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2010 December 13 - 12:00 am

POV: Free Speech Rules Can Create Legal Risks for Colleges - Here’s How To Avoid Them

Mary L.
Dowell

David A.
Urban

The 1960s and early 1970s established public college campuses as areas in which Americans exercised free speech rights with unprecedented vigor. The results included highly visible clashes between students, protesters, and academic administration; police intervention; and even violence. Another perhaps inevitable result was a plethora of litigation. Out of the turmoil, a settled system of jurisprudence should have emerged to establish how campus speech can be regulated.

But that didn’t happen. Instead, even as 2011 dawns, the scope of free speech protection on public college campuses is both murky and contentious. Moreover, the law has developed to make it very easy for students and other individuals to sue colleges for free speech violations. Even when no significant monetary damages are at issue, successful free speech litigants can recover large attorneys’ fees awards, sometimes in the hundreds of thousands of dollars. Even more troubling than the administrative burdens and financial costs of a lawsuit, however, is the adverse publicity of being accused of free speech violations; worse yet is being found guilty of them and having to live with a consent decree or judgment.

Although the law lacks clarity in many respects, educational institutions can take certain specific measures that will help ensure compliance with free speech doctrine. What follows are some of the risks and significant ways they can be reduced.

First Amendment Guarantee

The First Amendment was added to the U. S. Constitution in 1791 as part of the Bill of Rights. It says that “Congress shall make no law . . . abridging the freedom of speech, or of the press . . . .” Through the Fourteenth Amendment, this free speech guarantee applies to state governments, which includes state public educational institutions.

Typically, a student who believes his or her free speech rights have been violated will allege deprivation of constitutional rights under a 19th Century civil rights statute, 42 U.S.C. section 1983, which allows the individual to recover not only for economic loss, but in appropriate cases, emotional distress damages and punitive damage. Section 1983 also allows a court to grant an injunction against the college, and allows the plaintiff to recover his or her attorneys’ fees from the defendants in the lawsuit.

Section 1983 can be invoked not only by students but by outsiders — members of the public who seek to use the campus for free speech activities. In many cases, these include groups with a religious message they seek to spread on campus, groups opposing abortion, and groups with political or environmental messages.

Forum Analysis

It is important for public colleges to understand the concept of “forum analysis,” developed for First Amendment law in general. A central tenet of forum analysis is that the government can regulate even speech that is protected by the First Amendment if the regulation satisfies particular requirements. The requirements vary based on the nature of the “forum” at issue.

Although the law has evolved over the last several decades, there are basically four types of forums — public, designated public, limited and non-public.

In a public forum, such as city street or park, the regulation must meet heightened scrutiny. The regulation must also satisfy heightened scrutiny in a “designated public forum,” which is a setting specifically created by the government for free speech.

But in a “limited” public forum — a forum created for specific users or topics of speech — the government can restrict access as long as the restriction does not discriminate based on viewpoint, and the restriction is reasonable. A similar low level of scrutiny applies in a non-public forum, the category which encompasses most government property, such as government offices.

Courts have generally held that a public college or university campus, in its entirety, is not a “public forum” equivalent to a public street or walkway. Rather, a college is a series of government facilities including classrooms, meeting areas and other areas that are subject to lesser free speech scrutiny. Some courts have held, however, that campus areas which are normally open to the public, such as quads and walkways, must be treated as public forums in some respects.

Even as to public parts of the campus, colleges can apply valid regulations on time, place, and manner. These restrictions must be blind to content and viewpoint, and reasonably govern mechanics such as times, locations and even modes of presentation.

Examples include requiring organized speech during certain times, not during finals week, and in certain areas based on the type of speech activity; limits on amplification; and scheduling systems that prevent groups from using the same area at the same time.

Taking Precautions

Even though the trend of judicial decisions is decisively to favor those who argue in favor of their speech rights, a college can nevertheless take important precautions to guard against these challenges.

They can include the following:

First, the college should review existing speech policies for compliance with free speech principles. College policies which courts have struck down for non-compliance include sexual harassment policies, internet use policies, speech codes and student codes of conduct, among others. To avoid risks, these policies should include only prohibitions that are concise, clear and narrowed to the type of conduct of concern to the college.

The college should avoid subjective phrases such as “courteous,” “vulgar,” “derogatory,” “improper,” or other terms that can confuse reasonable people about what is actually prohibited. Policies should be reviewed to determine if anyone can construe any provision as discriminating against particular viewpoints

Second, the college should be mindful of prior restraint concerns. A prior restraint exists when the exercise of protected expression is contingent upon pre-approval or licensing by government officials. Prior restraints are not unconstitutional per se, but courts will review them very carefully to see if they meet a number of stringent legal tests.

To avoid prior restraint concerns, many institutions do not require any license, permit, or pre-authorization and merely require organizations that wish to demonstrate or handbill to reserve time a number of days, or even hours, in advance.

Third, the college should ensure that the campus has sufficient areas that are available for free expression. Case law provides that a government organization cannot preclude expression of speech on government land by designating the entire area as a non-public forum, or by identifying “free speech zones” situated in a way that unreasonably deprives the speakers of meaningful access to their intended audience. The college’s specification of areas as limited or designated public forums ideally should correspond to the way students and outsiders already use those areas for free expression.

The college can identify these areas as designated or limited public forums, and other parts of the campus, such as offices and classrooms, as non-public forums.

Carefully crafted policies and procedures are the key to winning free speech challenges. The best litigation strategy is to put such policies into effect before any dispute arises.

Mary L. Dowell (mdowell@lcwlegal.com) and David A. Urban (durban@lcwlegal.com) are attorneys with Liebert Cassidy Whitmore, an education, labor and employment law firm representing California community colleges.

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