Blog: Higher Ed Beat

Free Speech on Campus Sparks Legal Battles, Safety Concerns
Controversial speakers present "teachable moments" and risks.

Walter Kimbrough remembers when Emory University canceled a speech by Khalid Abdul Muhammad.

It was 1994, and the top aide to Nation of Islam leader Louis Farrakhan had just laced a speech at Kean College with racist and anti-Semitic comments.

Kimbrough, then working for Emory in student affairs, was disappointed with the decision to cancel Muhammad’s speech. The nation’s bastions of higher education should encourage a diversity of ideas, he believed, even – and sometimes, especially -  if they’re offensive.

He remembered that incident when, as president of Philander Smith College in Arkansas, he invited firebrand conservative Ann Coulter to speak. He got some ugly letters from alumni, but Kimbrough said “we hosted her without incident.” In 2012, when he took over the helm at Dillard University in New Orleans, Kimbrough continued his practice of, once a year, inviting a speaker who “might make our campus uneasy.”

That’s remarkable, since campuses ranging from small private liberal arts colleges such as Claremont McKenna to big public flagships  like the University of California, Berkeley have recently been roiled by sit-ins, shout-downs and other kinds of demonstrations by students opposed to providing college platforms to views they find objectionable.

Disputes over speakers who challenge audiences with controversial or even hateful words aren’t new, of course. But such conflicts are getting more attention now from journalists, college officials and the public because of changing interpretations of speech laws, the spread of social media, and a growing concern about violent responses, experts said at the Education Writers Association’s higher education conference, held in October at Georgia State University in Atlanta.

A video of the full discussion on “Political Speech on College Campuses” can be viewed online.

Students on all sides of ideological divides, bolstered by the speed and agility social media lends their causes, seem angrier and more outspoken than ever. University leaders, meanwhile, worry about everything from public relations nightmares to the threat of real violence, the panelists said.

Some schools have recently expelled students for writing social media posts that caused offense, fired educators for taking a stances on controversial issues, or canceled speeches by extremists. Sometimes public school administrators justify such actions by citing security concerns or hate speech laws. Private schools, which aren’t subject to the same disclosure rules as public universities, often don’t have to give any reason at all.

While, of course, campus officials need to ensure the physical safety of students and staff, they also need to preserve free speech rights, the panelists said.

But journalists covering speech issues can’t just assume that the First Amendment  - which bans the federal government from infringing on speech – means anybody has the legal right to say anything anywhere with impunity, warned Frank LoMonte, a journalism professor at the University of Florida who, until recently, was the executive director of the Student Press Law Center.

LoMonte, who also heads the university’s Joseph L. Brechner Center for Freedom of Information, said at the EWA event that courts are always reinterpreting the nuances of what kind of speech is –  or isn’t – protected in various circumstances. Lately, however, some decisions policing speech on social media have struck him as “crazy,” and could set dangerous precedents, he said.  

This year, for example, the U.S. Supreme Court declined to hear the case of Craig Keefe, a nursing student expelled from Central Lakes College in Minnesota for ranting against a fellow student on Facebook. The move left in place the lower court’s decision, which said the college could take such actions against students who violate code of conduct rules.

“The legal standard created by the federal court to rationalize the punishment in Keefe’s case — that speech loses its First Amendment protection if it violates ‘established professional standards’ - puts just about every user of social media at risk” of losing a chance at an education, LoMonte warned. “We can’t be expelling people from community colleges — places that are supposed to have open admissions to all comers, even people with criminal backgrounds — just because they fall short of optimal civility. When you deny someone the benefits of a community college education, there is every chance you are consigning that person to a lifetime of low-wage service labor as opposed to the nursing profession for which Keefe was preparing. Does the punishment really fit the crime? Can we put limits on people’s entire educational and professional futures because of name-calling on Facebook?”

Another looming legal battle is likely to be the issue of incitement, LoMonte said. Courts will likely have to rule on efforts by colleges to manage speakers whose followers commit violence, but who themselves don’t provably incite  violence, for example. Several colleges have outright canceled events involving white nationalist leaders over concerns about followers’ actions.

Insurance is turning into another – and surprising – free speech legal issue, said Ari Cohn, an attorney who is director of the Individual Rights Defense Program at the Foundation for Individual Rights in Education. He said some colleges have forced student groups to take out costly insurance policies to cover potential property damage or bodily harm. Requiring these insurance policies could be an infringement on students’ First Amendment rights, Cohn said. But he said the cases may hinge on whether the cost is considered “reasonable.”

So far, however, LoMonte noted, courts have generally maintained their opposition to the concept of the “heckler’s veto.” The free-speech rights of an individual cannot be curtailed over fear of how his or her opponents may react, LoMonte said.

In addition to these legal issues, college officials have to deal with practicalities: balancing concerns about violence against the educational missions of their institutions. Protests can serve as important “teachable moments” for students, some panelists noted.

Wayne State University Professor John Patrick Leary said he believes the fear of violence is too often used as “a cudgel” to discipline student radicals instead of protecting them. If it’s done right, Leary added, a protest is a dramatic interruption of the order of business.

“The purpose of a protest is to disturb, disrupt,” which can spark students to think more deeply about issues, he said.

Leary criticized some schools’ practices of expelling students for “infringing on the rights of others” through protest, or firing faculty or staff for controversial statements.

Instead, Cohn said, schools should allow protests but encourage students to research controversial speakers and views so they can develop strong, reasoned arguments against statements they find offensive.

“The best thing,” Cohn said, is for students to “learn how to make your opponent look like a fool.” Colleges and universities should encourage these kinds of verbal debates, which can and sometimes should be “ferocious,” Cohn urged.

What about anti-transgender statements, one audience member asked. Where do you draw the line between First Amendment rights and hate speech?

Threats or other encouragement of violence are not protected by free speech laws, Cohn said. But insults, as unpleasant as they are, should be permitted, Cohn argued, noting that as a gay man, he’s had to hear a lot of disparaging things over the years. Those experiences helped him learn how to stand up for his humanity, he said. The college experience should be teaching students that “emotional distress “is a part of life.”

Kimbrough said some college leaders are letting fear of criticism stop them from setting campus-wide tones of tolerance, respect, and openness to difficult conversations.

“Presidents are deathly afraid of what this new environment is like,” he said.

Last year, he noted, Dillard hosted a debate with the candidates running for U.S. Senate in Louisiana. One was David Duke, a former grand wizard of the Ku Klux Klan, who has been barred from several European countries for attempting to incite racial division. The university did not invite Duke specifically, but did not bar him from the event.

Students at Dillard protested.

“People wanted me to resign” for not disinviting Duke, he said. But “I still think we did the right thing.”

Kimbrough said he’s always thinking of student safety. But you just can’t guarantee that these days, he said. (The panel was held the day after the mass shooting in Las Vegas.)

“In the world we live in, we can’t assure safety anywhere.”