Archive: First Amendment and Student Speech

Dear College Campuses: Meet the First Amendment

By Alexandra Baruch Bachman, Staff Member (Vol. 16)
October 31, 2017

The General Issue: First Amendment + College Campuses = News

If you actively follow the news, or read the CNN updates that appear on your phone, you know that there has been a nationwide shift toward stifling free speech on college campuses. Ohio, Wisconsin, and North Carolina are all discussing free speech in the context of legislation. For example, the Wisconsin “Campus Free Speech Act,” despite its chipper and enticing name, would mandate that the University of Wisconsin system punish students who interfere with others’ speech or events.

Shifting from proposed legislation to past events, there is a growing trend toward rescinding speakers’ invitations to university campuses in order to avoid potential unrest. From UC Berkeley on the west coast, to Middlebury College on the east coast, speakers have been met with student protest. Although physical protest should never be condoned, consider the opinion of William & Mary professor Barbara King, who celebrates “intellectual turbulence because it is a clear signal to necessary intellectual engagement.”

In an attempt to understand this unrest, I have identified two theories as to the underlying issue spurring this conflict on campuses across the nation. First, we could blame the adults (the administrators and faculty).  Second, we could blame the kids (the students). In my opinion, as I will explain, we should blame both.

Theory One: Administrators and Faculty Bear the Blame

Confronted with the aforementioned tension, Congress invited five witnesses, including podcast personality Adam Carolla, to address the subcommittees on intergovernmental affairs, and on health care, benefits and administration, respectively, regarding challenges to freedom of speech on college campuses.

Carolla previously explained campus censorship “like a fart in an elevator – everyone smells it but no one will own it.. . . We must understand that we have the right to free expression, not the right to not be offended,” Carolla concluded, after identifying the many ways in which censorship disadvantages students during their time on campus and beyond.

Addressing Congress (the full hearing can be viewed here,) Carolla highlighted his time touring college campuses fifteen years ago, with “nary a word of negativity.” Fast-forward to a recent speaking engagement (with a conservative co-speaker) at a California university where the event was cancelled without justification. Never one to back down, Carolla (with the help of attorneys) fought, and ultimately won the opportunity, to address that campus at a later date.  As Carolla told Congress, for college students to learn to be adults, they must be treated as adults. Kids today are kept in a bubble, safe from the world, with the thought or hope that they will emerge stronger. This strategy, he concluded, just isn’t working.


Theory Two: Students are Misunderstanding the Constitution

Just because administrator failings have been thrust into the spotlight does not mean those are the only First Amendment issues worthy of national attention.

Regarding student understanding, a recently published survey of 1,500 undergraduate students, identifies many student misunderstandings of the First Amendment.  For example, when asked if violence is an acceptable means of preventing a speaker from speaking, 19 percent of students answered that violence is indeed acceptable. While this is by no means a majority, nor is it insinuating that a tidal wave of violence is imminent, 19 percent is significant.

My Theory: It’s Both.

The First Amendment is in the news today because of legislators’ and university administrators’ actions.  But when attention is focused exclusively on this trending topic, other issues fade into the background, despite potentially dangerous ramifications.  Reeducating the administrators is important, but so is educating the students.  Left unaddressed, we risk a future governed by a generation where nearly one-in-five believe violence is an appropriate means of stifling someone with whom they disagree. One would hope that this hypothetical future is something people on both sides of the political aisle would prefer to avoid.

In my mind, to say that the administrators are creating problems to the detriment of students is potentially worsening the issue.  If the only way for students to learn and mature as adults is to treat them like adults, then they too ought to be a part of this conversation.  For “adults” to try and deal with this issue behind closed doors, excluding students as merely the injured party is hindering progress even further.

Based on the aforementioned survey, nearly one in five undergraduate students grossly misunderstands (or is attempting to aggressively manipulate) the First Amendment.  Based on the aforementioned state and university policies, administrators and legislators grossly misunderstand the same.  I know that as a law student, I’m being trained to spot issues, but I don’t think it takes an advanced degree to recognize that there is a problem here.

I see this conflict as an ill-fated boxing match: in the red corner, we have the current generation of American leaders who don’t understand the First Amendment; and in the blue corner, we have the next generation of American leaders who don’t understand the First Amendment. As the news has made clear, the two are bouncing around the ring and beating each other senseless with no end in sight.

