Recently on American higher education campuses, the U.S. Secretary of Education was shouted down during a commencement speech; a Nobel Prize winning biologist was disinvited to speak following student outrage related to his past comments linking intelligence to race; and a faculty member held his ground when his colleagues at a large religious institution purportedly questioned whether he should host a speaker whose presence would “make students feel uncomfortable.” These largely publicized incidents are just a fraction of the speaker controversies sweeping across America’s campuses. While this issue is not an entirely new one and examples can be gleaned throughout U.S. higher education’s history, they are occurring at a much more frantic and seemingly urgent rate due in part to social media campaigns and the increasing speed and breadth of online communication.
Though the topics and speakers that are labeled “controversial” may shift over the years, college campuses remain fertile ground for expression, debate, and discovery. When faced with competing interests, highly public campaigns, and the demands of an institution’s daily mission, administrators are often stuck with a juggling act. Administrators have many factors to consider when faced with speaker and protest issues, including the following overarching concerns.
Safety always comes first. Universities have a duty to plan for and respond to threats to physical safety. Most campuses already have a threat assessment team in place, and threats to disrupt a protest or speaker can often be handled under this existing review process. These teams should involve campus police or security personnel, who have expertise and experience in analyzing threats to security.
When making decisions about planned speakers or even spontaneous protests, campuses benefit from having discussed before a problem arises what constitutes a disruption, and having security and leadership prepared with a plan to intervene as appropriate. For instance: Does one insult shouted from the audience constitute a disruption? Is a march through the quad disruptive? What about a march through the library? Ideally, the institution’s response should be proportionate to the disruption. For example, one person attempting to shout down a speaker in a ticketed event could be removed without cancelling a speaker and asking the entire audience to disband. Conversely, matching speech with speech in an outdoor protest on the campus lawn may not rise to the level of a disruption to any campus activity warranting a response.
Importantly, the First Amendment requires public colleges and universities to narrowly tailor any response to speech to be content neutral and meet a compelling state interest. Case precedent is clear that protecting students and community members from unwanted speech is not compelling—-not even if the expected, or even planned, speech could be labeled as “hate speech.” And though a response must be narrowly tailored, it does not need to be the least restrictive or least-intrusive means of doing so. For example, the Supreme Court held in Ward v. Rock Against Racism, 491 US 781 (1989), that a public entity has a compelling interest in limiting excessive noise and may do so by requiring use of the entity’s speaker system in certain locations.
Colleges and Universities must also be on the lookout for developing state laws, such as Tennessee’s brand new Campus Free Speech Protection Act, which expressly bars institutions from disinviting speakers invited by students or faculty based on the anticipated nature of their speech. Other states, such as Wisconsin, are considering proposed legislation that would require universities to sanction individuals that disrupt speaking events.
In responding to demands to cancel a speaker, a university must consider its role in the speaking engagement, and is free to educate the campus community about that role. For instance, institutions can explain whether the speaker was invited by the university, by a student organization, or neither. Many campuses rent spaces out for meetings and events, and of course public campuses have public spaces where demonstrations and protests may happen spontaneously, and time, place, or manner restrictions imposed must be content neutral.
A university is also wise to consider its role when tempted to require the inclusion of opposing viewpoints. Controlling speech is not the same as expressing the University’s own views. Screening or censoring the speech of invited speakers or campus protestors is rarely defensible, but a university is free to make its own statements. Universities can be clear that presence does not mean agreement or acceptance of content, and that understanding opposing viewpoints requires listening to them as a starting point.