The First Amendment on College Campuses: What You Need to Know

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

The First Amendment to the United States Constitution was ratified on December 15, 1791. Today, more than 230 years later, interpretation of the law is still evolving as a new generation of students seek more protections on college campuses. 

Jeff Wakeman (He/Him), director of student development at Stockton University, helped ACUI members take a deep dive into these intricacies during a recent ACUI webinar.

“The First Amendment is more than free speech,” said Wakeman, who has spent much of his career advocating for student rights and working directly with student First Amendment and student funding rights. “Related rights include freedom of exercise of religion, establishment clause, freedom of assembly, and freedom to redress the government — it’s nuanced, and this is where the debates begin.”

Wakeman also noted that not all speech is free: incitement, defamation, fraud, obscenity, child porn, fighting words, and threats have all been defined in court cases as beyond the scope of protection. This begs the question: what is considered a permissible restriction to the First Amendment on college campuses?

According to the American Civil Liberties Union, “time, place, and manner” regulations can be imposed as a legitimate restriction on some protected space. “This is most commonly done by requiring permits for meetings, rallies, and demonstrations,” the ACLU website reads. “But a permit cannot be unreasonably withheld, nor can it be denied based on content of the speech.”

Case law defines what the government — or a public university — can and cannot do in traditional public forums (i.e., the lawn in from of a university building, limited public forums (a classroom), and nonpublic forums (an office). A campus can have rules about time, place, and manner, and it can enforce them. For example, a university can close or have quiet hours, direct people not to use a classroom during a class period, and prohibit amplified sound near classes.

At the same time, American campuses must avoid the heckler’s veto — a scenario in which a party who disagrees with the speaker’s message triggers events in which the speaker is silenced. “The crowd’s reaction makes the person who has the First Amendment rights lose their First Amendment rights because they’re silenced,” he explained. “We can’t allow that to happen.”

Courts have ruled against government groups that allow for the heckler’s veto. One is Forsyth County, Georgia v. The Nationalist Movement, a case where the United States Supreme Court limited a local government’s ability to charge demonstrators fees for using public places. “We can prepare — we just can’t pass that preparation onto speakers based on their message,” Wakeman said.

Stockton’s Demonstration Action Response Team (DART)

Among other rules, Stockton University’s procedure for the use of university property includes a clause on spontaneous demonstrations or activities, which are “permitted on university property unless the demonstration or activity presents an unsafe environment of disruption to the university’s operation or academic mission.”

The university’s Demonstration Action Response Team (DART) assists in maintaining safe environments while balancing the right to freedom of expression with the university’s business. The team also provides education on the parameters of freedom of expression and campus regulations, works closely with demonstrators, and serves in an advisory capacity before and during events.

“As a general concept at Stockton, the more you plan, the more rights you have on campus, and the business of the university and academic classes take priority over other activities,” Wakeman said. “This is where DART comes into play because DART team members make sure that what the students are planning or what the group is planning won’t impact academic classes or other activities.”

Stockton’s DART team comprises student affairs, faculty, and public safety professionals trained in crowd management, de-escalation techniques, First Amendment rights, campus regulations, and safety protocols.

DART works closely with campus police during event planning and on-site, but their roles differ. While campus police are available to address safety and legal issues, the DART team is responsible for negotiating and planning to ensure events occur smoothly and safely and strike a balance between the needs of demonstrators and those of the campus community.

“The DART team’s goal is often to minimize disruption while allowing for speech that is disturbing, loud, and unpopular because expression is what we want,” Wakeman said. “Political action is sometimes in our mission statements. But then we run into concerning activity and disruption, and that’s where we must be on the same page.”

After an event is complete, DART collects information to help aid in future planning. “One of the most important things we do complete post-event reports and use them for training the DART team, the campus police, and everyone else on how we protect and react when we have a spontaneous demonstration,” Wakeman said.