First Amendment on the - PowerPoint Presentation

Slide1

First

Amendment on the College Campus

Neal HutchensPenn State University

From Jan. 22

nd Editorial in Daily Collegian

“. . . Punishing

students who outwardly slander races, religions, or other cultural groups should be within the rights of a

university.

A college’s main priority ought to be the support and facilitation of a civil, respectful education for all its students. and students who create hostile environments for others at the university do nothing to benefit the academic culture

.

Harassment

is just that; it has no place in a scholastic setting. Providing a safe, conducive learning environment for all students is the duty of universities, and that should not be sacrificed in the name of respecting intolerance

.”

Full

editorial available at http://

www.collegian.psu.edu

/opinion/editorials/article_2e567dc4-c0be-11e5-879e-f3f4b53c6dbf.html

First Amendment on Campus

Sup. Ct. decisions establish public

college students possess 1st Amend. speech rights (e.g., Healy v. James, 1972)Students do not shed rights at “schoolhouse gate” But, importance of context and content:Enhanced authority, e.g., in curricular contexts (see Axson-Flynn v. Johnson, 2004) or threating or harassing speech targeted at specific individuals (but not generalized “hate speech”) In contrast, independent student speech outside of class environment often receives substantial protection

Traditional Public Forum

The Hazy Middle

Designated Limited/Designated Unlimited (Bowman)True Designated/Designated Limited (Smith)Non-public Forum

Open Campus Areas and Forum Analysis

Background Picture: where it all began—

digital recreation of original forum in Rome

The Big ‘?’: Standards for Open Areas

Time,

P

lace

, and Manner restrictions:content-neutral(b) narrowly tailored to serve significant govt. interest (c) ample alternative channels of communicationContent based restrictions must survive strict scrutiny————————OR————————Viewpoint neutrality and any restrictions must be reasonable in light of purpose served by forum

University argued campus area constituted limited public forum where requirements such as prior notice permissible

Preliminary injunction granted to students

Case in Point:

Restrictions on

open campus areas

limited demonstrations, picketing, and rallies to small areaGroups of students required to give at least 5 days notice before engaging in speech activities

Univ. of Cincinnati Chapt. of Young Am. for Liberty v. Williams

McMicken

Commons at University of Cincinnati

Beyond Legal Analysis

Beyond Legal Analysis (

cont

.)

Consider Policies,

Plans

in

Advance

Bring

campus actors together

Active

monitoring,

including through social

media

Keep

in mind what must do—First Amendment not

voluntary

What can do isn’t always what should do

Role

of Institutional m

ission

,

values

Opportunities for

dialogue

Employ

campus

p

olice

c

arefully (pizza

before

pepper

s

pray)

N

egative

consequences, especially

for vulnerable

populations

Best

response

to

speech often more speech (silence is a response!)

S

upport systems such

as from m

ulticultural

c

enters,

campus leaders

QUESTIONS, COMMENTS

References

Axson

-Flynn v. Johnson,

356 F.3d 1277 (10th Cir. 2004).

Bowman

v.

White

, 444 F.3d 967 (

8th Cir. 2006).

Healy v. James

, 408 U.S. 169 (1972).

Justice for All v.

Faulkner

, 410 F.3d 760

(5th Cir. 2005

)

OSU Student Alliance v. Ray

, 699 F.3d 1053 (9th Cir. 2012).

Smith

v. Tarrant County Coll.

Dist

., 694 F. Supp. 2d 610 (

N.D. Tex.

2010).

Univ. of Cincinnati Chapter of Young Am. v. Williams

,

No. 1:12-CV-

155, 2012 WL 2160969, (S.D. Ohio 2012).