Pro-life speech is protected under the First Amendment and cannot be restricted on public campuses. Here is what you should know about free speech.
Many Americans think the First Amendment should be rewritten.
The Campaign for Free Speech, a nonpartisan thinktank, released a 10-question survey with various inquiries about the First Amendment. First Liberty noted three surprising results:
51% of respondents reported that they thought the First Amendment was outdated and should be rewritten
48% reported that they believed “hate speech” should be illegal. Of this 48%, 54% believed the penalty for “hate speech” should be jail time.
79% of respondents marked this sentence: “The constitution preserves the right to free speech. The First Amendment allows anyone to say their opinion no matter what, and they are protected by law from any consequences of saying those thoughts or opinions.” as TRUE – when in reality, it is false.
The First Amendment does not, by law, protect you from the social or cultural consequences of your speech – but it does protect you from governmental force or discrimination as well as violence from anyone due to your speech.
SOURCE: https://firstliberty.org/news/first-amendment-outdated/
What does free speech include?
When the government targets speech in a way that discriminates against it on the basis of its message (excluding what the Court has held are “fighting words” or vernacular containing criminal threats), this is unconstitutional.
SOURCE: https://constitutioncenter.org/interactive-constitution/interpretation/amendment-i/interps/266
When can speech be restricted?
All restrictions to free speech must be content neutral. This means speech cannot be restricted based on the substance or message of your speech, but must apply to all forms of speech expression.
SOURCE: https://constitutioncenter.org/interactive-constitution/interpretation/amendment-i/interps/266
Time, place, and manner restrictions to free speech.
This means: implementing reasonable noise-level restrictions, immediate safety precautions.
This does not mean: controversial subjects, dramatic symbolic speech, nor so-called hate speech.
SOURCES:
- Ward v. Rock Against Racism: https://www.oyez.org/cases/1988/88-226
- Reed v. Town of Gilbert https://www.oyez.org/cases/2014/13-502
- S. v. O’Brien https://supreme.justia.com/cases/federal/us/409/1/#tab-opinion-1949873
What your public school CANNOT do:
Your school cannot prevent you from starting a group just because its religious, political, controversial, or upsetting.
Widmar v. Vincent (1981)
The Supreme Court ruled public universities could not reject the officiation of a student group which is religious in nature. Students establishing a group of this affiliation were not violating the Establishment Clause of the First Amendment – the statute the university justified its rejection upon.
The opposing side argued that the officiation and room reservations of a religious group on the University of Missouri (KC)’s campus was unconstitutional as it established religion at the college. The Supreme Court rejected this argument and sided with the Christian students arguing their free speech and public forum rights had been violated.
A public university’s open spaces are open to all, and a school cannot discriminate against the reservations of a particular group simply because of the group’s mission. Furthermore, they cannot reject the establishment of a group because of the group’s mission.
A Public University is a Public forum – A Christian group sought reservations of a hall on campus for 2.5 hours per week. When alerted of what the room would be used for within these time frames, the university rejected their request. The Supreme Court struck down this determination.
SOURCES:
- https://www.oyez.org/cases/1981/80-689
- https://www.freedomforuminstitute.org/first-amendment-center/topics/freedom-of-speech-2/free-speech-on-public-college-campuses-overview/student-fees-clubs/
Schools cannot alter the presentation of your message, like using trigger warnings.
Trigger warnings defined as: “written warnings to alert students in advance that material assigned in a course might be upsetting or offensive.”
National Coalition Against Censorship conducted a large survey in the Modern Language Association and College Art Association of college/university educators:
1% of colleges and universities have instituted trigger warning policies
5% of those surveyed reported that students had took proactive steps on campus to get the administration to impose trigger warning requirements for speech
12% reported that they had experienced students complain about a lack of trigger warnings at their school
62% of responding educators think triggers warnings have had and/or will have a negative effect on academic freedom
Only 17% of respondents reported that they felt trigger warnings could bring a positive effect to campuses
SOURCE: https://ncac.org/resource/ncac-report-whats-all-this-about-trigger-warnings
An abortion debate was shut down at Oxford due to potentially triggering aspects of the debate an speakers.
Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, Inc.
Parade organizers held a St. Patrick’s Day parade each year, and on a particular year, the IAGLBGBI wanted to march. The city ordered the parade organizers to include the IAGLBGBI on grounds against discrimination as it pertains to sexual orientation. The parade organizers sued, and the Supreme Court sided with them.
