Freedom of Speech: At What Cost?

The following excerpt was taken from "Freedom of Speech: At What Cost?" published in the Spring 2018 edition of Leadership Exchange magazine. 

Campus protests supporting or opposing a wide range of social issues have long been a part of the fabric of higher education. At both public and private colleges and universities, students, faculty, and citizens beyond campus communities use higher education institutions—recognized as marketplaces of ideas—to voice opinions on countless issues through a variety of venues. Higher education professionals, particularly vice presidents for student affairs (VPSAs), understand that these opinions may or may not align with personal or institutional positions or values—but the optics can be confusing, and the costs are high and rising.

What costs must we consider as the debate around free speech evolves? The following top-of-mind issues are among the most significant concerns for many VPSAs and other higher education administrators:

  • Public colleges and universities, and many private institutions, must first consider the legal cost. Public institutions are bound by the First Amendment to allow—and even support—all protected speech. Protected speech is broad, and concepts such as hate speech, speech zones, and harassment complicate community members’ understanding of why offensive speech is allowed on campuses.
  • Due to legal obligations, it is now popular to "use" college campuses as the venues of choice for controversial speakers. This choice has direct financial implications in terms of security for the speaker, space rental, crowd control, and other considerations.
  • Another cost, arguably the most concerning, is the impact on campus climate and student success. Students, especially those in underrepresented communities, are finding campuses "taken over" by external speakers and agendas.
Legal Commitments

When the topic of free speech comes up in meetings, legal issues immediately come to mind, and all eyes move toward the counsel in the room. Given the current mood of the country, most higher education leaders have a handle on content neutrality and defining public versus limited forums for speech. VPSAs, among other administrators, understand their responsibility to uphold free speech rights, but they are also aware that an institution and its leaders can express values, such as a condemnation of hateful speech. Questions pertaining to speech zones, as well as rising counterarguments related to institutional support for the First Amendment, merit further exploration.

Speech zones. Some campuses have come under fire for the continued practice of strict "free speech zones." Understandably, there is a business reason to limit where subject experts, celebrities, preachers, or other prognosticators can proclaim their beliefs. However, if a faculty member is trying to teach and cannot be heard over the words of an activist outside campus buildings, the activities clearly interfere with the operations of the academy. On the opposite side of the argument, strictly or unreasonably limiting where such speech can occur can be perceived as limiting speech.

Over time the courts have offered mixed messages related to what constitutes public forums on college campuses. In Roberts v. Haragan (2004), a case involving Texas Tech University, a federal district court clearly determined that public institutions should not treat open campus areas as nonpublic, at least as the treatment applies to students. The court determined that "to the extent the campus has park areas, sidewalks, streets, or other similar common areas, these areas are public forums, at least for the University’s students, irrespective of whether the University has so designated them or not." Multiple courts have not responded favorably to speech zones for students and have viewed accompanying policies as overly restrictive of student speech and expression. At least eight states (Arizona, Colorado, Kentucky, Missouri, North Carolina, Tennessee, Virginia, and Utah) have adopted laws that limit speech zones on college campuses, and these efforts ultimately may eliminate speech zones at public colleges and universities in the United States.

To this end, VPSAs and other student affairs professionals should revisit campus policies to ensure free speech rights are reasonably supported alongside the operational needs and educational aims of the college or university. It is important to remember that time, place, and manner can be utilized to manage speech events. Given the rise of external facilitation of events that may attract more aggressive (and sometimes violent) constituents, conduct codes and campus policies should be reviewed and, if necessary, be modified to reduce or eliminate risks. For instance, it is important to consider how fire, masks, weapons, and other protest accoutrements will be handled. It is also important to fully audit campus event registration processes for consistency with current policies along with policies related to treatment of on-campus groups and those external to institutions. Lastly, be sure the campus community is aware of how speech zones are defined on your campus.

Support of the First Amendment. A recent campus trend is the clear "pushback" related to institutional support of the First Amendment. On one hand, many critics argue that campuses are not doing enough to present all viewpoints and perspectives. In fact, there is growing support for the idea that colleges and universities should fully acquiesce their institutional values and remain value-neutral on any controversial speaker’s position. Additionally, there is momentum to institutionally codify sanctions for students whose behavior limits another’s speech, including when such students are also exercising free speech rights. The Goldwater Institute is one advocacy group that is actively promoting model legislation in states to achieve these outcomes and ultimately undermine institutional autonomy and leadership.

An additional pushback is beginning within campus communities. Increasingly, students and others are unwilling to accept an institution’s decision to uphold First Amendment rights because they fundamentally believe that some speech is not worthy of protection. In these situations, VPSAs and higher education leaders who support free speech can be viewed as contributing to a system of white supremacy and oppression. This pushback is particularly disturbing for VPSAs and other student affairs professionals who work tirelessly to enhance social justice on campus but are also bound by legal obligations. This trend will challenge the student affairs profession at its very core and has the potential to disrupt relationships with students. The answers to this challenge are not clear, but they require creative solutions that are values-driven and educationally focused. This challenge may inspire campus colleagues to reflect seriously about strong institutional commitments to free speech in the context of other compelling obligations and values related to equity and social justice.

Read the full article here.