Know Your Rights: Free Speech at Colleges and Universities

Both the California Constitution and the First Amendment to the U.S. Constitution offer strong free speech protections—even for speech that is unpopular, controversial, political, or deeply offensive. These constitutional provisions prohibit officials at public colleges and universities from establishing or enforcing disciplinary rules that punish protected expression.

But there are some limits.

On campus, you have the right to engage in protected speech. This means you can wear expressive clothing, hand out flyers, collect signatures for petitions, campaign to effect change, and come together for protests, so long as:

• you are expressing yourself in a public area on campus;
• your expression doesn’t substantially disrupt classes or the school’s other essential functions; and
• your expression complies with “time, place, and manner” rules that your school has established.

You also have the right to a learning environment that is free from unlawful harassment.

Speech is more, or less, protected depending on where you seek to express yourself. In general, the more public an area, the better the reason the school needs to restrict your right to speak, assemble, or protest. And in almost no circumstance can a school restrict your speech merely because it doesn’t like your viewpoint.

Courts analyze whether a speech restriction is lawful using a place-based framework that begins with determining if you are in (1) a traditional public forum, (2) a limited public forum, or (3) a nonpublic forum.

TRADITIONAL PUBLIC FORUM:

A space that has traditionally been open for public speech activities—like a park, plaza, or sidewalk. A school can restrict speech only if the restriction is tied to a significant governmental interest and not based on the speech’s content. Any restriction must be “reasonable” as to “time, place, and manner,” and a school must still leave open good alternatives at different times or places for protected speech.

• Example: Depending on its reasons, a school could probably require that all demonstrations in a campus quad take place between the hours of 8am and 10pm. It could also say that you aren’t allowed to block building entrances because of safety or demonstrate using amplified sound near where classes are in session. And a school could likely prevent students in dorms from hanging displays in their windows (but it couldn’t only prohibit hanging Confederate or pride flags because that would be a content- and viewpoint-based restriction).

LIMITED PUBLIC FORUM:

A space where the government (or, here, a school) chooses to allow speech for certain groups or subjects. In such a space, officials are allowed to restrict speech based on content or subject matter, but not on the basis of viewpoint.

• Example: A school could make a bulletin board available for advertising campus events (but prohibit signage about other matters) or it could let registered student groups borrow a room in an administrative building (but decline to let others in the community borrow it).

NONPUBLIC FORUM:

A space that is not typically available for public expression—even if it is school property or owned by the government. Speech restrictions need only be viewpoint-neutral and reasonable given how the space is intended to be used. 

• Example: A school could prohibit affixing posters to building walls not designated for expressive activity, could prescribe that only school-affiliated groups are allowed to use the internal school mail system, and could punish students for demonstrating in a private office where the public is not typically invited.

California colleges and universities are allowed, within reason, to pass content-neutral rules about when, where, and how you protest. They can, for example, ban overnight camping on campus and reasonably limit protests to certain areas at certain times of day.

Schools can also require permits for large, pre-planned assemblies as a way of managing competing demands on shared public spaces. (No permit should be required if you’re protesting by yourself or in a small group that is not too disruptive of a school event.) Whatever the rules are, they must be applied equally to everyone and must leave open meaningful alternative channels to free expression. Context matters in determining what is reasonable or unreasonable.

Inside the classroom, speech can be constrained to topics relevant to a class’s stated scope and subject to rules promoting civil dialogue and learning. Faculty must satisfy scholarly norms and meet teaching excellence standards. But outside the classroom, including on social media, courts have said that First Amendment freedoms need “breathing space” to survive.

With respect to student groups, a school can require that all student organizations—as a condition for recognition and receipt of school funding—be open to all students.

Certain narrowly defined categories of speech fall outside constitutional protections. Speech that constitutes obscenity, defamation, or harassment is unprotected. So is speech that is intended to incite imminent violence and lawless action, or speech that conveys a true threat of violence. The “true threats” analysis focuses on protecting a person from fear of physical harm, but not necessarily from emotional distress. A school must give equal treatment to the speech that falls in the same unprotected category. Officials could punish defamation, for instance, but they could not only punish defamation of school officials.