The Court argued that the intention of the organizers was not to discriminate against LGBT individuals, rather their message. Thus, their exclusion of the gay float did not violate discrimination law, it was merely attributed to their free speech rights in not having their expressive message forcibly altered by government intrusion.
SOURCES:
- http://www.oxfordstudent.com/2014/11/20/abortion-debate-cancelled/
- https://www.oyez.org/cases/1994/94-749
- http://law2.wlu.edu/deptimages/Law%20Review/66-4DavisNote.pdf
Schools cannot create free speech zones outside.
New Mexico State: Rudolph v. Archuleta (2000)
University had a mere three small areas permitted free speech where generally, very few people populated or passed through (policy established in 1980s). A student was distributing leaflets criticizing this policy in an area outside of the three designated zones and was arrested. The ACLU filed suit on his behalf, arguing these zones suppressed speech. The University changed its policy, allowing free speech – even containing criticism – in any outdoor area on campus was permitted.
West Virginia University: Free Speech Coalition of WVU v. Hardesty (2002)
Free Speech Coalition of WVU v. Hardesty (2002) – Free Speech Coalition collection student groups sued their school over its policy allowing for two free speech zones.
Prior steps to resolve the issue involved student and professor protests and the University upping their amount of zones from two to seven. These seven constituted 5% of the campus’ land. The University eventually relented and abandoned the policy.
Texas Tech University Law School: Roberts v. Haragan
A student who wanted to distribute literature on his religious views as it pertained to marriage was isolated to one free speech gazebo. He sued and the University attempted to mitigate the conflict with additional free speech zones. It was unconstitutional, a federal district court said, for the University to require extra permission to speak freely outside of the designated zones.
This violates something called the Lemon Test, a legal assessment established in the Supreme Court case of Lemon v. Kurtzman, over questions of whether or not a law violates the establishment clause of the first Amendment (freedom of religion, primarily).
The free speech zones violated all three prongs of the Lemon Test:
- It did not fulfill a secular policy – it infringed upon religious thought, rather than treating it neutrally.
- It did not carry a primary effectiveness – there was no legitimate interest to the University, nor the government (which funded the University).
- It violated entanglement requirements – in that it was very broad and would take excessive governmental intrusion to regulate.
University of Cincinnati: UC Chapter of YAL V. Williams
Students in this group were not allowed to distribute pamphlets all around campus to progress a ballot initiative. The University threatened arrest if the policy was not adhered to. Due to the lack of foot traffic in the free speech zone’s vicinity, the club gathered a mere six signatures. The zone comprised of less than 0.1% of the campus’ property.
The policy failed strict scrutiny – another legal test created as a result of Supreme Court precedents. The zone rules did not have a legitimate government interest, nor a narrowly-tailored method to achieve said government interest.
Faculty and staff cannot be fired for sponsoring a pro-life group.
Gulf Coast High School’s SFLA affiliate “Sharks for Life” was indefinitely deemed unrecognized by the public school district’s student organization pool. ADF Counsel Michael Ross wrote the school a letter, addressed to the school board, superintendent, and assistant principle. In the letter, verbal testimony of two faculty members being threatened with termination by the assistant principal for their potential advising was documented, and a demand for the group to be recognized was also included.
The assistant principal involved made the argument that the issue ought not to be discussed at all in a high school, and claimed that the first flyer Sharks for Life designed was “too political and controversial” — despite the word “abortion” not being on it once.
ADF Counsel Ross also cited the 9th Circuit Court of Appeals ruling in Prince v. Jacoby:
High schooler Tausha Prince’s Bible club was only recognized as a Policy 5525 Club instead of an Associated Student Body organization – limiting her benefits and resources as a club. The school argued her club’s aim violated their Act used to determine which clubs receive ASB status. One of these is forcing students to partake in religious activity. The school claimed Prince’s group did this and violated the Establishment Clause of the 1st Amendment as well. The 9th Circuit sided with Prince.
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- The Equal Access Act “guarantees public secondary school students the right to participate voluntarily in extracurricular groups dedicated to religious, political, or philosophical expressive activity protected by the First Amendment when other student groups are given this right.”
- There are standards schools have to meet to be protected under the EAA, including 1) public status, 2) receiving of federal funding, 3) establishment of a “limited public forum” where the school allows other non-curriculum (special interest) groups operate under a privileged status. Gulf Coast High School fits all three of these, having almost 80 special interest clubs
SOURCE: https://caselaw.findlaw.com/us-9th-circuit/1161168.html
Student government cannot deny you student fees because they disagree with the viewpoint of your speaker or the event.
