Free Speech on College Campuses: Considerations for Congress
Legal Sidebari
Free Speech on College Campuses:
Considerations for Congress
April 2, 2020
The extent to which colleges and universities are regulating free expression on their campuses has been an
issue of legal debate in recent years, with some contending that a large percentage of colleges and
universities continue to implement policies that unlawfully restrict protected expression. The executive
branch has increasingly expressed concern with the issue, as well. For instance, last year President Trump
signed an executive order seeking to protect “free speech on college campuses” by instructing federal
agencies to “ensure” that institutions that receive federal research funds comply with existing federal laws
and regulations to promote “free inquiry.” In response to his order, this January the Department of
Education proposed new regulations specifically addressing campus speech. Additionally, the Department
of Justice has filed Statements of Interest supporting free speech claims raised in several cases concerning
the constitutionality of campus speech policies.
The administration’s actions are not without their critics, however, with some suggesting that additional
government action protecting campus speech is legally unnecessary. Others point out that colleges need
flexibility to develop policies to ensure campuses promote equality and are free from discrimination and
harassment. This Sidebar explores the legal questions behind the ongoing debate over free speech on
campus by highlighting background principles, discussing key case law, and addressing Congress’s role,
particularly as it considers legislation to reauthorize the Higher Education Act of 1965 (HEA).
Campus Speech Jurisprudence
The Free Speech Clause of the First Amendment as interpreted by the Supreme Court prohibits both the
federal and (through the Fourteenth Amendment) state governments from “abridging the freedom of
speech. . . .” As state institutions, public colleges and universities are generally subject to the First
Amendment and may not infringe students’ rights of free speech. Private institutions of higher education,
however, are not required to provide the same speech protections as public institutions because only state
actors are bound by the First Amendment.
In regard to public colleges and universities, the Supreme Court has broadly emphasized the importance
of free speech on campus, considering it necessary to encourage a “marketplace of ideas” and to
“safeguard[] academic freedom.” The Court has recognized that a university most resembles a “public
forum,” meaning that places like the university’s campus are open, at least to students, for expressive
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activity. In public forums, a school’s ability to restrict speech is significantly limited. For example,
content-based (i.e., subject matter) restrictions on speech are generally unconstitutional unless they satisfy
strict scrutiny. Strict scrutiny, which is a heightened judicial standard of review, requires the government
to show the restriction is necessary to serve a compelling state interest and is narrowly drawn to achieve
that interest.
There are instances, however, when the government may regulate campus speech. The Supreme Court has
recognized that because of the “special characteristics of the school environment” a college or university
may impose certain regulations on speech that are “reasonable” in light of the school’s educational
mission. According to the Court, a school is not required to make its facilities, such as its classrooms,
equally available to students and nonstudents and does not have to grant free access to its facilities.
However, a school may reasonably regulate speech in a nonpublic forum (or forums that have not
traditionally been designed for or intentionally opened up for public speech), so long as the regulation is
viewpoint neutral.
The government may also impose “reasonable” time, place, or manner restrictions in both public and
nonpublic forums. These restrictions on when, where, and how speech is exercised are subject to
intermediate scrutiny, a more forgiving standard than strict scrutiny. Under that standard, regulations must
be “narrowly tailored to serve a significant government interest” and leave open “ample alternative
channels for communication of the information.” The government also may regulate so-called
unprotected speech. The Supreme Court has recognized several well-defined, narrow, and limited
categories of speech that may be regulated based on their content. These categories of speech include, for
example, obscenity, incitement, fighting words, and types of illegal speech, such as defamation, threats,
and child pornography. It is important to note, however, that “hate speech,” or speech that demeans a
person because of a defining characteristic such as race or religion, is generally protected under the First
Amendment unless it otherwise falls under one of the categories of unprotected speech. Although the
categories above are generally considered unprotected, they are not “invisible” to the First Amendment,
which still places some limits on how Congress can regulate in these areas. Laws that restrict speech
based on the “particular views taken by speakers on a subject,” may be considered unconstitutional
viewpoint-based restrictions even if they are aimed at an unprotected category of speech.
