TASHJY: The First Amendment: How can so few words confuse so many?

In the wake of the recent campus protests, it seems everyone is an expert on the First Amendment.

Ken Tashjy served as General Counsel for the Massachusetts Community College System for over 21 years and currently serves as a higher education attorney and consultant. He has taught as an adjunct instructor at Suffolk University since 2008, and previously at Brandeis University as a Guberman Teaching Fellow. He received a B.A. in Psychology from Susquehanna University, an M.Ed. in Higher Education Administration from the University of Massachusetts Amherst, and his J.D. from Suffolk University Law School.  

The First Amendment of the U.S. Constitution consists of a mere 45 words, and prohibits “Congress” from, among other things, making any law “abridging the freedom of speech.” 

In the wake of the recent campus protests, it seems everyone is an expert on the First Amendment.

However, what was apparent from much of the media coverage and analysis by so-called experts and laypersons alike is that many continue to perpetuate misconceptions about free speech protections in higher education.    

Among this misinformation, commentators routinely confuse the law’s application to public institutions with private institutions, suggest that free speech and expression rights on campus are without limits, and frequently mischaracterize so-called “hate speech” as unprotected speech.  

Now, as the dust begins to settle, it is time to set the record straight and correct some of the common misconceptions about the First Amendment and free speech rights on college campuses.

Misconception #1:  Free speech rights under the First Amendment apply to both public and private institutions of higher education.

As a General Counsel for fifteen public institutions for over twenty years, I conducted numerous training sessions on free speech and expression in higher education.

During these sessions, I often asked attendees “who thinks Colin Kaepernick has a First Amendment protected right to take a knee” during the playing of our national anthem?  As you may recall, Kaepernick, a former NFL quarterback, took a knee in protest of alleged police brutality.  

Inevitably, almost everyone raised their hand assuming such was the case, which it is not.

The First Amendment does not apply to private employers, like the National Football League.  So, while Mr. Kaepernick may have had a personal right to take a knee, it was not a constitutionally protected right.  

Private employers can establish strict workplace speech rules and discipline or fire employees for violating those rules on the job. The First Amendment only protects speech from censorship by the government.

Similarly, the First Amendment does not apply to private institutions of higher education.  Let me repeat, the First Amendment and its free speech protections does not apply at Columbia, Harvard, Northwestern, Georgetown, or any other private college or university. 

[Related: Campus protests and free speech: 7 things you need to know]

At private institutions, to the extent students have any rights to engage in free speech and expression, such are derived from institutional policies, not the U.S. Constitution.  Accordingly, private institutions have greater latitude in regulating and prohibiting certain speech and conduct that may otherwise be protected at public institutions.  

On the other hand, the First Amendment prohibits the federal government from interfering with an individual’s rights of free speech and expression and extends that prohibition to state governments pursuant to the 14th Amendment.

In the context of higher education, public colleges and universities are considered the “government” and they and their employees, including faculty and administrators, are generally prohibited from infringing on free speech and expression through policy or practice.

Misconception #2:  A student’s right to peacefully protest cannot be limited or prohibited by college administrators.

While students at public institutions have a constitutionally protected right to engage in peaceful protest, or other free speech activities, those rights are not without limits. 

Higher education’s principal function is to provide a safe and secure teaching and learning environment.  If an institution fails to fulfill that fundamental responsibility, nothing else can follow; no teaching or learning, no open inquiry, debate or discussion, and no academic freedom.

Therefore, while students may have a right to peacefully protest, institutions have a right to regulate such activities based on time, place and manner in order to preserve and protect the teaching and learning environment.  

For example, during final exams, an institution may permissibly restrict protest activities to before or after exams, to a location away from exam buildings, and/or prohibit the use of loud speakers or other amplification to avoid disruption of the testing process.

[Related: Hundreds arrested and suspended: How California colleges are disciplining faculty and students over protests]

Such reasonable steps could have been taken by administrators to regulate and control the anti-Israel protests that metastasized across college campuses this spring, limiting their interference with the educational functions of institutions.  

