Balance Interests in
Protecting Student Speech
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
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."
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.
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.
most officials at public colleges and universities would support Justice
Powell in Widmar v. Vincent, which addressed student First Amendment
college classroom with its surrounding environs is peculiarly 'the marketplace
of ideas.' . . .
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
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.
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.
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.
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.
such as these, college officials know to craft narrowly their restrictions
on the time, place and manner of campus speech.
in the Summer 2003 Edition of In Brief