Running head: THE 1ST AMENDMENT ON CAMPUS

1st Amendment Reaction Paper

Mike Farrell
Wright state University

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The freedom of speech is a right that students in higher education have cherished and
taken advantage of for the past two centuries as a means to having their voices heard when
desired. While guaranteed in the First Amendment of the United States Constitution, not all
speech is protected and administrators have both the right and obligation to limit it when it
interferes with the academic mission of the university. The difficulty for administrators is to
understand when it is acceptable to restrict this freedom on campus or when doing so is a
violation of an individuals rights and is likely to bring a costly lawsuit. Public school
administrators place themselves in a position to act in accordance with the law when they
understand the institutions relationship with the government and what that entails legally, apply a
set analysis to First Amendment issues on campus, and are aware of and understand previous
case law.
When contemplating the restriction of the expression of the First Amendment on
campuses it is important to understand the fundamental differences between public and private
institutions. Public institutions, as government entities, are required to protect all constitutional
rights of students as well as contractual rights. Private schools, as privately owned organizations,
have more freedom to restrict constitutional rights of students as they see fit for their institutional
mission. Administrators at four-year public institutions are required to stay abreast of all
government laws, mandates, and regulations as they are held accountable for upholding them.
The protection of the freedom of expression on campus, even when it as seen as offensive, is
necessary in most cases. This creates unique challenges for public school administrators when
trying to decide whether or not to limit a form of expression on campus.
Even though the First Amendment rights of students, and others in the community, are to
be protected on public universities there is not a blanket approval for all types of speech, at all

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times, and on all government grounds on campus. Administrators have a vested interest in
restricting the freedom of speech when it interferes with the institutions academic mission and
need to understand times in which they are able to do so to mitigate the risks of being sued. The
expressive act in question must pass the time, place, and manner test or it is open to
administrators moving to ban it. Administrators at public universities can apply an analysis to
these expressions of freedom when determining if it passes this test.
First, determining if the action has any relevant First Amendment implications in
necessary. The topic, such as religion, and medium, such as leaflets or demonstrations, are
indicators to pay attention to. If there are First Amendment implications then the administrator
must then investigate if there are exceptions to the First Amendment that would allow for
restricting the action. These exceptions include obscenity, defamation, the inciting of violence
among others. If it is clear that an exception applies then it can be restricted, however, if there is
any doubt courts will generally side with the individuals who were prevented from expressing
themselves. Lastly, if the activity has First Amendment implications, and an exception either
doesnt apply or is unclear, then the forum of its deliverance must be analyzed. In traditional and
designated public forums the institution has very little ability to regulate freedom of expression
without a clear compelling interest that courts have generally held to be public safety or
educational environment concerns. The courts apply a strict scrutiny to the institutions
reasoning and generally speaking, unless somebody is being physically harmed or classes in
session are being disrupted a compelling interest is very difficult to make and should be
avoided by administrators. Areas designated as limited public forums, such as auditoriums, allow
for closer scrutiny by administrators and a general reasonableness test can be applied. The
reasonableness being that the activity meets the general mission of the building. Lastly, First

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Amendment actions in non-public forums may be restricted if they do not meet the mission of
the area. These areas include classrooms, offices, residence halls, and other academic areas.
Administrators are given greater leeway in these two final areas to limit expressions of speech.
There are many cases in the history of the United States that have been brought to the
courts regarding the ability of universities to limit the freedom of expression by its students. It is
worth analyzing a few cases that are particularly relevant in todays environment in the context
of the First Amendment analysis described above to demonstrate how the steps apply and to give
guidance to higher education administrators at four year public institutions who are considering
taking action against a form of expression. While nowhere near a comprehensive discussion, the
steps are sound and will offer solid guidance. All of the cases discussed already pass the initial
part of the test because they all have First Amendment implications.
In the first case, a local preacher requests permits to speak on the universities main mall
area on campus. His speech is religious based and is found offensive to multiple groups of
students that disapprove of his message for various reasons including women who are clearly
disparaged. When deciding if the administration can take actions against the preacher it can be
determined that there are no exceptions to the type of speech by the preacher that would limit
him from exercising his First Amendment rights. The speech does not constitute sexual
harassment because it cannot be proven to be so severe that it prevents women from using
education programs or services, they were free to avoid and ignore the speech, and it was also
not considered fighting words because no individual was directly confronted. Additionally, the
speech took place in an unlimited designated public forum that must pass the strict scrutiny of
the courts. In this case, no public safety or educational disruption existed in the eyes of the court.
While an analysis of the issue shows that the preacher had the right to demonstrate there were a

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couple tactics administrators are allowed to employ in this situation as long as it applied to all
groups who desired to demonstrate. This includes requiring permits in advance before
demonstrations and initially limiting the amount of times they could demonstrate.
Another relevant case worth exploring by public school administrators is a campus
fraternity costume party in which members dressed in a racially offensive manner that depicted
African-Americans as slaves and whites as their masters. The incident took place at an off
campus location. In this case there is not an exception to the students constitutional right to the
freedom of expression that was displayed, even though it was distasteful and upset students, and
it did not take place in a regulated university forum. Therefore, the university did not have the
right to punish those involved for their actions even though they offended other students. It is
worth noting that there are other avenues for administrators to explore regarding disciplinary
measures such as underage drinking if the they believe that they can prove their case.
The final case demonstrates how difficult it can be to take action against a student that
pushes the boundaries of free speech. A white individual used extremely offensive racial slurs
against an African-American student that resulted in the latter punching the other student. Even
though he attacked the black student verbally toe to toe (directly), and there was a breach of
peace, it would be difficult to prove that a reasonable person would not have been able to walk
away. Currently, court trends indicate that fighting words likely need to include threats of
physical harm to be considered as an exception to free speech.
While in many cases public higher education administrators hands are tied there are
instances in which it is in the best interests of the school and its students to prohibit certain types
of speech. The decision to do so is one that is a difficult one to make given all the potential legal,
political, and social ramifications. While admittedly not as simple or clear cut as it seems,

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applying an analysis to the situation can help administrators arrive at the correct answer as well
of being aware of all relevant laws, mandates, regulations, and case history.

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References

Bird, L. E., Mackin, M. B., & Schuster, S. K. (2006). The First Amendment on campus: a
handbook for college and university administrators. Washington, D.C. : NASPA.