College students across America have long been at the forefront of the First Amendment conversation. Campuses have frequently been the epicenter for confronting controversial issues and feeling out social discourse through oratory and protest. Accordingly, higher education institutions have historically struggled to balance the free speech rights of students against those of invited guest speakers. Currently, much of the public dialogue taking aim at the First Amendment and what constitutes protected speech is wrapped up in NFL protests and tweets from high-profile national politicians. However, here in Wisconsin, administrative crackdowns on campus protest are taking center stage in the conversation on First Amendment rights and who they are designed to protect.
To those unfamiliar with its rich history and tension with First Amendment rights, the University of WisconsinMadison is the site of the infamous Dow Chemical protests in late 1960s. UWMadison was the first major higher education institution to have an on-campus protest turn violent and deal with a multiple-day campus shutdown. In fact, throughout the 60s, UWMadison students engaged in sit-ins, walkouts, boycotts, massive rallies, and heckling on a variety of issues, from the Vietnam War to civil rights for African Americans. While each instance of protest was met with varying forms of discipline, citations, suspensions, and even arrests, UWMadison did not attempt to preemptively curb protest in any way other than continuing to discourage violent behavior.
Fast forward to 2017. UWMadison now believes that protesting is still permissible but disrupting others free speech rights through certain acts of protest is not. Where they draw the line is murky. In an uncharacteristic shift from its history of protecting broad forms of protest, in October 2017, the University of Wisconsin Board of Regents passed a policy that would require a student to be suspended or even expelled if they more than once attempt to silence a speaker or shut down an event with a disruption.While the initial 2017 policy had no further detail about what a disruption might look like, in September 2018, UWMadison released a new set of guidelines entitled the Protest Response Procedures (PRP), which address rules for campus protests that are designed to quell disruptive demonstrations that, in the schools view, ultimately stifle free speech. The idea is to better protect the free speech rights of all individuals on campus, regardless of how popular or unpopular the speech might be. As valiant as the goal sounds, the problem is that the University seems to be prioritizing speech that is likely to garner protest over a students right to protest. Both are considered protected speech under the First Amendment, so why does one result in suspension or expulsion while the other receives a shield of policy protection?
The Supreme Court of the United States has made it clear that First Amendment protection in educational settings is often a fact-specific inquiry, but vague and overbroad restrictions on speech and expression will likely be found unconstitutional. More importantly, where there are less-restrictive options available to protect whatever the asserted governmental interest in limiting speech, the government action is probably unconstitutional.1 In the 2007 Supreme Court case Morse v. Frederick, the Court found that the First Amendment did not protect a high school students right to display a banner reading Bong Hits 4 Jesus. While it was clear that students have the right to engage in political speech and protest, the Court believed that the right was outweighed by the schools mission to discourage drug use among young, impressionable high school students. Again, it was a fact-specific inquiry that largely turned on the validity of the schools reasoning in curbing the students speech that likely does not apply to college students, who are presumptively better equipped to evaluate controversial speech.
UWMadisons PRP attempt to curb student speech and expression with the sole justification that other speech ought not be disturbed. There is no specific factual justification that applies to protecting college students. The policy is also overbroad in its definition of disruption. It considers blocking the vision of others in any manner and producing noise that interferes with events and activities as forms of disruptive speech subject to the sanction of suspension or expulsion if done more than once. Setting aside the fact that the guidelines are extremely broad, arguably, there are multiple less-restrictive ways for the University to achieve its goal in protecting unpopular speech that do not include the drastic measure of expelling a student from college after two disruptions. Students around the country are challenging stricter campus speech rules and litigation surrounding protected speech is active and ongoing in the federal circuits, which often focuses on the content of the speech at issue. While UWMadison maintains that the PRP do not single out protest based on content, it seems a difficult pill for students to swallow given the fact that the PRP are only triggered when someone is protesting an event, viewpoint, or concept they might disagree with. That in itself could read as a content-based restriction.
It seems disingenuous for UWMadison to cloak the PRP under the mandate of First Amendment protection. From a constitutional perspective, the First Amendment does not require UW to protect a speaker from being shouted down or heckled nor does it require UW to prevent hecklers or other dissidents from controlling what is said on campus. As a public educational institution, UW may want to commit to the position that free discussion is of the highest importance on a college campus and, in keeping with its duty to foster that discussion, it will not allow certain types of speech to be eliminated from circulation. But to suspend or expel a student for protesting is an extreme measure. The First Amendment answer to disfavored speech is not to limit expression opposing the viewpoint, it is to encourage robust debate by making space for the speaker and the protestor.
1 Ashcroft v. ACLU, 542 U.S. 656 (2004).
Asma has been a staff attorney at the ACLU of Wisconsin since October 2017.