The First Amendment On Campus Ian Bartrum Professor

The First Amendment On Campus Ian Bartrum, Professor of Law January 5, 2018

Goals For Today • Brief overview of recent events. • Some first principles. • Free Speech Doctrine: – General rules. – Schools & Universities • Closing Thoughts.

Recent First Amendment Events NFL Anthem Protests:

Recent First Amendment Events Charlottesville Protests:

Recent First Amendment Events Berkeley Protests:

Some First Principles

Some First Principles Why Value Free Speech? • For the speaker? • For the audience? • For society? At what cost or danger? • For community? • For government?

Some First Principles Self-Governance: • Alexander Meiklejohn • Value to speaker of political activism • Value to audience of information. • Value to community of engagement and participation.

Some First Principles Discovering Truth: • Oliver Wendell Holmes: “marketplace of ideas”; natural selection. • Intellectual, artistic, scientific value to all stakeholders.

Some First Principles Advancing Autonomy • Primarily concerned with freedom of will, expression, fulfillment of the speaker. • Also, however, education of audience.

Some First Principles Promoting Tolerance: • Primarily concerned with audience of thickening skin. effect • Forces community to confront all ideas. on

Some First Principles Costs & Criticism

Some First Principles

Doctrine: General Rules State Action: • First Amendment applies only to actions that we can attribute to the government. – Laws, regulations, executive orders, court decisions. – Circumstances in which government and private actors are entangled.

Doctrine: General Rules Content: • Is restriction content-based? – Viewpoint-based? – Subject-matter based? – Super strict scrutiny. • Is restriction content-neutral? – Time, place, or manner? – “Secondary effects”? – Intermediate scrutiny.

Doctrine: General Rules Forum: • Traditional Public Forum • Designated Public Forum • Limited Public Forum • Non-public Forum

Doctrine: General Rules Speaker: • Individual • Corporation • Government

Doctrine: General Rules Type of Speech: • Political • General • Symbolic • Less protected: – Incitement of illegal activity. – Fighting words / Hate Speech – Defamation

Doctrine: General Rules Symbolic Speech / Conduct: • Intended to convey a specific message. • Likely to be understood. • Regulation must target non-speech elements of conduct.

Doctrine: General Rules Incitement: • Clear and Present Danger • Brandenburg Test: – Intended and Likely to cause – Imminent – Lawless behavior • Unprotected

Doctrine: General Rules Fighting Words / Hate Speech: • Words whose very utterance tend incite violence or inflict harm. • Modern hate speech: – “Intent to intimidate” must be element of crime. • Unprotected.

Doctrine: General Rules Defamation: • Public or private figure? Plaintiff Burden of Proof Mens Rea: Compensatory Actual Malice Mens Rea: Punitive Public Official Clear and Convincing Evidence Public Figure Clear and Convincing Evidence Actual Malice Private Figure/ Matter of Public Concern Preponderance of the Evidence Negligence Actual Malice Private Figure/ Matter of Private Concern Preponderance of the Evidence Negligence Actual Malice

Doctrine: General Rules Permits / Licenses: • Content-neutral: Time, place, or manner. • Important government purpose. • Clear criteria / no discretion • Provide for judicial review.

Doctrine: Schools & Universities Early Cases: • Barnette, Tinker, Papish: – Court clearly extends First Amendment protections to students. – Not as clear about faculty, but strong sense of academic freedom supports applying constitutional principles.

Doctrine: Schools & Universities Modern Recent Cases: • More deference to administrators: – Fraser: Punishment for lewd speech. – Hazelwood: Censor articles on student pregnancy (students w/ faculty advisor). – Morse: Can punish “Bong Hits 4 Jesus”

Doctrine: Schools & Universities Freedom of Association: • Schools can place some conditions on receipt of funding or support. – Roberts v. Jaycees: Still subject to antidiscrimination law. • But note: Boy Scouts v. Dale: Permits discrimination against homosexuals. – CLS v. Martinez: University can require a “take all comers” membership policy.

Closing Thoughts “In those wretched countries where a man cannot call his tongue his own, he can scarce call anything his own. Whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech. ” — Benjamin Franklin