With school back in session, the campus is once again full of students from various backgrounds and walks of life. In an increasingly polarized climate, an unfortunate side effect of the beginning of the school year is an apparent increase in incidents of hate speech, harassment and vandalism. These incidents include a homophobic slur being used at the meeting of a recognized student group and racist slurs being used in a residence laundry facility. University safety officials say the increase is likely due to greater awareness of the RBIRT process. Campus leaders are determined to transparently communicate these incidents as part of ongoing efforts to reduce occurrences over time.
While any type of behavior that attacks or targets individuals or groups based on protected classes such as race, religion, sexual orientation, gender or disability is contrary to the University of Utah’s goal to create a safe and inclusive campus environment, university officials also have a legal responsibility to protect the First Amendment rights of all members of the campus community.
In an effort to provide more information to students about why the university can and cannot prohibit certain behaviors, Christina Koningisor, an associate professor at the S. J. Quinney College of Law, answered some questions about the right of free speech on college campuses.
In a university setting, what are the guiding principles for what is and is not considered free speech?
The Supreme Court has consistently held that the First Amendment does apply to public universities. We have lots of examples, but in the Healy v. James 1972 case, the court said “the precedents of this court leave no room for the view that… the First Amendment protections should apply with less force on college campuses than in the community at large.” What that means is discrimination based on the content of someone’s speech must meet a really high threshold and the university has to meet the standard that is generally referred to as strict scrutiny. That means that restrictions on speech have to be narrowly tailored to achieve a compelling government interest and it must be the least restrictive way of doing so.
What is speech?
Speech is not just oral or written language, it’s any conduct intended to communicate an idea or message that can be reasonably understood. So images, videos, emojis, armbands, etc. All of those things are going to fall within expressive conduct.
There are also other categories of speech that receive much less protection. These include incitement, fighting words, defamation and obscenity.
How does harassment fit into the picture?
While hate speech may be focused on a group more broadly, harassment is aimed at a specific person on the basis of a protected characteristic—gender, race, sexual orientation, religion and so on. When that harassment is pervasive and severe, serves as a threat to employment or education, or creates intimidation in hostile environments, that can sometimes be regulated as well.
For example, if you posted antisemitic messages on the dorm room of a Jewish student, that would be harassment and not First Amendment-protected speech. And in general, universities can restrict nonverbal symbols that directly threaten an individual.
What is important to understand about hate speech?
You often hear people say something like “hate speech isn’t speech” or “it isn’t First Amendment-protected speech.” And that is just not true. That is not what the law is and that is different from what the law should be. In other countries, for example, Germany, they regulate hate speech much more aggressively. So this is not the only way to do it, but that’s the way the law is constructed in the United States. And what the law allows is different from what you should do. And it is also different from what the law should be. I should also mention that hate speech is distinct from hate crimes, where the law criminalizes bias-motivated conduct rather than bias-motivated speech.
Are there any general restrictions a university can put on speech?
Universities are able to impose reasonable restrictions because, as the court has said, “those special characteristics of the school environment.” For example, you can have more restrictive rules for those who are not members of the education community, versus those who are, as long as those distinctions are content-neutral. So you can say non-members of the community have to reserve university space ahead of time and members of the community do not. But you can’t say those who advocate for a particular view must reserve space ahead of time.
What is strict scrutiny?
It’s a really high bar to meet. The government very often fails to meet it when it places content-based restrictions on speech. However, there are categories of speech that receive a lot less protection. One of these is intimidating speech that is directed at a specific individual in a face-to-face confrontation that is likely to provoke a violent reaction. This is often referred to as fighting words. Importantly, it does not refer to harmful or hurtful comments that are made in a speech to a larger group.
Universities can also prohibit and restrict speech that incites violence or other illegal activities against other members of the community or against a property. They can punish speech that intentionally and effectively provokes a crowd to immediately carry out unlawful and violent action. But just using hateful language that describes a group is generally not going to meet this threshold. The justification for this is even hate speech conveys an idea and we’re nervous about the government regulating ideas in general
What are more examples of content-neutral restrictions?
One example is if I were to go with a bullhorn at 1 a.m. in front of a dorm and start yelling my message, it is not a First Amendment violation for the university to say that is not okay. If they were to say, if you are yelling because you love our school and you are talking about how great the administration is, you can do it at one in the morning. But if you are criticizing us, you cannot. So if you are going to implement time, place and manner restrictions, they can’t be pre-textural. There needs to be a legitimate reason why and a content-neutral application.
It’s also important to understand the differences between a public forum, a limited public forum and a nonpublic forum. Public forums are like a public parks. That is where a speaker is going to have the greatest latitude to engage in public speaking. These are the sort of traditional places where ideas are generated.
Limited public forums are places that are occasionally used to air public views, but not always. Examples are classrooms, auditoriums, the library, etc. You can’t permit access based on the content of someone’s speech, but you can say there are certain times people can use them. Non-public forums are like an administrator’s office.
Read more about student expression on the University of Utah campus here.