Another question in the survey gave students the following scenario:
“A public university invites a very controversial speaker to an on-campus event. The speaker is known for making offensive and hurtful statements.”
It then described an outcome to the event and asked students for their views on it. The results are shown below:
Perhaps the most alarming aspect of these results is that over 60 percent of students who identify as Democrats find this behavior acceptable, and nearly the same percentage of males (57 percent) find it acceptable.
Then Villasenor presented a more extreme outcome:
An alarming aspect of these results is that nearly a third of male students (30 percent) believe this behavior is acceptable. Villasenor writes the following about these results:
“The fraction of students who view the use of violence as acceptable is extremely high. While percentages in the high teens and 20s are “low” relative to what they could be, it’s important to remember that this question is asking about the acceptability of committing violence in order to silence speech. Any number significantly above zero is concerning.”
Finally, Villasenor gave the students two scenarios, asking which of the two it’s more important for colleges to fulfill:
These results show a real divergence between the college environment preferred by a significant percentage of students and one that protects free speech on college campuses at all costs.
Another study by the Higher Education Research Group found a record level of polarization among incoming college and university freshman in 2016 along with rising levels of civic engagement, indicating students are entering college more likely to take part in protests.
Government Guidance on Free Speech in Colleges and Universities
The First Amendment, of course, doesn’t exclude hate speech.
There have been a few instances where the Supreme Court limited the freedom of speech, but most rulings have been subsequently interpreted differently and are typically not thought to have merit in the free speech on college campuses debate.
Campus Safety does not give legal advice, but one of the few limits to freedom of speech that’s worth noting here is the 1969 Brandenburg v. Ohio Supreme Court ruling, which determined that speech “directed to inciting or producing imminent lawless action and is likely to incite or produce such action” is excluded from the First Amendment.
Unfortunately, there’s been very little official guidance from lawmakers on how schools should respond to controversial speakers on campus, putting administrators in the predicament of weighing the pros and cons of free speech on college campus then trying to justify their decision in the face of threats of a lawsuit (we discuss lawsuits in more detail later on).
“One gray area of the law is at what point can a university say no to a speaker because of the security costs and what kind of showing would a court require to defeat a First Amendment claim [in a lawsuit],” Janet Napolitano, the University of California president and former Homeland Security secretary in the Obama administration, told Politico. “Because, while the University of California has spent a great deal, the pocketbook is not endless. Right now, there’s simply no guidance from the courts on this.”
That lack of guidance has led officials from different colleges to take different approaches when controversial speakers like Milo Yiannopoulos and Richard Spencer are invited to their campus.
At a hearing on free speech in colleges and universities hosted by the U.S. Senate Judiciary Committee in June, American University Vice President of Campus Life Fanta Aw said she’d prohibit people from speaking on campus if their speech had the potential to provoke violence or poses a direct threat to someone in the community.
But Senator Richard Durbin (D-Illinois) said he disagreed with that reasoning because it was highly subjective.
Another lawmaker at that hearing, Senator Charles Grassly (R-Iowa), criticized the idea that speakers should be considered by colleges on a case-by-case basis.
“The First Amendment does not permit arbitrary prior restraints on speech by university administrators on a case-by-case basis,” Grassly said. “Any great university would welcome numerous speakers whose positions made the president and many others on campus uncomfortable.”
Senator Dianne Feinstein (D-California), on the other hand, said it’s unreasonable to force colleges and universities to accommodate all speakers on campus, pointing to the vast resources required to deal with the likely protests and violence that some speakers provoke.
“The fact of the matter is that there are certain occasions on which individuals assemble not to act peaceably, but to act as destructively as they possibly can,” Feinstein said.
Following Auburn University’s decision to ban white nationalist Richard Spencer from speaking on campus, the person who invited him to speak sued the school. Shortly after the lawsuit’s filing, a U.S. District Judge barred Auburn from blocking Spencer, saying there was no evidence Spencer advocates violence.
“Discrimination on the basis of message content cannot be tolerated under the First Amendment,” the judge wrote in his ruling.
Spencer spoke amid protests that campus police said remained largely peaceful.
The Free Speech Debate on College Campuses
Emboldened following the district judge’s decision in the Auburn University case, Spencer has since threatened a lawsuit against other public universities. When the University of Florida initially blocked his planned speaking event, he threatened to sue the university, alleging that the school was violating his freedom of speech.
The university relented and allowed Spencer to speak. The event cost UF $500,000 in security fees.
“I really don’t believe that’s fair to the taxpayer, is now subsidizing through these kind of events the security and having to subsidize his hate speech,” UF President W. Kent Fuchs said following the event.
In October, the person who invited Richard Spencer to Ohio State filed a lawsuit against the university when officials denied him venues for the event on three separate occasions.
“The University values freedom of speech,” read a statement from Ohio State officials following the announcement. “Nonetheless, the University has determined that it is not presently able to accommodate [the resident’s] request to rent space at the university due to substantial risks to public safety, as well as material and substantial disruption.”
The resident who filed that lawsuit also filed one against Penn State University in the same month after PSU President Eric Barron said a Spencer talk would be a security risk for the campus.
“After critical assessment by campus police, in consultation with state and federal law enforcement officials, we have determined that Mr. Spencer is not welcome on our campus, as this event at this time presents a major security risk to students, faculty, staff and visitors to campus,” read PSU’s statement. “It is the likelihood of disruption and violence, not the content, however odious, that drives our decision.”
By focusing on security costs and explicitly stating that Spencer’s views did not play a role in their decision, PSU tried to avoid Auburn’s fate should the decision be challenged in court.
Other schools have allowed Spencer to speak. Board members for the University of Cincinnati approved a Spencer-hosted event, saying in a statement, “For higher education to maintain its pride of place as the marketplace of ideas, we have a responsibility as teachers, scholars, learners and trustees to drive out bad ideas with better ones.”
Similarly, in defending their decision to allow alt-right commentator Milo Yiannopoulos to speak on campus, Cal State Fullerton officials issued the following statement on the university’s Free Speech webpage:
“Once a speaker has been invited by a student group, the campus is obligated and committed to acting reasonably to ensure that the speaker is able to safely and effectively address their audience, free from violence or disruption.”
Other schools, such as the University of Maryland, UC San Diego and Cornell University, have passed off partial security costs to students. This has been a controversial practice that some consider a form of unconstitutional censorship, citing the 1992 Supreme Court decision Forsyth County v. Nationalist Movement. New Mexico State University Police Chief and CS contributing writer Stephen Lopez recommends institutions consult with legal counsel to ensure any charges meet Forsyth requirements.
Free Speech on College Campuses in 2018
So where will the debate over free speech on college campuses go from here? That question is the subject of much discussion among campus officials.
“It’s the No. 1 topic of the year, I would say, for folks in my business,” said Kevin Kruger, president of the Student Affairs Administrators in Higher Education.
Some officials are calling for a consensus on how to handle controversial speakers.
“There has to be a national dialogue among universities and across the country on how we can guarantee the ability to express your opinions and also to know that students can come to school and stay alive and well,” Napolitano told Politico.
But Napolitano and other college officials also stressed the importance of educating students on the First Amendment and free speech on college campuses.
“What we’re trying to do is to teach the students you can have civil discourse, that you can disagree with each other without being disagreeable,” Steven Leath, president of Auburn University, told Politico.
College officials may disagree on how dangerous protests and other forms of political activism will be in 2018. They may also disagree on where a policy for handling controversial speakers should come from (be it Congress, the courts, or campus officials).
One thing that’s not up for debate, however, is that colleges have a lot to sort out to ensure a safe and open campus environment going forward. We wish them luck.