Are Public Universities Protecting Students' First Amendment Rights?

By Sarah Warren on November 13, 2016

The first amendment states, “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.” Though multifaceted, the amendment’s focus is on the American people’s right to the freedom of expression. We are allowed to worship who we want and how we want, express any ideas we  have no matter how controversial, and peacefully protest decisions or persons with which/whom we disagree, provided we do not infringe on the liberties of another person.

For example, someone is within their first amendment rights if they give a speech protesting an organization or stand outside public property holding signs, handing out leaflets, etc. Someone is outside of their first amendment rights if they obstruct traffic without informing law enforcement so that a detour may be arranged or if they loudly protest near a building with classes going on. A handy guide outlining students’ rights to protest on campus may be found here.

The violation of first amendment rights comes when an institution restricts or limits students’ ability to worship, express their thoughts publicly, or peacefully protest. Pinpointing such a violation can be tricky – particularly when most universities have vague policies like ”engaging in any offensive, obscene or abusive language, or in boisterous or noisy conduct reasonably tending to arouse alarm, resentment, or anger in others,” (Source.) While a public institution is perfectly within its rights to disavow conduct in such terms and to prosecute perpetrators of conduct that violates the rights of a student, blanket bans on offensive language can be problematic because offense is subjective. Of course, there are cases where offensive intent is obvious, such as slurs and threats of any kind, and if a student ever feels that his or her right to life, liberty, or property is in danger, he or she should contact authorities immediately. If, however, a student finds another student’s viewpoint – and, we assume, the language they used to express this viewpoint – offensive, the student has no constitutional grounds to silence this viewpoint.

According to the Supreme Court in Texas v. Johnson, “if there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. Texas v. Johnson even held that flag burning is within a citizen’s rights so long as it is for the purpose of ideological expression and not to destroy property or endanger citizens. As American citizens, the desecration of our flag should make us cringe. We are entirely within our rights to support or condemn such actions so long as we recognize that the flag burner is within his rights. The same principle applies for unsavory viewpoints. Two people, one with influence and one without, may fundamentally disagree with each other on an issue and be within their rights. They may attempt to silence each other through logic, evidence, and crowd support and be entirely within their rights. When, however, the person in power attempts to deprive the person without power of their ability to express their opposing viewpoint, he is depriving them of their first amendment rights.

The issue of power here is key – anyone can attempt to silence anyone and when there is a balance of power, this is usually not an issue. When one side has the influence to tip the scales against another and does so, then constitutional rights are infringed upon. Obviously, in the case of universities, the balance of power is shifted in favor of the institution – as it should be. Students have a voice via their right to peaceful protest and student government associations. The question, then, is how do universities simultaneously disavow behavior that shocks the human conscience and protect students’ first amendment rights?

Heterodox University, “a politically diverse group of social scientists, natural scientists, humanists, and other scholars who want to improve our academic disciplines and universities,” suggests universities adopt some version of the following First Amendment Rights Protection Code:

“At [your school’s name], we know that exposure to diversity broadens our minds and prepares us for citizenship in a diverse democratic society. Research shows that the kind of diversity that most improves the quality and creativity of thinking is viewpoint diversity. When everyone thinks alike, there is a danger of groupthink, prejudice, dogmatism, and orthodoxy. People in the majority benefit from interacting with individuals who see things differently.

“At a time when American democracy is polarizing into antagonistic camps and informational bubbles, many colleges and universities are becoming more intellectually and politically homogeneous. Orthodoxies arise, dissent is punished, and quality declines. We do not want that to happen in our community.

“We therefore welcome heterodoxy, meaning that we want to support those within our community who hold dissenting or minority viewpoints; we want them to express themselves freely and without fear. We value viewpoint diversity not merely out of compassion for those in the minority but also because such diversity helps us all to develop skills essential for life after graduation, including the ability to judge the quality of ideas for ourselves, the ability to formulate arguments against ideas we reject, and the ability to live and work amicably alongside those whose ideas and values we do not share.”

What do you think? Do you think Heterodox University’s First Amendment Rights Protection Code is too much or not enough? What role do you think universities play in influencing and developing students’ political views?


Sarah R. Warren is a student of English Literature and Political Science at Florida State University. Her work has appeared in Ant vs Whale, Creative Communications' 2014 Spring Anthology, HowlRound, and the PULP magazine. Her poetry has received an honorable mention, Silver Key, and Gold Key from the Scholastic Art and Writing Awards. She is grateful to God for the opportunity to write at Uloop and attend such a wonderful university.

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