Are you prepared for a highly active — even violent — period of free expression on campus? I do not want to be alarmist, but with recent events in mind (Middlebury College, the University of California at Berkeley), it’s worthwhile to consider some of the volatile forces pushing free-expression and First Amendment issues to the fore:
- The First Amendment, which is applicable on public campuses, fuels speech and expressive behavior with very broad protections for content and viewpoint. An example: In Snyder v. Phelps, the U.S. Supreme Court protected the rights of members of the Westboro Baptist Church to heckle family and friends attending a soldier’s funeral. Private institutions often provide similar protections in promises made in student handbooks and other literature and guidelines.
- What the law protects, the current political and cultural climate seems to encourage. Anyone may project almost any idea, however divisive and unwelcome. Fame seekers know that outrageous expressive conduct can draw a crowd at a college campus.
- Free speech has gone digital. Anyone with a smartphone can publish just about anything, disseminate it widely and quickly (sometimes to millions), and perpetuate it. Colleges and the media once had the upper hand in publishing, dissemination, and perpetuation of ideas — not any more. Brace for the realities of false “reporting,” and to be assailed for events that never occurred.
- Protest dynamics have changed. Violent protesters may appear at otherwise peaceful events, disrupting those events. Some may be operating as “catfish,” seeking association with groups that disavow them. Prepare to manage multiple protest events simultaneously, stretching safety resources to the breaking point.
The marketplace of ideas has (d)evolved into a sometimes bizarre bazaar of expression, testing the limits of even the most ardent supporters of free expression along with our campus resources. Here are some thoughts on how to meet today’s challenges.
Your college is a speaker, with rights. The Supreme Court’s opinion in Citizens United v. the Federal Election Commission established that your institution itself has speech rights and expressive rights related to its mission, values, and opinions. The right to speak also implies the right not to speak — do not feel compelled to grace the graceless with a response.
Protect your mission. The Supreme Court has made it clear that material disruptions of the educational mission need not be tolerated. It is easy to get carried away with “marketplace of ideas” rhetoric. A math class is a marketplace for ideas about math; a utility closet is not a theater. The Supreme Court has offered a helpful blueprint for campuses to protect their educational missions by way of “forum” analysis. The regulation of speech varies with the “forum.”
On a well-ordered campus, there will be spaces where no expressive conduct occurs, places where viewpoints can lawfully be restricted (yes, the Constitution permits you to have an office where you can limit discussion), places where content can be regulated (within boundaries), and meaningful spaces for open discourse subject only to reasonable time, place, and manner restrictions. Map your campus environment — real and digital — for free-expression purposes. Then consider forming a task force, with the help of counsel, to build your free-expression/First Amendment campus. Do this, or others will attempt to claim your forums for their purposes — perhaps in the middle of a controversy.
Know the law, respect the law, and keep lawyers close by. The Supreme Court consistently rewards those who know the rules and play by them. That court has even mocked as not passing “the laugh test” regulations that were poorly drafted. Courts often intervene in free-expression matters; expect them to do so. Courts and the court of public opinion will expect you to make good on the promises you make via student handbooks and the like.
Make reasonable space for controversial expression. Reasonable, time, place, and manner requirements are not merely restrictive but can also be helpful. Restricting areas for free speech can backfire if there is no space for open expression. Make a place for venting, or venting may occur in every place.
Be transparent and authentic in speech regulation. Expect authenticity and transparency to be vetted thoroughly. The Supreme Court rejects attempts to regulate speech through seemingly neutral regulations that in actual operation, or by design, have pernicious impacts — including the chilling impact on protected speech.
Be prepared for new types of protest dynamics. Campus law enforcement and administrators must be prepared for protesters and protests that spark up almost instantly via smartphone technology and social media. Your emergency and threat-assessment teams should be helping to manage complex, simultaneous, spontaneous, and sometimes violent protests.
Make narrative management a priority. Public narratives now develop and disseminate at warp speed. Nimble leadership requires skill at deflecting negative narratives and constructing positive ones. Versatility in real-time communication is increasingly important. A helpful tip: Have advisers who are savvy in media law on your management team.
Teach the mature and responsible use of expressive rights. We have a new generation of learners who are experiencing expressive rights and responsibilities in ways that no previous generation ever has. We can, and should, use our educational resources to teach good expressive-rights citizenship. Ironically, respect for the First Amendment, which undergirds today’s explosion of expressive activity, is possibly at an all-time low. We must teach the responsible use of modern powers of expression, or we may face a new era of censorship.
Protect your community. Do not tolerate defamation, invasion of privacy, intentional infliction of emotional distress, violence, or true threats of violence. Many forms of expression, including those, do not qualify for legal protection. It has been unusual for colleges and their leaders to play offense in litigation, but the current climate will very likely require that we do.
Presidential leadership on expressive rights and First Amendment issues is more important now than at any time in the history of American higher education. There are many disruptive forces afoot, yet the law of free expression is our powerful ally. We must learn to wield it, not just rely on it.
