Public Universities and the First Amendment: Controversial Speakers, Protests, and Free Speech Policies

• Author: Eric T. Kasper
• Position: Associate Professor of Political Science and Director of the Center for Constitutional Studies, University of Wisconsin-Eau Claire; Municipal Judge, City of Rice Lake, Wisconsin; J.D., University of Wisconsin Law School, 2007; Ph.D., University of Wisconsin-Madison, 2007
• Pages: 39-94

PUBLIC UNIVERSITIES AND THE FIRST AMENDMENT:

CONTROVERSIAL SPEAKERS, PROTESTS , AND FREE SPEECH

POLICIES

ERIC T. KASPER*

I. INTRODUCTION

In recent years, several high-profile cases of controversial speakers at

public colleges and universities

1

have resulted in protests of those speakers.

For example, at the University of Wisconsin-Madison, student protestors in

November 2016 took to the front of a classroom and began chanting,

temporarily halting a scheduled speech by Daily Wire founder, and former

Breitbart News editor, Ben Shapiro.

2

Similar disruptions occurred in 2018

at multiple events where speakers were invited to campuses by student

chapters of the Federalist Society, including speeches by John Blackman at

the City University of New York and Christina Hoff Sommers at Lewis

and Clark College.

3

In some cases, the protests have turned violent, such

as the now famous case of protestors at the University of California-

Berkeley lighting fires, tossing Molotov cocktails, and throwing fireworks

at police officers in response to a speech planned by former Breitbart News

editor Milo Yiannopoulos in February 2017.

4

Similarly, some

Copyright © 2019, Eric T. Kasper.

* Associate Professor of Political Science and Director of t he Center for Constitutional

Studies, University of Wisconsin-Eau Claire; Municipal Judge, City of Rice Lake,

Wisconsin; J.D., University of Wisconsin Law School, 2007; Ph.D., University of

Wisconsin-Madison, 2007.

1

Hereafter, this article will frequently refer to “public universities,” but those remarks

will generally apply to any public institutions of higher education, including public

community colleges.

2

Pat Schneider, Fighting Words: The Campus Free Speech Battle at UW Often Focuses

on Guest Speakers, CAP. TIMES (Apr. 5, 2017), http://host.madison.com/ct/news/local/

education/university/fighting-words-the-campus-free-speech-battle-at-uw-often/artic le_ 31f

9abea-78d3-5211-b41c-7ba535a87abf.html [https://perma.cc/6NH5-FWVH].

3

See Scott Jaschik, Guest Lecture on Free Speech at CUNY Law School Heckled,

INSIDE HIGHER ED ( Apr. 16, 2018, 3:00 AM), https://www.insidehighered.com/

news/2018/04/16/guest-lecture-free-speech-cuny-law-school-heckled [https://perma.cc/4H9

7-FVCB]; Scott Jaschik, Students Interrupt Several Portions of Speech by Christina Hoff

Sommers, INSIDE HIGHER ED (Mar. 6, 2018, 3:00 AM), https:/www.inside highered.com/ne

ws/2018/03/06/students-interrupt-several-portions-speech-christina-hoff-so mmers [https://p

erma.cc/KQ3P-T7NQ].

4

Anonymous, Violent Protests by Visiting Mob Lead Berkeley to Cancel Speech by

Milo Yiannopoulos, INSIDE HIGHER ED (Feb. 2, 2017, 1:13 AM), https://www.insidehigher

(continued)

530 CAPITAL UNIVERSITY LAW REVIEW [47:529

demonstrators caused injuries when protests turned violent at the

conclusion of The Bell Curve author Charles Murray’s speech at

Middlebury College in March 2017.

5

Although it did not involve violence,

student protestors disrupted a planned talk by Blackwater security

company founder Erik Prince at Beloit College in March 2019 with the use

of a drumline and by piling chairs on the stage; this led to the college

cancelling the lecture.

6

In still other cases, planned or expected protests

resulted in the controversial speakers being disinvited. This includes the

University of California-Davis disinviting both Yiannopoulos and former

Turing Pharmaceuticals CEO Martin Shkreli in early 2017,

7

as well as the

University of Central Oklahoma cancelling the speech of Creation

Museum founder Ken Ham in February 2018.

8

A speech scheduled for

conservative commentator and author Ann Coulter was cancelled at the

University of California-Berkeley in April 2017, although it is not entirely

clear if Coulter or the university cancelled the event.

9

Finally, some

speakers have contemplated voluntarily withdrawing from their planned

speeches, such as when white nationalist Richard Spencer considered

ending his speaking tour of college campuses in the spring of 2018, partly

in response to the significant protesting that accompanied his events.

10

There is little evidence that these examples are representative of the

behavior of university students generally at public speeches and similar

ed.com/news/2017/02/02/violent-protests- visiting-mob-lead-berkeley-cancel-speech-milo-

yiannopoulos [https://perma.cc/2BA6-DRLZ].

5

Stephanie Saul, Dozens of Middlebury Students Are Disciplined for Charles Murray

Protest, N.Y. TIMES (May 24, 2017), https://www.nytimes.com/2017/05/24/us/middlebury-

college-charles-murray-bell-curve.html [https://perma.cc/LP8E-MQGF].

