This summer, the First Amendment Center released its 17th annual “State of the First Amendment” survey. The results made for depressing reading on a number of fronts, with some of the most disappointing figures coming in response to the most basic question of them all: What exactly does the First Amendment guarantee? Of the roughly 1,000 adults participating in the survey, only 59% knew that the First Amendment guarantees freedom of speech, and 36% couldn’t name any of the five explicit guarantees it offers.
PolicyMic readers are a smart and informed bunch, but just to make sure we’re all on the same page, here is the First Amendment’s text in full.
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
These rights are of particular importance in the college setting, which the Supreme Court recognized in Healy v. James (1972) as “peculiarly the ‘marketplace of ideas.’” But as the work of my organization, the Foundation for Individual Rights in Education (FIRE), has documented, the court's wisdom is not self-fulfilling. All five of the freedoms articulated in the First Amendment, in fact, face threats on campus — whether from university administrators, fellow students, or encroaching state and federal laws. (Note: Most of the examples I cite below are from cases at public universities, which are bound by the First Amendment, but more often than not the same principles apply at private universities, many of which are all too happy to make promises of free expression.)
First things first: Your expression on a public university campus doesn’t lose its protection simply by being religious in nature. The Supreme Court’s decisions in cases like Widmar v. Vincent (1981) and Rosenberger v. Rector and Visitors of the University of Virginia (1995) made sure of this, requiring religious expression to be treated the same as any other. This means, for instance, that universities funding student organizations through the collection of mandatory activity fees cannot deny recognition or funding to religious student groups simply for being religious. This hasn’t stopped some student governments, though, from denying religious groups the right to exist on campus. While the Supreme Court has, on several occasions, bolstered religious liberty on campus, more recently its decisions have undermined it. Following its controversial decision in Christian Legal Society v. Martinez (2010), numerous universities have installed variations of “all-comers” policies, which threaten group cohesion and identity by forbidding groups to use their own chosen criteria to select leaders for their groups. These policies threaten all belief-based groups (such as your campus chapters of the College Democrats or Republicans), not just religious groups. At Vanderbilt University, such a policy caused an exodus of religious groups, and no doubt we’ll be dealing with the negative consequences of Martinez for years to come.
Freedom of speech is the big one when it comes to the freedoms associated with the First Amendment. And as I detailed in a two-part piece for PolicyMic last year, the ways in which the right to speak freely on the college campus can be threatened are numerous. FIRE’s complete case archive provides further evidence of this. Students are routinely investigated and punished on the basis of their protected expression simply because the expression may prove “offensive” to others. Unconstitutional speech codes are in effect at a shocking percentage of universities (62%, by our last count). The list goes on and on — and it’s expanding. This May, the Departments of Education and Justice, resolving an investigation into the University of Montana’s handling of sexual assault cases, mandated harsh new requirements on prosecuting sexual harassment, explicitly referring to the new regime as a “blueprint” for combating sexual harassment and assault nationwide. The mandate loosely, and very problematically, defines sexual harassment as “any unwelcome conduct of a sexual nature,” including “verbal conduct,” removing crucial safeguards and ignoring both Supreme Court precedent and its own prior guidance. Much more on this ongoing threat to free speech, which has also attracted the concern of the American Association of University Professors’ Committee on Women in the Academic Profession, among others, can be found at FIRE’s website.
Just because a newspaper is published by college students doesn’t mean it doesn’t have the same First Amendment protections as the big-kid publications. Try telling that to some colleges, though. Take the University of Memphis and the University of West Georgia, for example, where student newspapers were targeted with funding cuts in retaliation for content that rubbed other students and administrators the wrong way. And then there’s East Carolina University, which suspiciously fired the adviser to its student newspaper following the paper’s controversial front-page publication of photos of a streaker at a football game. The adviser later settled with the university for more than $30,000, but that's chump change compared to what Chicago State University had to pony up. As the Student Press Law Center reports, Chicago State has been ordered to pay more than $210,000 in court costs and attorneys' fees for firing a professor and student editor from the campus paper, in violation of the First Amendment. And then there are the countless instances of students stealing and destroying newspapers for printing content they disagree with, and the numerous instances in which satirical publications have been investigated or punished for stepping into politically incorrect territory. The same First Amendment that protects The New York Times protects The West Georgian, though to many on campus this truth is far from self-evident.
Want to have a demonstration on your campus? Better check your university’s policies first, and be prepared for miles of red tape. University bureaucracies are known to burden expression with all sorts of unreasonable demands. Student groups might be burdened with mandatory prior notice and approval requirements, sometimes five or 10 business days in advance, only to find their right to expression limited to a certain amount of time per day. Worst of all are the notorious campus “free speech zones,” which unconstitutionally confine speech to small, pre-defined locations often far removed from their target audiences. At the University of Cincinnati, members of the group Young Americans for Liberty were not only required to register for a petition drive 10 business days in advance, but also told that they could face arrest if they took their activity outside Cincinnati’s tiny “free speech area,” measuring just 0.1% of the university’s 137-acre main campus. (That red sliver in the picture? That's it.) And until last year, Virginia’s Christopher Newport University only designated a single 20’x20’ area for expressive activities — a grand total of 0.00004% of the campus. Isn’t the whole campus supposed to be a free speech zone? Though numerous schools (including Cincinnati) have had their free speech zones struck down in court, universities are still slow to get the message.
Broadly speaking, universities frequently get tangled up on political expression in much the same way they do with religious expression (see this PolicyMic entry of mine from last year on the subject). Last year, for example, Michigan State University’s student government improperly denied funding for the College Libertarians to host a lecture by historian and free-market enthusiast Tom Woods, mistakenly claiming that it was forbidden from funding groups with “political agendas.” (Michigan State later reversed its decision.) So do broad restrictions on political expression ever implicate the First Amendment right to “petition the Government for a redress of grievances”? You bet. Take the Cincinnati case referenced above, for starters. And in 2010 Northern Illinois University’s Student Senate denied recognition to the group Students for Sensible Drug Policy; its bylaws, in fact, prohibited funding to political and religious organizations. It also prohibited unrecognized organizations from distributing fliers on campus and, amazingly, prohibited groups from receiving funding if any of their activities resulted in individuals “petitioning Federal, State, or Local legislative or executive bodies for policies advocated by that group.” For those keeping score, NIU’s Student Senate managed to violate not just the right to petition the government — it violated all five First Amendment freedoms in one fell swoop. Such accomplishments may be rare, but they’re nonetheless a startling reminder of how quickly it can all go wrong on campuses where the First Amendment is supposed to carry the force of law.