The First Amendment also prohibits overbroad or vague regulations, which may have the effect of
banning protected speech. A policy is overbroad if it permissibly regulates some speech, but also
substantially restricts protected speech. The government, therefore, may only regulate unprotected speech
by enacting policies that are sufficiently narrow and targeted towards the prohibited speech or conduct.
On the other hand, a policy is unconstitutionally vague when it is unclear what conduct is prohibited.
Overbroad or vague laws may “chill” protected speech, meaning people, out of caution, may choose not
to speak because of a law’s scope or lack of clarity. In addition, a vague law may allow the government
room to arbitrarily enforce the policy, targeting disfavored speech. To avoid vagueness, policies must
instead give clear warning as to what conduct is prohibited.
Specific Campus Speech Issues
Applying these principles, courts have issued a number of opinions in recent years with respect to several
campus initiatives intended to combat sexual harassment or discrimination or promote campus safety.
Discrimination & Harassment Policies
Over the years, courts have faced questions regarding the power of a college or university to discipline its
students for speech that may constitute harassment under a given educational institution’s policies.
Federal laws such as Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments
of 1972 generally require colleges and universities receiving federal funds to prohibit discrimination and
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sexual harassment. The Supreme Court has held that requiring schools to implement anti-discrimination
policies generally does not violate the First Amendment. Several courts, however, have found some
campus harassment policies unconstitutional because they prohibit speech that is fully protected by the
First Amendment.
For example, in 1989 in Doe v. University of Michigan, a federal district court held that the University of
Michigan’s discriminatory harassment policy that prohibited behavior that “stigmatizes or victimizes an
individual on the basis of race, ethnicity, religion, sex . . . .” was unconstitutionally overbroad and vague.
The court determined that the policy punished protected speech because the terms “stigmatize” and
“victimize” were not precisely defined. Similarly, in 1993 in Dambrot v. Central Michigan University, the
Sixth Circuit held that the university’s discriminatory harassment policy which proscribed “any . . .
behavior that subjects an individual to an intimidating, hostile or offensive . . . environment by . . .using
symbols, epitaphs or slogans that infer negative connotations about an individual’s racial or ethnic
affiliation,” was unconstitutionally overbroad and vague. According to the court, the terms “negative” and
“offensive” in the policy were too subjective because “different people find different things offensive.”
Courts have also invalidated campus sexual harassment policies on overbreadth or vagueness grounds.
For instance, in 2008 in DeJohn v. Temple University, a student challenged the university’s sexual
harassment policy, which prohibited all forms of sexual harassment “including . . . expressive, visual, or
physical conduct of a sexual or gender-motivated nature, when . . . such conduct has the purpose or effect
of creating an intimidating, hostile, or offensive environment.” The Third Circuit determined that, among
other reasons, terms such as “offensive,” “hostile,” and “gender-motivated” rendered the policy overbroad
and too subjective in that it could proscribe, for example, protected political or religious speech.
Recently, in Speech First v. Schlissel, the Sixth Circuit reviewed a challenge to the University of
Michigan’s Bias Response Team initiative, which was created to support students who experienced “bias
incidents,” or incidents involving discriminatory conduct, on campus. Because the Bias Response team
had the power to refer cases to the police or the Office of Student Conflict Resolution (OSCR), which
could sanction students for violations of campus policy, the plaintiff argued that the initiative could lead
to the chilling of protected speech. On appeal on a procedural issue, the Sixth Circuit did not offer a
definitive opinion as to whether the Bias Response Team initiative was unconstitutional, but did mention
that the Response Team’s ability to make referrals to the OSCR or the police could have the effect of
chilling speech. The parties eventually reached a settlement in which the University agreed to disband the
Bias Response Teams.