 How do we bring this brawl to an end? The ACLU takes the position that “instead of symbolic gestures to silence ugly viewpoints, colleges and universities have to step up their efforts” by encouraging diversity among both students and staff, advocating resources, and increasing “awareness about bigotry and its history.” Rather than just restating the problem, this recommendation encourages actual change. This strategy is easier said than done, to be sure, but with reasonable communication it seems achievable.

NC’s Campus Free Speech Act Disappoints Speakers by Furthering the Status Quo

By Lindsie Trego, Symposium Editor (Vol. 16)
July 12, 2017

The North Carolina legislature passed the Campus Free Speech Act last week, and the bill is now awaiting the governor’s approval. The Act is loosely based on a model bill made by the Goldwater Institute, a Libertarian think tank, and it follows similar bills passed by Colorado, Utah, Virginia, and Tennessee this year.

The trend of Campus Free Speech bills has captured lawmakers’ attention–especially the attention of Republicans– in the wake of sometimes violent campus protests such as those that occurred at Mizzou in 2016 and at Berkeley in February of this year, and also following what advocacy organizations have called a crisis of “disinvitations” of speakers. The Goldwater model bill seeks to address these concerns by (1) requiring campuses to implement policies that affirm the importance of free speech, including striking former speech-restrictive policies; (2) prohibiting disinvitation of speakers; (3) declaring outdoor areas of campus to be public forums, in which free speech enjoys the greatest protection; (4) creating a scheme of disciplinary sanctions for those who “interfere” with others’ free speech rights; (5) requiring free speech policies to be introduced to students at freshman orientation; and (6) establishing a committee to study threats to free speech on campus.

The North Carolina bill does only some of these things: It requires implementation of speech-friendly policies, prohibits disinvitations, asks campuses to create a range of disciplinary sanctions for interfering with the speech rights of others, requires free speech policies to be introduced at orientation, and creates a committee to study threats to free speech on campus.

However, North Carolina’s bill diverges from the Goldwater bill–and from many other states’ laws–in a couple of important ways. Most importantly, the North Carolina bill does not set aside any part of campus as a public or student forum. This is one of the most important things that other states’ bills have done, as creating public forums means ending the widespread problem of “speech zones” by requiring that individuals’ speech rights in those areas be subject only to reasonable and content-neutral time, place, and manner restrictions. Remember when a Michigan community college student dressed up as a T-rex to pass out constitutions on campus and was told by campus police that he was not permitted to continue without administrative approval? This type of provision would likely prevent a similar scenario.

Instead of a provision declaring certain areas to be public forums, North Carolina’s bill states, “Access to campus for purposes of free speech and expression shall be consistent with First Amendment jurisprudence regarding traditional public forums, designated public forums, and nonpublic forums, subject to reasonable time, place, and manner restrictions.” In other words, it does nothing but maintain the status quo in regard to which parts of campuses administrators interpret to be public, designated, and nonpublic forums.

Second, North Carolina’s bill diverges from others in its instruction regarding discipline of those who interfere with the free speech rights of others. The Goldwater bill says, “The policy shall include a range of disciplinary sanctions for anyone under the jurisdiction of the institution who interferes with the free expression of others,” and “Any student who has twice been found responsible for infringing the expressive rights of others will be suspended for a minimum of one year, or expelled.” North Carolina’s bill, on the other hand: “The constituent institution shall implement a range of disciplinary sanctions for anyone under the jurisdiction of a constituent institution who substantially disrupts the functioning of the constituent institution or substantially interferes with the protected free expression rights of others, including protests and demonstrations that infringe upon the rights of others to engage in and listen to expressive activity when the expressive activity has been scheduled pursuant to this policy or is located in a nonpublic forum.”

There are a few differences to note in this section. First, North Carolina’s bill does not require one year suspensions or expulsions for those found responsible for interfering with others’ free speech rights twice, as the Goldwater model does. Second, North Carolina’s bill uses the phrase “substantially interferes” instead of simply “interferes.” Some First Amendment advocates have been concerned that “interferes,” is vague and may be applied in an overbroad manner to discipline those who participate in counter-speech. “Substantially interferes” may resolve some of that concern, although it may be similarly vague and could still be applied in an overbroad manner. Third, North Carolina’s bill specifically mentions protests and demonstrations as vehicles for “substantially interfer[ing]” with others’ expression rights, meaning that the legislature has specifically envisioned students being disciplined for such speech activity. This bolsters the concerns of speech advocates that this bill could be used to discipline counter-speakers.