6

Jeremy Bauer-Wolf, Another Speaker Shut Down, INSIDE HIGHER ED (Mar. 29, 2019),

https://www.insidehighered.com/news/2019/03/29/beloit-cancels-erik-prince-talk-after-stud

ent-protests [https://perma.cc/3XBE-ECBV].

7

Jeremy Bauer-Wolf, College Administrators: No Easy Answers for Controversial

Speakers, INSIDE HIGHER ED (Nov. 14, 2017, 3:00 AM), https://www.insidehighered.com/

news/2017/11/14/college-administrators-no-easy-answers-controversial-speakers [https://pe

rma.cc/BH3F-H4U7].

8

Adam K ealoha Causey, Creationist’s Speech Canceled at University in Oklahoma,

FOX NEWS (Feb. 8, 2018), http://www.foxnews.com/us/2018/02/08/creationists-speech-

canceled-at-university-in-oklahoma.html [https://perma.cc/KB8S-CE3E].

9

Merrit Kennedy, After Back-And-Forth, Ann Coulter Speech Is Off at UC Berkeley,

NPR (Apr. 26, 2017, 4:44 PM), https://www.npr.org/sections/thetwo-way/2017/

04/26/525745159/after-back-and-forth-ann-coulter-speech-is-off-at-uc-berkeley [https:/per

ma.cc/9GMD-C3ME].

10

Ryan Lenz, Richard Spencer Cancels Speaking Tour of College Campuses After

Speech in Michigan, S. POVERTY L. CTR. (Mar. 12, 2018), https://www.splcenter.org/

hatewatch/2018/03/12/richard-spencer-cancels-speaking-tour-college-campuses-after-speec

h-michigan [https://perma.cc/ZE4T-TSXK].

2019] PUBLIC UNIVERSITIES AND THE FIRST AMENDMENT 531

events.

11

Nevertheless, they are instances where speakers have been

prevented (or claim to have been prevented) from expressing their ideas to

some degree in particular public venues. Remedies to these campus

incidents have occurred in various forms. In some cases where planned

speeches were disrupted, individual universities have conducted

investigations or punished offending students.

12

At the national level,

President Donald Trump issued an executive order in 2019 that directed

U.S. government agencies to ensure that universities receiving federal

funding are protecting “free inquiry” on their campuses.

13

In what may

ultimately prove t o be the most far-reaching response to these types of

cases, in 2017 the Goldwater Institute produced model state legislation

titled the “Campus Free Speech Act.”

14

According to the drafters of the

model policy, the asserted purposes of the Campus Free Speech Act are to,

among other things, promote the creation of university policies supportive

of the freedom of expression, prevent campus administrators from

disinviting controversial speakers, propose potential sanctions for students

who harm the free speech rights of others, and ensure that students will be

informed of official policy on the freedom of expression.

15

As will be

explored below, the model legislation goes beyond the issue of

controversial invited speakers to dictate governmental action as it relates to

other First Amendment concerns, such as the creation of “free speech

zones” and student organizational recognition.

16

Several states have

already enacted a derivation of the Campus Free Speech Act, or a

comparable law with the asserted goal of protecting the freedom of

11

See Mari Uyehara, The Free Speech Grifters, GQ (Mar. 19, 2018),

https://www.gq.com/story/free-speech-grifting [https://perma.cc/3RKH-UXQW]; Kelly

Wilz, The Myth Of The Liberal Campus, HUFFPOST (Feb. 27, 2017), https://www.

huffpost.com/entry/the-myth-of-the-liberal-campus_b_58b1bc00e4b02f3f81e44812 [https://

perma.cc/KEX3-Z3H8].

12

See Bauer-Wolf, supra note 6; Nell Gluckman, Middlebury Punishes 67 Students for

Charles Murray Protest, CHRONICLE OF HIGHER EDUCATION (May 23, 2017), https://www.

chronicle.com/blogs/ticker/middlebury-punishes-67-students-for-charles-murray-protest/11

8607 [https://perma.cc/SVJ6-VR95].

13

Maggie Haberman & Michael D. Shear, Trump Signs Executive Order Protecting

Free Speech on College Campuses, N.Y. TIMES (Mar. 21, 2019), https://www.nytimes.com/

2019/03/21/us/politics/trump-free-speech-executive-order.html [https://perma.cc/72XZ-5N

VF]

14

See Campus Free Speech Act, GOLDWATER INST. (2017), https://drive.google.com/

file/d/1wUs1BV7EVS4rbG-3UBFxsm5ZSlRIFa36/view [https://perma.cc/ZZ3J-32JF].

15

See Stanley Kurtz et al., Campus Free Speech: A Legislative Proposal, GOLDWATER

INST. 3 (2017), https://drive.google.com/file/d/1BKyHPKHS_xVg3hGxqjhNIpRVQqoV

6Xyg/view [https://perma.cc/4UTW-NVMJ].

16

Id. at 3, 6, 10, 12.