[Related: Rutgers, Northwestern face challenge from conservatives for caving to anti-Israel students’ demands]

Alternatively, the right to engage in peaceful protest does not include setting-up unauthorized encampments, refusing to comply with reasonable directives by administrators to disband due to safety concerns, occupying and vandalizing college property, harassing or threatening others, restricting access to or through campus, or disrupting instruction and/or other institutional functions.

Violations of law and/or institutional policies masquerading as peaceful protest find no cover under the First Amendment and should have been disciplined and/or prosecuted.  

Misconception #3: Students have a constitutional right to engage in free speech and expression anywhere on campus. 

As a general rule, free speech rights must always be analyzed in light of the special characteristics of the environment where the speech is occurring.   In other words, where you speak may be just as important as what you say.

A public institution has a right to designate spaces and locations on its campus where free speech activities may occur.  These areas are referred to as “public forum” areas, and may include a campus quad, a building’s lobby, theater, or meeting rooms. 

Speech and expressive activities in a public forum area may be regulated by an institution based on time, place, and manner to ensure that the educational environment is not disrupted and to maintain campus safety and security.  

For example, while students may have had a right to peacefully protest on the grassy quad outside Columbia University’s main library as a designated public forum, Columbia’s policies could regulate the manner of that protest (i.e. no loud speakers and/or no overnight encampments permitted).  

Institutions also have a right to prohibit free speech activities in campus locations that are not designated as public forums, such as private offices or the classroom.  The negative impact on institutional operations is self-evident if protesters were permitted to enter these non-public locations.

So, while students at public institutions may have a right to free speech and expression, that right does not extend throughout campus. 

Misconception #4: “Hate speech” is unprotected speech under the First Amendment. 

There is no question that the anti-Israel chants that reverberated across college campuses were antisemitic, inflammatory, offensive, insensitive, and/or hurtful to Jewish students and others.  

Understandably, many, including politicians and students, labelled the speech as “hate speech” and demanded that institutions crack-down on those spewing such hateful rhetoric.

[Related: “Hate speech” is free speech]

However, to the surprise of many, so-called “hate speech” is protected speech under the First Amendment.  Efforts by colleges and universities to limit or prohibit offensive or hateful speech, particularly through the implementation of restrictive campus speech codes, have universally been struck down as unconstitutional on the grounds of vagueness, overbreadth, and viewpoint discrimination.

[Related: Op-Ed: There is no room for ‘privileging feelings’ in the marketplace of ideas]

When confronted with efforts by the government to ban or criminalize hateful speech, the U.S. Supreme Court has been clear in affirming the U.S. Constitution’s protection of it.  

Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate. 

While hateful or offensive speech is protected and public institutions may not prohibit or discipline such speech, those who spew hateful rhetoric are not protected from criticism, ridicule, or being held to account for their words by others.  

This lesson was learned all too well at Harvard University, when a number of prominent business executives agreed to blackball members of 34 student organizations who had signed a letter blaming Israel for Hamas’ deadly attacks.  

While their speech may have been free, it was not free of consequences.

It is also important to recognize the distinction between protected speech, which can include offensive or hateful rhetoric, and speech or conduct that is not protected under the First Amendment, including threats, intimidation, discrimination, harassment, incitement of imminent violence, or vandalism.      

Under no circumstances should College administrators tolerate such behavior under the pretense of free speech or expression.

[Related: PSYCHO: Masked pro-Hamas activists show up at UMich regents’ homes in middle of the night, lay ‘fake corpses’ on lawn]

In the aftermath of the campus protests, it is incumbent on all of us to preserve and protect free speech and expression, especially in higher education, where respectful debate and discussion is needed more than ever.   

A good start would be to reeducate administrators, faculty and students on the workings of the First Amendment and the actual protections it affords.      

Editorials and op-eds reflect the opinion of the authors and not necessarily that of Campus Reform or the Leadership Institute.