By Casey Mattox
More than four decades ago, the Supreme Court made it clear that public college students do not sacrifice their constitutional rights when they arrive on campus, finding “no room for the view that … First Amendment protections should apply with less force on college campuses than in the community at large.”
Yet the reality of most students does not reflect the promise of the “marketplace of ideas.” Universities are regulating what students may say, when and where they can say it, and even who will speak for them. Increasingly, state legislatures are responding by enacting laws to protect student free speech. We are pleased to release today a review of these state laws – highlighting the states that have protected free speech on their state-funded campuses … and those that have a lot of work to do.
For decades, universities have enacted “speech codes” to regulate student expression. These policies limit what students may say and often take the form of “harassment,” “civility,” or similar policies that lump constitutionally protected speech in with true threats, harassment, and other unprotected speech. For instance, just last year, Alliance Defending Freedom (ADF) successfully challenged an Iowa State policy that deemed speech “harassment” if other students thought it was not “legitimate” or “necessary” or “lacked a constructive purpose.” Despite these policies being clearly unconstitutional, they are very common.
In addition to restricting what students may say, many universities have also strictly limited when and where students may speak – often combining these limits with requirements that administrators approve student speech or literature distribution in advance. North Carolina State required students to notify the administration five days in advance of any oral or written communication anywhere on campus until we sued and a federal court ordered the policy changed. And one school has even arrested Young Americans for Liberty members for distributing the Constitution on their campus.
Finally, free speech is only free if students decide who speaks for them. Students regularly join together with like-minded students to advocate for any number of religious, political, or other causes, building community with one another and enriching the campus environment through their advocacy. Like all student groups, they seek to elect leaders who actually share the views that the group intends to promote. But some universities have tried to prevent religious and political student organizations from having that choice.
Why It Matters
Free speech on campus affects all of us. Today’s college students are tomorrow’s legislators, judges, teachers, and voters. The lessons they are learning about how the First Amendment works will impact our future because what happens on campus will not stay on campus. Indeed, the Supreme Court has even warned that if we do not protect free speech on campus, “our civilization will stagnate and die.” As dramatic as that sounds, when two-thirds of all Americans now attend college it is only natural that our broader culture will be shaped by what we learn about the value of free speech and religious freedom in those formative years.
How States Are Responding
While the First Amendment protects free speech, universities continue to violate these core constitutional freedoms. The ADF Center for Academic Freedom has litigated federal lawsuits against over a dozen colleges and universities in the last year alone. And we have a 90 percent success rate in challenging these violations of students’ First Amendment rights. If you’re a student, you should know your rights, exercise them, and ensure that your campus is respecting the First Amendment.
Appalled that their public institutions are suppressing rather than supporting free speech and association, states are increasingly enacting legislation to ensure that public universities affirm and protect those values. There are a number of model bills – all of which have their merits. But the American Legislative Exchange Council’s new “FORUM Act” would address all three of these threats to student free speech: ending speech codes, speech zones, and violations of students’ freedom of association. The legislation would also allow students to pursue legal action in state or federal court when their rights are violated.
As state legislatures consider ways to address the threats to free speech on their tax-funded campuses, we are pleased to provide this guide to current state laws protecting the rights of free speech and association on public university campuses. It is our hope that we will have to update this information frequently as more states join the fight to defend the First Amendment on our campuses, teaching students to know their own constitutional rights and respect the constitutional rights of others.
Get the State Law Guide