Under federal anti-discrimination statutes, such as Title VI of the Civil Rights Act and Title IX of the Education Amendments Act, all colleges and universities receiving federal funds must address discrimination that involves a “protected characteristic,” such as a person’s race, national origin, religion, sex, age, or disability. It can be challenging for school officials to balance anti-discrimination obligations with constitutional free speech guarantees.

To be considered unlawful conduct, the discriminatory harassment must include something beyond the expression of offensive views, words, or symbols. The U.S. Supreme Court established this test for when speech crosses the line: The disputed act must be (1) unwelcome; (2) discriminatory on the basis of a protected characteristic; (3) specifically targeted at an individual or a group of individuals bearing that characteristic; and (4) “so severe, pervasive, and objectively offensive” that it “undermines and detracts from the victim’s educational experience.”

Courts analyze whether the targeted students are effectively being denied “equal access to an institution’s resources and opportunities.” A university or college is liable for student-on-student harassment only if it is “deliberately indifferent” to the harassment allegedly taking place.

Free speech laws generally protect speech, not conduct. There is no First Amendment right, for example, to spray graffiti on a public building or to destroy someone else’s property, even if the act is done to communicate a message. Nor do free speech protections readily shield encampments or protests that substantially disrupt classes or other events like graduation ceremonies and Board of Regents meetings.

Physically intimidating students by blocking their movements or by pursuing them aggressively is definitively not expressive speech.

College and university officials have legal obligations to combat discrimination and a responsibility to maintain order. But this authority can’t be used to curtail free speech rights on campus or shut down a protest just because an official doesn’t like what you’re saying.

In fashioning responses to campus activism, schools must not single out particular viewpoints for censorship, discipline, or disproportionate punishment. Campus officials and law enforcement generally may not:

• prohibit an event from taking place based on a concern that some attendees may react negatively or engage in illegal activity;
• punish peaceful speakers if a listener’s reaction turns violent; or
• silence a peaceful speaker as an easy alternative to managing a mass event.

A counterprotester may not lawfully silence, or substantially disrupt, another person’s protected speech. One does not have the right to a “Heckler’s Veto” by, for example, blocking-off access to an event featuring a controversial speaker or chanting over the remarks of that speaker.

The law would protect, however, a counterprotestor who wants to use their speech to picket outside an event, distribute leaflets, hold up signs, or host an alternative event at another location.

During a demonstration, school officials may choose to enlist campus security, campus police, or local law enforcement. These officers should not break up a gathering if people are complying with reasonable time, place, and manner restrictions—the big exceptions are if there is a “clear and present danger of riot,” a specific threat of harm to a particular person, or some other immediate threat to public safety (like the sustained shut down of a building entrance or major roadway).

If officers do give a dispersal order, they must provide actual notice of the order and allow a reasonable opportunity to comply, which includes sufficient time and an unobstructed exit path. The police may use reasonable force to break up a gathering or to arrest a person who is violating the law. What is “reasonable” depends on all the circumstances.

If you are accused of breaking school rules while protesting and charged with conduct that the law does not protect, you may face punishment through your school’s disciplinary system. Penalties could include community service, restitution, probation, suspension, or expulsion.

Your university or college may also try to prohibit students from participating in extracurricular activities, holding leadership positions in student groups, or participating in a graduation ceremony. It is also possible that an administration could respond by revoking financial assistance or threatening negative character reviews.

If your school accuses you of misconduct, the school is legally required to notify you of the particular charges alleged. Familiarize yourself with your due process rights and the school’s disciplinary procedures. Be sure to download and save all communications in a central place, investigate whether your school allows advisors or others to support you in the process, and be careful not to make any incriminating statements without first consulting a lawyer.