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The Ten Rules Of Free Speech And College Students: Free Speech Rules.

This will catch us up on this series by UCLA First Amendment Professor Eugene Volokh.

Free Speech Rules: The Ten Rules of Free Speech and College Students Lots of recent free speech debates have come up at colleges.

Here are ten rules for how the freedom of speech applies to college students.

1. Students at public colleges may not be disciplined for their speech. (unless it falls into the narrow First Amendment exceptions such as true threats of criminal attack, or face-to-face personal insults that are likely to start a fight). That’s true even if the speech is seen as evil or offensive, whether racist, sexist, religiously bigoted, unpatriotic, supportive of crime, or whatever else. For instance, in Iota Xi v. George Mason University, a federal appeals court held that public university students can’t be disciplined for putting on an “ugly woman” skit at a fraternity event, in which one of the students was in blackface.

2. A public college can’t limit broadly available benefits based on a group’s viewpoint. It can’t, for instance, deny bulletin board space to groups that spread religious views, anti-homosexuality views, racially offensive parodies, or any other views.

3. This is also true for student-run newspapers, unless the college so controls the newspaper that it’s viewed as being partly the university’s own speech.

4. Inside the classroom, though, the professor is in charge. Professors may orchestrate class discussions in a way that they think brings out important ideas and facts, and promotes student participation. That means they can cut off students who speak off topic, or who insult their classmates. Professors can also ask students to make the best argument for a particular viewpoint, and tell students that certain views—say, that the Earth is 6000 years old—are wrong. We expect professors to be broad-minded on many issues, and not unduly block student opinions just because they disagree with those opinions. But the First Amendment doesn’t give students a right to speak in the classroom when the professor cuts them off.

5. Grading of student exams and papers likewise can’t be content-neutral, or even viewpoint-neutral. Professors shouldn’t grade down students based on mere ideological disagreement, and colleges may forbid outright political discrimination by professors. But grading student work inevitably requires a judgment about the quality of that work. And in many disciplines that will be a subjective judgment, based on more than just objectively determinable facts.

6. Colleges and college departments can express their own views—or can foster a selected set of views—without giving equal time to others. If a history department puts on a conference, for instance, it can choose the panelists based on their viewpoints, even if that means excluding some viewpoints and preferring others.

7. People have no First Amendment right to shout down speakers, whether the speaker is a guest speaker in a class, or a speaker invited by a student group. Most speeches at colleges let listeners ask questions, including critical ones, during a Q&A at the end; and there’s usually ample room to leaflet or protest on sidewalks outside the building. But it’s perfectly constitutional to have content-neutral rules banning interruptions when a speaker has the floor, and that give invited speakers the opportunity to speak without sharing that opportunity with students or others.

8. A public college has no First Amendment obligation to protect speakers against shouting down, or even against violence. But it would violate the First Amendment for the college to selectively refuse to protect speakers who express some views, while protecting others.

9. Content-neutral fees and restrictions are likely constitutional, but a public college probably violates student groups’ First Amendment rights when it charges high security fees for invited speakers who express controversial views.

10. All this, of course, applies only to public colleges, because the First Amendment only applies to the federal, state, and local governments, not to private organizations (even private nonprofits that get tax exemptions and government subsidies). But many colleges voluntarily promise to uphold student free speech rights, as part of the college’s commitment to academic freedom—and as a way of attracting students and donors. And in California, a state statute applies some First Amendment rules to private colleges as well as public ones.

Pay attention to a couple of the rules that apply elsewhere as well.

First is from Rule #1:

….(unless it falls into the narrow First Amendment exceptions such as true threats of criminal attack, or face-to-face personal insults that are likely to start a fight)….

We bring this up because this is the famous “fighting words doctrine” that Robert Burns and others tried to say made Commissioner Lober’s comment about Democrat head Stacy Patel was not protected by the First Amendment. As we tried to point out in a previous post, in order for the fighting words doctrine to kick in, the statement that is offensive must be uttered face to face. Lober’s comments about Patel, no matter how wrong and offensive we think they were, were made on a computer miles away from where Patel was. The doctrine that many people attacking Lober for those statements seem to think that the statement alone was “fighting words” when in fact a critical element – proximity to the listener – was not there.

The second rule we want to highlight is number 7.

7. People have no First Amendment right to shout down speakers, whether the speaker is a guest speaker in a class, or a speaker invited by a student group.

Somehow people think that their Constitutional right to free speech means that they can prevent others from hearing a speaker with the same First Amendment rights. It doesn’t work that way.

We have never understood the rationale by people that believe that ideas are so dangerous that they cannot be heard by rational people. If anything, if people want to go out and say stupid things, we support that because it shows their idiocy.

People often say that banning of something such as drugs or alcohol results in people’s desire for the things because they want to know what is being hidden from them.

The same thing is true for speech.

Each time we hear people that try to shout down a speaker, we think “what are those people afraid of? If they are afraid, maybe we want to hear what is being said.”

That’s not to say that we don’t support protests of speakers, but protesting and trying to shout down a speaker is not the same thing.

The so called “heckler’s veto” is something that we should never stand for in public forums.



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