What the First Amendment Means for Campus Protests

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Protesters on college campuses often invoke the First Amendment as a refuge for their tactics. They sometimes waved signs, but also took more drastic measures, such as setting up camps, occupying buildings or chanting slogans that critics say are anti-Semitic.

Many legal scholars, as well as academic lawyers and administrators, believe that at least some of these claims about freedom of speech obscure, test, or even ignore the very amendment that is intended to prevent state repression.

Whose interpretations and principles prevail, whether in court or among administrators responsible for exercising discipline, will do much to determine whether protesters will be punished for campus unrest.

Public universities, as weapons of the government, must yield to the First Amendment and the courts’ interpretation of the decree that there shall be no law “abridging the freedom of speech” or “the right of the people peaceably to assemble ‘.

But private universities set their own standards for speech and protest.

To be fair, private universities embrace free speech more than, say, private companies. However, this policy and approach is driven by principles such as academic freedom and the marketplace of ideas, not constitutional law.

Columbia University, a hub of this round of campus protests and the scene of a massive police response Tuesday night, has not banned all speech. But its current policy includes a series of rules, such as designated protest zones and pre-registration for protests, that the university says are intended to ensure safety while promising that “all members of the university community have the right to speak, study, research, teach, and express their own opinions.”

Legal scholars have said that while the university’s approach may anger students and faculty and even restrict speech on campus, Columbia faces far fewer legal risks than any public school.

Academic administrators and courts often find comfort in frameworks, and the notion of ‘time, place and manner’ is deeply embedded in the jurisprudence on freedom of expression.

Under that doctrine, governments can sometimes regulate logistical details related to speech. The doctrine is not a blank check for state power over speech — a government must apply rules without discriminating against a viewpoint, for example — but it does allow for some restrictions in the pursuit of public safety and order.

For university leaders, the doctrine provides a kind of template for protest policies that can survive legal scrutiny and withstand political backlash.

“We have always believed that time, place and manner – when applied in a fair, open and completely neutral manner – was the best mechanism both to enable protest and to ensure that protest did not disrupt academic programming and activities,” said Nicholas B. Dirks, former chancellor of the University of California, Berkeley, which has one of the richest traditions of protest in higher education.

But, added Dr. Dirks, “that’s easier said than done.”

The Supreme Court ruled shortly after World War I on First Amendment grounds that included the phrase “clear and present danger.” About 50 years later, the court adopted an approach that focused on “imminent lawless action.”

That test is important for assessing whether, say, the First Amendment protects an anti-Semitic chant. If the rhetoric is intended to provoke “imminent lawless action” and is likely to do so, it is not considered constitutionally justifiable. But chants that fall short of that standard are protected, meaning that even some grotesquely uncomfortable, distasteful speech need not be subject to government disciplinary action.

“The tricky part is when the behavior and the speech are close,” said Timothy J. Heaphy, who was a U.S. attorney during the Obama administration and later a college counselor at the University of Virginia.

Certain threatening behavior on campuses is illegal under federal civil rights law. For example, two men pleaded guilty to using force to intimidate black students and staff at the University of Mississippi after placing a noose in 2014 around an on-campus statue of James Meredith, the first black student to enroll there. of men were sentenced to prison.

While some campus protesters view their encampments as a form of speech, courts have held that restrictions on overnight camping and the like can meet the time, place and manner test, even on public land.

For example, in a 7-2 ruling in 1984, the Supreme Court held that the National Park Service could deny a request for protesters to spend nights in “symbolic tents” near the White House under regulations prohibiting sleeping in places not classified as campgrounds.

“The ordinance prohibiting sleeping meets the requirements for a reasonable limitation of speech in time, place, or manner,” Justice Byron White wrote in his opinion.

“The scheme is neutral in terms of the message presented and leaves open sufficient alternative methods to convey the intended message about the plight of the homeless,” he added.

Mr. Heaphy predicted that a court would never consider a building occupation like this week at Columbia to be a protected activity under the First Amendment.

“Students are occupying the building,” he said. “That’s behavior. That won’t last long.”

Generally speaking, yes, but the First Amendment still applies to public universities.

Again, private universities have more discretion.

At the University of Chicago, President Paul Alivisatos noted this week that while camps violate school rules, administrators “are allowed to allow a camp to operate for a short period of time despite clear violations of policy.”

He raised that possibility by pointing to “the importance of the expressive rights of our students” and said that “the impact of a modest camp is not all that different from a conventional demonstration or march.”

But he indicated that the university would not allow its policies to be eviscerated, and he urged students involved in the encampment to “instead embrace the multitude of other tools at their disposal.”

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