By now most institutions are aware of recent activity surrounding the scrutiny of colleges’ and universities’ protection of First Amendment rights and new laws expanding the obligations of public institutions to allow free expression on their campuses.
The Foundation for Individual Rights in Education (“FIRE”) recently rated the speech code policies of 437 schools based on the level of restriction of free speech on each campus. FIRE assigned “red light,” “yellow light” or “green light” status to each school. In connection with the FIRE report, Congressman Bob Goodlatte, chairman of the House Committee on the Judiciary, sent a letter to 160 public universities for whom FIRE had assigned “red light” status, meaning their policies were considered the most egregious in restricting First Amendment freedoms. The congressman asked these institutions to provide information as to what steps they plan to take to promote free and open expression on campus, including bringing speech policies “in accordance with the First Amendment.” If you received Congressman Goodlatte’s letter and have not yet responded, we encourage you to do so immediately.
In addition to the attention schools are receiving from organizations like FIRE and now Congress, many states are joining in the effort. In Missouri, for example, Gov. Jay Nixon recently signed into law Senate Bill 93, known as the “Campus Free Expression Act.” The Act prohibits Missouri public colleges and universities from restricting speech to designated “free speech zones.” Instead, any open outdoor area of a public campus is considered a “traditional public forum” and any “noncommercial expressive activity” is permissible so long as the activity is “not unlawful and does not materially and substantially disrupt the institution’s functioning.” Institutions may enforce reasonable time, place, and manner restrictions, but must have a “significant institutional interest” in doing so. The Act creates a right of action for compensatory damages, court costs and attorney fees, with violations carrying a fine of at least $500 for the first violation, and $50 per day until remedied. This law went into effect August 28, 2015.
If your public institution did not receive the letter from Congress, FIRE may not have reviewed your school’s policies, or it may have done so and found the policies acceptable under their standards (“green light”). Of course, private institutions are not required to provide such First Amendment protections and would not have received the letter. Nevertheless, we urge all colleges and universities (public or private) to be on the lookout for activity in this area. Consider reviewing your policies related to speech, assembly, conduct codes, social media, bullying, and harassment to ensure you are not running afoul of the First Amendment.