Also of concern to civil liberties advocates is the wide latitude the bill gives to the Board of Governors in granting the Board power to “adopt additional policies and guidelines to further the purposes of the policies adopted pursuant to this Article,” and in creating a committee of the Board responsible for studying and reporting “barriers . . . to free expression.” Given the Board’s arguably poor track record with protecting the academic freedom and freedom of expression of more progressive-leaning individuals, it will be interesting to track how this bill will apply to speakers of various viewpoints.

It remains to be seen how campuses statewide will respond to the bill’s passing, but the continuation of the status quo for determinations of what constitutes a “public forum” may mean that the administration won’t have a steep hill to climb in terms of implementation.

How do you think this will impact student speech on campuses? Visiting speakers? Counter-speech? Comment below or reach out on Twitter or Facebook to share your thoughts.

The Teacher Followed Me Home: Bell and a School’s Control of Student Speech Outside the Classroom

By Kristin Vinal, Note Editor (Vol. 16)
April 7, 2017

Where does a student’s speech stop being under control of their school? Could it be when they are 500 feet away from school property? Or when they are home? In 2015, the Fifth Circuit Court of Appeals ruled in Bell v. Itawamba County School Board that speech outside of school grounds and in a student’s home is still subject to school regulation.Under the First Amendment of the U.S. Constitution: “Congress shall make no law . . . abridging the freedom of speech . . .” The Supreme Court has held that while student’s do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” there are some exceptions to this rule—including threatening language. The issue discussed here is when speech is off campus, are individuals seen as private citizens (therefore awarded broader free speech rights) or are they still students (and therefore under the school’s control).

According to the Court in Bell, they are still considered students, therefore their language could be monitored. This creates a very broad landscape in which schools can monitor speech, thus infringing on student’s free speech rights.

Facts of the Case: It All Started with a Rap

 When Taylor Bell heard rumors that a coach at his school was involved in inappropriate relationship with fellow students at his high school, Mr. Bell reacted in a creative way (like many artists before him)—through music. He recorded a rap he wrote about the situation, and posted it to Facebook and YouTube. Mr. Bell recorded the rap “[a]way from school or a school function and without using school resources,” thus making his speech “off-campus speech.”

When the rap was brought to the attention of Itawamba School officials, Mr. Bell was removed from class and suspended “pending a disciplinary-committee hearing.” The school considered Mr. Bell’s rap to be threatening language against the coaches he referenced in the work. After the hearing, Mr. Bell was informed that not only that his week-long suspension be upheld, but also “that he be placed in the county’s alternative school for the remainder of the nine-week grading period (approximately six weeks).” This suspension was appealed, subsequently upheld, and resulted in the filing of an action in the Fifth Circuit Court of Appeals.

The Court’s Ruling: Casting the School Control Net Farther

 Mr. Bell wrote this rap with the intention of reaching his classmates. He wanted to expose the situation between the coach and students, while also showing his disgust at the situation. The school found his rap to contain “at least four instances of threatening, harassing, and intimidating language against the two coaches.” Bell contested that the school could not monitor this speech because it was not written or recorded on school property—it was off-campus speech.

In an effort to balance the free speech rights of students and the authority of school officials, the Court in Tinker v. Des Moines Independent Community School District ruled that student’s constitutional right to free speech may be infringed upon in light of “facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities.” Tinker cautioned that student’s do not automatically forfeit their First Amendment rights to free speech just by their status as students. Rather, if their speech affected the classroom activities or school environment, then it may be limited as that is a “substantial disruption” to school activities.

Applying the Tinker test, the Fifth Circuit ruled that the school’s monitoring of Mr. Bell’s rap was not a violation of his constitutional rights. Mr. Bell’s intention for students to see his message and knowledge that it would be spread around the school, combined with the perceived threatening undertones (whether they were true threats or not had no bearing on the ruling), was found to be a substantial disruption to the school.

The Fifth Circuit extended the ruling in Tinker outside of the classroom, into the student’s home. Student language that was once thought to be private, was now able to be monitored and infringed when school officials claim a “substantial disruption.”

Conclusion: The Teacher Followed Me Home

In a world fueled by social media, student speech can reach a wide audience faster than ever before. In an effort to control that speech and protect their employees, schools need to be able to cast a wide net of control. Bell allows student speech to be monitored, even when off campus, by using the “substantial disruption” standard from Tinker. This allows school officials to protect their employees and the school environment. At the same time, students need to be aware that regulation of their speech does not end when they leave the classroom—they can be held accountable for their words outside that space as well.

