Courts Balance Interests in
Protecting Student Speech

That American college and university students enjoy First Amendment protection for much of what they say on campus is nowadays beyond dispute. In 1972, however, the issue reached the US Supreme Court in Healy v. James, where the high court addressed whether a public college could refuse to allow students to establish a local chapter of the Students for a Democratic Society.

Writing for the majority, Justice Powell acknowledged "the mutual interests of students, faculty members, and administrators in an environment free from disruptive interference with the educational process" and the "equally significant interest in the widest latitude for free expression and debate consonant with the maintenance of order."

While the First Amendment to the US Constitution, by its terms, protects citizens from infringement against free expression by Congress, courts have over the years extended those protections to speech threatened by state and local governments, and even that threatened by governmental entities like public institutions of higher education.

Now, the law deems officials at those institutions to be representatives of the government, who must afford due respect to the rights of expression invoked by their students under the First Amendment.

No doubt most officials at public colleges and universities would support Justice Powell in Widmar v. Vincent, which addressed student First Amendment rights:

"The college classroom with its surrounding environs is peculiarly 'the marketplace of ideas.' . . .

"We therefore have held that students enjoy First Amendment rights of speech and association on the campus, and that the 'denial [to particular groups] of use of campus facilities for meetings and other appropriate purposes' must be subjected to the level of scrutiny appropriate to any form of prior restraint."

Consequently, for more than twenty years, numerous courts have held that much at a public college or university campus is what First Amendment law would deem a "limited public forum." Such a setting-whether it be a campus sidewalk, kiosk, bulletin board, or even such an abstract forum as a student fee system-is one the state has chosen to be open for public use as a place for expressive activity.

Even though the state is not required to create such a forum for speech or other expression, the limited public forum is one in which the government has virtually no authority to control what is said on the basis of its content. The law allows the public institution to impose only reasonable time, place and manner restrictions on expression.

Those restrictions represent the other side of the balance Justice Powell highlighted in Healy-keeping the academic environment "free from disruptive interference." As a result, campus regulations on expression inevitably receive close examination by American judges.

In Hays County Guardian v. Supple, for instance, college officials barred distribution of a free newspaper on its campus, and justified their policies on concerns over litter, preserving the campus appearance, and protecting students from being victims of fraud and deception over what they might read in the publication.

The US Court of Appeals for the Fifth Circuit, however, disregarded all those reasons, and held that the supposed time-place-manner restrictions had the unlawful effect of squelching otherwise permissible speech.

From cases such as these, college officials know to craft narrowly their restrictions on the time, place and manner of campus speech.

Published in the Summer 2003 Edition of In Brief