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I. The freedom to disseminate information and ideas is a "special concern
of the First Amendment" and therefore, the First Amendment is interpreted
to give extra special protection to speech on campuses because they are
concerned with the dissemination of information and the analysis of ideas.
The unique treatment by the courts of the rights of private colleges and
universities was first evidenced in the Dartmouth College case of
1819.
II. The special nature of universities protects professors from being questions about their lectures.
Sweezy v. New Hampshire (1957) the Court was faced with the question of whether the Attorney General of New Hampshire could prosecute an individual for refusal to answer questions about a lecture delivered at the state university concerning the Progressive Party of the United States. In holding for the teacher, the Court stressed the "essentiality of freedom in the community of American universities," and warned against "imposing any strait jacket upon the intellectual leaders in our colleges and universities."
III. Faculty cannot be made to sign loyalty oaths as a condition of employment.
Keyishian v. Board of Regents of the University of the State of New York (1967) involved faculty members whose jobs were endangered when they refused to sign loyalty certificates and sought relief from the Supreme Court. The Court held the New York scheme unconstitutionally vague, applying heightened scrutiny in light of the important First Amendment interest at stake.
IV. As long as they abide by Fourteenth Amendment guarantees, universities are free to create unique environments.
The Bakke decision reaffirmed certain freedoms given to universities in the Sweezy ruling. Justice Frankfurter speaking for the Court had listed the "four essential freedoms" of a university: "to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study."
But professional schools were exempted, the University was forced to admit Alan Bakke to Medical School.
V. Student speech is also protected by the First Amendment.
In 1943 in West Virginia State Board of Education V. Barnette, Justice Robert Jackson wrote that student freedoms must be protected "if we are not to strangle the free mind at its source. . . ." Twenty-six years later the Court took up Tinker v. Des Moines, a landmark decision on the First Amendment rights of students.
VI. Universities have the right to censor materials that are instructionally related or carry the imprimatur of the university.
On January 13, 1988 in Hazelwood School District v. Kuhlmeir, Justice Byron White, writing for the majority, said that educators possess censorship authority "over school sponsored publications, theatrical productions, and other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school."
VII. Open forums may not be closed to groups based on the CONTENT of their speech unless the speech can be shown to be obscene, libelous, slanderous and/or presenting a clear and present danger to those in attendance.
In Widmar v. Vincent (1981), the Court ruled that campuses could not deny campus facilities to a group of Christian students if other groups were allowed to use them; the Christian Group was given equal status with other political groups that met on the campus.
In 1990, this privilege was extended to student groups in Board of Education of Westside Community School v. Mergens. This decision was a direct outcome of the Equal Access Act which requires schools that receive federal funds to avoid discriminating against any student initiated clubs on the basis of religious or political of their messages.
Two important items need to be noted about this line of cases. First, the Supreme Court tends rely on what is known as the Lemon test, based on Lemon v. Kurtzman (1971). A government policy can withstand constitutional scrutiny if it has a "secular purpose," does not "advance or inhibit religion" and does not foster "an excessive entanglement" between church and state.
In the second instance, Justice White in Lamb's Chapel v. Center Moriches School District (1993) said, "The government violates the First Amendment when it denies access to a speaker solely to suppress the point of view he espouses."
VIII. Sexual harassment has been specifically defined by the Federal government, but when tested against First Amendment standards in campus cases, codes have not been upheld.
On November 10, 1980, the Federal Equal Employment Opportunity Commission established guidelines for what constitutes sexual harassment based on sec. 703 of TITLE VII. Unwelcome sexual advances, requests for sexual favors and verbal or physical conduct of sexual nature constitute sexual harassment when submission to such is made either explicitly or implicitly a term or condition of an individual's employment, when submission to or rejection of such conduct by an individual is used as the basis for employment decisions, or when such conduct has the purpose or effect of unreasonably interfering with an individual's work performance.
Subprinciple A.
Language used in speech codes may not be so broad as to allow administrators
to apply rules in an arbitrary or capricious manner.
See Doe v. University of Michigan. In 1989 a federal district court held that the University's "Policy on Discrimination and Discriminatory Harassment of Students in the University Environment" was unconstitutional because it was too vague and overbroad.
Subprinciple B.
Libel, slander and "fighting words" have very narrow definitions
according to the Supreme Court. In Hess v. Indiana (1973), Gregory
Hess was brought to trial for encouraging anti-war demonstrators to escalate
their activities. At one point, he yelled, "We'll take the f--king
street later." The Supreme Court overturned Hess' conviction on the
grounds that his speech was protected because it was not "obscene,"
did not constitute "fighting words," and was unlikely to produce
imminent lawless action.
Terminiello v. The City of Chicago (1948) over turned a conviction because the sitting judge had instructed the jury that all the prosecution needed to prove was that the speech in question "stirs the public to anger, invites disputes, brings about a condition of unrest, or creates a disturbance."
De Jonge v. Oregon (1937), "Peaceable assembly for lawful discussion cannot be made a crime."
Subprinciple C.
Universities must prove that the codes will result in a change of atmosphere
and belief.
R.A.V. v. City of St. Paul (1992), in which the Supreme Court struck down a city ordinance that made it a misdemeanor to place "on public or private property a symbol, object, appellation, characterization or graffiti, including but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know, arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender . . ." This decision makes it almost impossible for campus to write speech codes.
Subprinciple D.
Attempts to expand such obscenity rulings as Miller v. California to
sexual harassment have so far failed.
In American Booksellers Assoc. v. Hudnut (1985) and Hudnut v. American Booksellers Assoc. (1986), the Court ruled that "more speech, not enforced silence" is the key to combatting offensive slurs.
However, in Meritor Savings v. Vinson (1986), the Supreme Court unanimously ruled that illegal sex discrimination is "not limited to economic or tangible discrimination." It also covers sexual harassment that creates a "hostile environment."
Teresa Harris vs. Forklift Systems (92-1168) bubbled up to the Supreme Court allowing it to clarify lower court rulings. The Court ruled 9-0 that Harris did not need to prove that she suffered psychological harm, her burden was to prove that the harassment frequent, severe, humiliating, and an unreasonable interference with her work performance.
Subprinciple E.
To be restricted speech must be directed to inciting an illegal ACTION and
the must be imminent.
In Brandenburg v. Ohio, (1969) a unanimous decision by the Supreme Court overturned Brandenburg's conviction for having advocated anti-black violence to a gathering of the Ku Klux Klan. The Court said political speech was protected unless it was "directed to inciting or producing imminent lawless action, and is likely to produce such action."
In National Gay Task Force v. Board of Education, an Oklahoma statue requiring teachers who advocated homosexual activity to be fired was struck down on the grounds that the First Amendment does not permit someone to be punished for advocating illegal conduct at some indefinite future time.
Even advocacy of non-violent protests cannot be held actionable when it results in violence (NAACP v. Claiborne Hardware Company).
Subprinciple F.
Universities may restrict speech that constitutes a threat that is "unequivocal,
unconditional, immediate and specific as to the person threatened as to
convey a gravity of purpose and imminent prospect of execution . . ."
This principle was established in U.S. v. Kelner and r that constitute inforced in Healy v. James where in the Court ruled that speech that is "likely to materially and substantially disrupt the work and discipline of the school" is not protected by the First Amendment.