Campus Safety
Since 2017, several incidents involving high profile, controversial speakers on college campuses have
made headlines. These incidents have prompted university administrators to implement proactive security
measures regarding on-campus speakers, many of which have been challenged under the First
Amendment. For example, after protests and counter-protests in response to white nationalist Richard
Spencer’s “Unite the Right” rally in Charlottesville, Virginia turned violent, several universities declined
Spencer’s requests to hold on-campus events or cancelled previously scheduled events citing security
concerns. But one federal court found that absent evidence that Spencer’s speech would incite violence
(i.e., be unprotected speech), a university’s refusal to host Spencer amounted to content-based
discrimination in a public forum.
A university’s decision to move a speaker to a different campus venue may also raise First Amendment
issues. For example, in 2017 the University of California, Berkley cancelled a speech by Milo
Yiannopoulos after protests turned violent. Berkley officials then instituted a policy for major events,
placing time and place restrictions on “high profile” speakers. A federal court determined that some of
Berkley’s policies may have been unconstitutional before Berkley settled the lawsuit. More recently,
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various conservative groups sued the University of Minnesota after the university moved commentator
Ben Shapiro’s speech to a smaller, more inconveniently located venue. A federal court held that the
university’s actions may have amounted to unconstitutional viewpoint discrimination.
And attempts by colleges and universities to confine speech to designated areas on campus have been
successfully challenged as unconstitutional under the First Amendment. According to some reports,
several college campuses still enforce “free speech zone” policies, or policies that limit where expressive
activities or demonstrations can occur on campus. Free speech zone policies are often challenged as
unreasonable time, place, or manner restrictions. In a 2017 case, Shaw v. Burke, a student challenged Los
Angeles Pierce College’s “Free Speech Areas” policy, which limited expressive activity to an area that
amounted to approximately .003% of the total area of the campus. The district court agreed that the policy
raised constitutional concerns, noting that while the college had an interest in avoiding disruption on
campus, there was no justification for reserving such a small percentage of the campus for free speech.
Considerations for Congress
These recent cases exist in the context of a broader debate about whether both public and private
universities are sufficiently allowing freedom of speech on campus. While Congress has already
expressed its general support for campus speech through a sense of Congress provision in the HEA,
Congress could—to the extent it agrees with the critics of the current free speech policies in post-
secondary schools—take further legislative action on the issue.
Thus far, individual states have been at the center of legislating on campus speech issues. For example, at
least 17 states have passed legislation banning free speech zones on campuses by, for example, deeming
common outdoor areas on campuses as traditional public forums and permitting any person to engage in
expressive activities in those areas so long as the person is not disruptive or breaking the law. Federalism
principles may limit the extent to which Congress can act to impose direct commands on state
governments to similarly change campus free speech regulations. Congress, however, may have more
flexibility in using its spending powers to encourage free speech on campus by imposing restrictions on
funds granted to colleges and universities. Importantly, because HEA funds extend to both public and
private institutions of higher education, conditions on HEA funds related to campus speech policies could
be a means to impose broader speech protections than those required by the First Amendment.
Members of Congress have, in the recent past, attempted to expressly condition HEA funds on
compliance with speech-related mandates. The PROSPER Act, for example, which was introduced as an
HEA reauthorization measure in the 115th Congress, would have conditioned the receipt of HEA funds on
colleges disclosing campus speech policies and would have provided a federal complaint process should a
college fail to disclose or attempt to enforce an undisclosed speech policy. And in the 116th Congress, the
Free Right to Expression in Education Act would condition funds under Title IV of the HEA on public
colleges and universities allowing expressive activities in outdoor areas on campus.
Even without express legislative action on this issue, the Department of Education has recently
proposed regulations that include campus speech-related provisions, citing the sense of Congress
expressed in the HEA as justification for these proposed regulations. The proposed regulations
would require public institutions of higher education to abide by the First Amendment as a
material condition of accepting a Department of Education grant. A private institution would also
be required to comply with any of its existing speech-related policies as a material condition of
accepting a grant.
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Author Information
Whitney K. Novak
Legislative Attorney
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