Rosenberger v. Rector and Visitors of the University of Virginia (1995)
The student at UVA, Mr. Rosenberger, requested $5,800 from his university’s student organization budget to fund a Christian magazine. The University refused, reasoning solely that it “primarily promotes or manifests a particular belief in or about a deity or an ultimate reality.” This was against University policy.
The Supreme Court sided with Rosenberger in that the University’s refusal placed a financial burden on his free speech – Christian compositions – and amounted to intellectual discrimination.
SOURCE: https://www.oyez.org/cases/1994/94-329
Schools cannot reject your group’s room reservations when said rooms are available, while permitting other groups whose messages adhere to university values to do so.
Widmar v. Vincent (1981) [see “Public Forum”]
SOURCE: https://www.oyez.org/cases/1981/80-689
Schools cannot charge unreasonably high security fees for speakers, regardless of how controversial they perceive said speakers to be.
Forsyth County, Georgia v. The Nationalist Movement
The Board of Commissions for this county enacted a maximum fee of $1,000 in order for an organization to host a public activity (parade, protest, etc.) — but also allowed for the county to charge a varied cost depending on how expensive they anticipated it’d be to “maintain public order.”
A Neo Nazi group applied for a permit to stage a protest on the Cumming courthouse steps to express grievance about MLK Jr. Day. The county charged the group $100 for the permit and added on exorbitant amounts for the sake of security. The Neo Nazis sued and won.
Charging $1,000 for a permit or enacting a law which plans to charge this amount, does not have a clear justification and would force governmental entities to assess the content of the speech and make a monetary determination from its judgement. This facilitates discrimination on the grounds of controversiality – which regulates speech. This, therefore, is unconstitutional.
SOURCE: https://www.oyez.org/cases/1991/91-538
What your RIGHTS are:
You have a right to form a student group if other students are able to form student groups.
The Equal Access Act (EAA) passed by Congress in 1984 and upheld by SCOTUS in 1990, declares it is “unlawful for any public secondary school that receives federal funds and which has a limited open forum to deny equal access or a fair opportunity to, or discriminate against, any students who wish to conduct a meeting within that limited open forum on the basis of the religious, political, philosophical, or other content of the speech at such meetings.”
Defining “limited open forum”: this is created whenever a public secondary school opens space to non-curriculum- related groups, only during non-class periods.
E.g. If I wanted to schedule Anthony Levatino for my SFL chapter, I would not have the right to demand a classroom during the hours an Economics course is scheduled (instructional time).
Students have a right to equal access to funding as any other group.
Rosenberger v. Rector and Visitors of the University of Virginia (1995)
SOURCE: https://www.oyez.org/cases/1994/94-329
Students have a right to know where and how your student fees are being spent.
Integrated Post-Secondary Education Data System (IPEDS)
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- The Department of Education uses the Integrated Post-Secondary Education Data System (IPEDS) to publish the purchases and transactions of any schools who receive federal funding. As this is public information – much like university professors’ political donations (FEC), all citizens, including college students, have a right to view this and question it.
Institutions are not permitted to use student fees for activities external to the organization (implies that students have the right to know if this is illegally occurring)
SOURCES:
- https://www.jamesgmartin.center/2019/10/without-financial-transparency-colleges-mislabel-research-spending-as-instructional/
- https://nces.ed.gov/ipeds/
- https://casetext.com/case/van-stry-v-state
Students have a right to insist on a written explanation as to why the school took an action against a group.
Esteban v. Central Missouri State College
Esteban was put on disciplinary probation and subsequently scholastic probation due to student demonstrations he partook in considered to be “riots” and “disturbances” by the college. He was orally made aware of his charges, but the Court determined that the remarks accusing Esteban of profane language in response to him being read his charges was hearsay and therefore inadmissible. Furthermore, a mere spoken notice of Esteban’s charges violated due process, the Court determine that the potential for legal ramifications by a university onto a student must be written. From this ruling, the Court determined that students have due process guarantees, and these must be established and manifested before any student is suspended for any reason.
SOURCE: https://law.justia.com/cases/federal/district-courts/FSupp/277/649/1868787/
Students have a right to have the school help an find an advisor if that is a requirement for starting a group.
- See “Gulf Coast High School” section
Students have a right to have any vandalism or violence against them or their event/group investigated by the school.
Do you think your free speech has been violated? Let us know! Email legalhelp@studentsforlife.org.