Students can be easily monitored on social media platforms and need to be careful even in their creative speech. Words they thought were private expressions of their feelings, can easily be shared throughout the student body and school hallways. Words they used to show their view on a situation can be arbitrarily deemed a “substantial disruption” to school activities and land them in hot water. This decision can lead the school to taking official action against them, without fear of infringing on their First Amendment right to free speech. The lack of strong definition for what is a “substantial disruption” opens the door to student’s being held accountable for almost anything.

School officials’ control of a student’s language no longer ends when the bell rings—the teacher can follow you home.

The Future of Cyberbullying Legislation in North Carolina

By Hanna Fox, Staff Member (Vol. 15)
April 7, 2017

Young people have an unprecedented access to technology, which grants them abundant access to the world around them, as well as to one another constantly.  Technology’s increased prevalence is relevant in children’s education, entertainment, and social interactions. Though children experience many benefits from the increased use of technology, that same surge has created a new monster: cyberbullying.

The Cyberbullying Research Center defined cyberbullying as the “[w]illful and repeated harm inflicted through the use of cellphones, computers, or electronic devices.” Technology has transformed the role of the school-house bully in three ways. First, computers and phones allow a bully to access a victim outside of the school-house doors. Second, technology provides an infinitely wider audience than traditional bullying, and its effects can be devastating to children. Finally, cyberbullying can frequently be done anonymously, often times emboldening bullies to be especially cruel, and diminishing the possibility of punishment.

It is no surprise that the effects of this behavior can be devastating for adolescents. Approximately one third of middle and high school students report to have been victims of cyberbullying at some point in their lives.  Many children resort to skipping school in an attempt to avoid the consequences of being targeted online by other students, and tragically some victims of cyberbullying have resorted to suicide.

Parents and school boards have turned to legislatures to remedy this pervasive issue, but the First Amendment freedom of speech provides serious hurdles to effective legislation. Legislators must ensure that in defining and addressing cyberbullying, they are choosing language and methods that are the least restrictive of the First Amendment rights held by the potential offenders. Furthermore, there are serious concerns as to whether the legislature is the appropriate authority.   

State v. Bishop

Many of the First Amendment concerns were discussed in a 2016 North Carolina Supreme Court decision, State v. Bishop. In Bishop, an anti-cyberbullying statute was struck down as a content based restriction of speech which did not satisfy strict scrutiny.

A student at Southern Alamance High School posted negative pictures and comments on another student’s Facebook page, and was convicted under N.C. Gen Stat § 14-458.1, which prohibited posting “with the intent to intimidate or torment a minor, post or encourage other to post on the Internet private, personal, or sexual information pertaining to a minor.” That student subsequently challenged the constitutionality of the law on First Amendment grounds.

The North Carolina Supreme Court ultimately agreed that the statute infringed on the student’s right to free speech. In doing so, the Court emphasized that the statute could conceivably be applied to a wide variety of otherwise protected speech. Additionally, the Court expressed concern that the statute did not require that any harm result from the speech, or that the victim of comments that qualified as cyberbullying ever even be made aware that such comments existed

Though the North Carolina legislature may find more success in creating legislation that remedies the North Carolina Supreme Court’s concerns, North Carolina is one of many states that have experienced the tension between cyberbullying laws and the First Amendment. These statutes rarely survive First Amendment scrutiny when challenged. 

The Remedy

Moving forward, states like North Carolina face the seemingly impossible task of crafting legislation within a First Amendment minefield. The legislature would have to define the conduct in such a way that both identifies the behavior to be prohibited and protects otherwise permissible speech.  Additionally, they cannot create a content based restriction on speech, and must articulate grounds for schools to extend their authority over conduct that is taking place outside of school.

Some states have been successful in focusing on the harm caused by the conduct, rather than the content of the speech itself, but it remains unclear if that shift in focus will be enough to make these statutes pass constitutional muster. States have found success in choosing statutes that instead mandate that schools create cyberbullying prevention and response programs.

Alternatively, the remedy to the issue may very well fall outside of the legislature. Many studies reveal that the criminalization of “child like behavior” tends to produce more harm than good. Subjecting the bully to criminal sanctions does little to address his motives for bullying, nor does it provide any real recovery for his victim. Additionally, there is no statistical evidence that criminal sanctions deter bullying.

Many scholars instead advocate for a remediation approach to cyberbullying, thus ridding the legislature of the burden of utilizing the power of the state to chip away at First Amendment rights of students. The invalidation of N.C. Gen Stat § 14-458.1 provides North Carolina with a unique opportunity to reconsider the most effective method of addressing cyberbullying, and the best answer may be to move away from criminal sanctions all together.