Universities' Speech and the First Amendment

JurisdictionUnited States,Federal
CitationVol. 99
Publication year2021

99 Nebraska L. Rev. 896. Universities' Speech and the First Amendment

Universities' Speech and the First Amendment


Kristine L. Bowman [*]


ABSTRACT

Increasingly, scholars and students alike suggest that university leaders should engage in speech to oppose racism and other systemic discrimination. In May and June of 2020, countless university leaders across the country did exactly that, expressing solidarity with the Black Lives Matter movement. That speech also contained implied answers to two questions: normatively, should a public university speak in this way, and legally, can it do so? Developing a robust answer to the second question is the focus of this Article, which brings together political scientist Corey Brettschneider's conceptualization of government speech as persuasive or coercive; federal constitutional law (forum analysis doctrine and government speech doctrine); and recent changes in state law regarding free speech at public colleges and universities.

TABLE OF CONTENTS


I. Introduction .......................................... 897


II. Government Speech: Persuasive, Coercive, or Both? . . . . 900


III. The First Amendment's Doctrinal Puzzle .............. 906
A. The Doctrine's Dominant Narratives ............... 906
1. Government as Neutral Arbiter ................ 906
2. Government as Coercive Speaker .............. 911
3. Government as Punitive Agent ................. 915
B. How the Doctrines Articulate ...................... 916


IV. Universities as Speakers .............................. 918
A. The Origins of Recent State Legislation ............ 919


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B. Forum Analysis and Public Universities' Speech . . . 922
1. Forum Analysis in Public Universities ......... 922
2. Everything Outdoors Is a Public Forum ........ 924
C. Government Speech Doctrine and University Speech ............................................ 926
1. Government Speech Doctrine in Universities . . . 926
2. Expecting Government Neutrality .............. 928
D. Persuasion, Coercion, and University Speech ....... 932


V. Conclusion ............................................ 935

I. INTRODUCTION

We often think of universities as physical places where speech happens, rather than institutions who are speakers in their own right. However, universities are both of these things, and the intersection can be messy. Campus speech controversies between 2016 and 2020 brought one aspect of this intersection into focus as universities reacted to visiting campus speakers like Richard Spencer and Milo Yiannopoulos, whose speech perpetuates systemic discrimination. In 2020, another aspect came into focus when the Black Lives Matter movement gained momentum after the killings of George Floyd, Breonna Taylor, and Ahmaud Arbery, and countless university leaders across the country issued statements expressing solidarity with the movement. Throughout this time, an increasing number of scholars and advocates have been calling for universities, as powerful, elite institutions, to speak up for the minoritized and marginalized. [1] These statements, especially when followed by action, could be considered acts of "moral leadership." [2]

The responses of university leaders in both of these situations- responses to events that occur on their campus and in the world-are important and are gaining increasing attention in literature. For example, recently, Katharine Gelber and I analyzed how and why a university's silence in the face of systemically discriminatory speech on its campus by outside speakers (such as Spencer and Yiannopoulos) accommodates discrimination, thereby enabling the harm it constitutes and seeks to cause. [3] We contended that universities have a normative obligation to refute systemic discrimination because if they do not, their silence allows the harm to occur and perpetuates injustice. [4] We further demonstrated why universities' "silence" includes both failure to acknowledge and respond to the harm-the colloquial un-

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derstanding of the term-as well as an equivocal, or limited, acknowledgement or response to the harm. [5] We concluded that universities can engage in effective counter-speech and partially mitigate the harms of systemically discriminatory speech by challenging the implied authority of the speaker and countering the harmful speech's in-egalitarian norms. Doing so, we argue, prevents the speech from disempowering its targets, and therefore, such counter-speech by university leaders is ultimately speech-enhancing. [6]

Our work dovetails both with the work of critical theorists who note that "the burdens of hateful speech are not evenly distributed" [7] and with research about the significance of bystander intervention- the idea that when those who are not direct targets of speech or action speak up, they can powerfully support the target and interrupt the harm the speech or action constitutes and seeks to cause. It also is consistent with the views of other leading First Amendment scholars such as Catherine Ross, who writes that "the harm assaultive speech [on campus] causes affects the whole community, not just the intended targets. The victims should not be expected to shoulder the additional burden of responding to speech that denigrates them." [8] Although the Dean of Berkeley Law, Erwin Chemerinsky, and University of California-Irvine Chancellor, Howard Gillman, think universities' role as speakers should be limited, lest leaders "[create] a campus orthodoxy of opinion," they also write: "Still, there are times when views so assault the campus's basic values that leaders need to speak up." [9] For both Chemerinsky [10] and Gillman, [11] the killing of George Floyd and others along with the protests in mid-2020 marked one of those times.

Given the practical importance of universities refuting systemically discriminatory speech occurring on their campuses and in the world, it is important to examine how the law aligns with the claim that universities and their leaders should speak in this way. Yet, the literature lacks a thorough analysis of the legal contours of such action. This Article fills that gap, focusing on the colleges and universities that are state actors: public institutions. In this Article, I first explore the nuanced nature of government speech, relying on political

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scientist Corey Brettschneider's theory of value democracy and his important insight that speech by the government can be persuasive or coercive. Then, I analyze and synthesize Supreme Court doctrine relevant to public space as a venue (public forum doctrine) and the government's restriction of individual speech that contradicts its own (government speech doctrine); I also consider the problem of a "chilling effect." I discuss occasions-in our lived experiences and in the black-letter law-in which government is simultaneously the neutral arbiter of a venue and a persuasive speaker in that same venue, advancing its own viewpoint. Although this is consistent with the current doctrine, jurisprudence and literature take the approach of noting that persuasive government speech is not excluded from public fora-and stop there. Rather than adopting the common refrain of "it's not prohibited," I conceptualize affirmatively how and why such speech belongs in the public forum. I thus add nuance to our understanding of First Amendment doctrine by viewing the relationship between the public forum and government speech doctrines from another angle, illuminating what was previously hidden from view.

Because it is both important and timely to understand how the law does (or does not) constrain what public universities may say in response to systemically discriminatory speech occurring on their campuses or in the world, I apply this concept to public universities, with particular attention to a wave of state legislation enacted from 2016 through mid-2020 which has sought to shape the landscape of free speech on campuses. Specifically, at least a dozen states, reacting to a purported free speech "crisis" on college and university campuses, [12] have enacted legislation that declares all public spaces on campuses to be public fora. Additionally, four state legislatures have regulated what a public university may say as a speaker, directly contradicting the core idea of government speech. By considering these two emerging themes in state law, including their intersection with federal constitutional principles and the theory of value democracy, I add significant analytical depth to the assertion that universities can use counter-speech, such as anti-racist solidarity statements, to respond to harmful speech.

Before proceeding, I note that the topic of free speech on campus is so vast that it is important to clarify what this Article addresses and what it does not. First, my focus is on speech by "the university," as exemplified through speech by senior leaders of public universities such as presidents, provosts, vice presidents, vice provosts, and deans. This speech would almost certainly be considered government speech

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under any of its various permutations if individuals were...

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