The First Amendment has something to do with campus protests

Fox Business

The First Amendment doesn’t automatically apply at private schools.
To be sure, private universities tend to embrace free expression more than, say, private businesses.
Those policies and approaches, though, are driven by principles like academic freedom and the marketplace of ideas, not constitutional law.
Columbia University, a hub through this round of campus protests and the scene of an enormous police response on Tuesday night, has not forbidden all speech.
“The regulation forbidding sleeping meets the requirements for a reasonable time, place, or manner restriction of expression,” Justice Byron White wrote in his opinion.
A court would never see a building occupation like the one this week at Columbia, Mr. Heaphy predicted, as a protected First Amendment activity.
Generally, yes, but, for public universities, the First Amendment still applies.
Again, private universities have more discretion.


Whether their actions were limited to merely holding signs or involved more extreme actions like erecting camps, occupying buildings, or chanting antisemitic slogans, college protesters have frequently invoked the First Amendment as justification for their actions.

However, a number of legal experts, university lawyers, and administrators feel that at least some of those claims about freedom of speech confuse, misrepresent, contradict, or even violate the amendment, which protects against repression by the state.

Whose interpretation and values win out, in the courts or among the administrators entrusted with enforcing discipline, will have a significant impact on whether or not protesters are penalized for causing unrest on campus.

Private schools are exempt from the First Amendment’s requirements.

The First Amendment, which states that no law may “abrise the freedom of speech” or “the right of the people peaceably to assemble,” must take precedence over public universities as branches of government. “.

Nonetheless, speech and protest policies are set by private universities.

It is true that free speech is generally more accepted at private universities than, say, at private companies. However, these strategies and policies are not based on constitutional law, but rather on values like academic freedom and the free exchange of ideas.

Though it was the center of Tuesday night’s massive police response and the site of this round of campus protests, Columbia University has not outright banned speech. Though the university promises that “all members of the university community have the right to speak, study, research, teach and express their own views,” its current policy includes a number of guidelines, like allowable demonstration zones and preregistration of protests, that it claims are meant to ensure safety. “.

According to legal experts, Columbia faces far less legal risk than any other public university, even though the university’s strategy may enrage students and faculty and possibly restrict speech on campus.

One important criterion is “time, place, and manner.”.

Frameworks are comforting to academic administrators and the courts alike, and case law pertaining to free speech has a strong emphasis on the concept of “time, place, and manner.”.

Governments may occasionally control the operational aspects of speech under that theory. The theory permits some limitations in the interest of maintaining public safety and order, but it does not give the government unrestricted power over speech. For instance, regulations must be applied without favoring any particular point of view.

The doctrine provides university administrators with a kind of blueprint for protest regulations that can withstand political backlash and legal scrutiny.

Time, place, and manner were always considered the best ways to permit protest while also making sure that it didn’t interfere with academic programming and activities, according to Nicholas B. Dirks, a former chancellor of Berkeley University, one of the most illustrious protest schools in the nation.

However, that’s easier said than done, Dr. Dirks continued. “.

The “imminent lawless action” test is another crucial one. “.

In its First Amendment decision, the Supreme Court mentioned the words “clear and present danger” not long after the First World War. A half-century later, the court took a stance on “imminent lawless action.”. “.

This standard is crucial for determining whether the First Amendment, for instance, shields antisemitic chants. The language is not regarded as constitutionally sound if it is meant to incite a “imminent lawless action” and is likely to do so. However, if a chant falls short of any part of that requirement, it is protected, so the government might not take action against even some egregiously offensive or uncomfortable speech.

“When the behavior and the speech are near the line, that’s the tricky part,” Timothy J. stated. Heaphy, who served as the Obama administration’s US attorney before becoming the University of Virginia’s university counsel.

Do campers have First Amendment protections?

The courts have ruled that restrictions on overnight camping and similar activities can pass the time, place, and manner test even when they occur on public property, despite the fact that some campus protestors view their encampments as a form of speech.

For example, in 1984, the Supreme Court ruled 7-2 that the National Park Service could deny a request from protestors to spend the night in “symbolic tents” close to the White House because the agency’s rules forbade sleeping in locations that weren’t campgrounds.

Justice Byron White stated in his opinion that the sleeping ban “meets the requirements for a reasonable time, place, or manner restriction of expression.”.

He continued, “The regulation leaves open ample alternative methods of communicating the intended message regarding the plight of the homeless, and is neutral with regard to the message presented.”.

Mr. Heaphy predicted that a court would never recognize a building occupation such as the one taking place at Columbia this week as a protected First Amendment activity.

“The building was occupied by students,” he said. That’s behavior. That isn’t going to endure. “.

Can colleges alter their policies?

In general, sure, but the First Amendment still holds true for public universities.

Once more, private universities enjoy greater autonomy.

Although encampments are against school policy, administrators at the University of Chicago, according to president Paul Alivisatos, “may allow an encampment to remain for a short time despite the obvious violations of policy.”. “.

The impact of a modest encampment is not that different from that of a traditional rally or march, he said, citing “the importance of the expressive rights of our students” to hint at that possibility. “.

He advised students involved in the encampment “to instead embrace the multitude of other tools at their disposal,” signaling that the university would not tolerate the policy’s dismantling. “.

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