What Are the Limits of Students’ First Amendment Rights on College Campuses?

Episode Notes

Transcript

Todd Berger:

For decades, universities have been a hotbed for activism from wars and economic inequality to hate speech and racism. Students have long engaged in civil protests on a wide range of matters, but while many campuses embraced their role as a forum for this type of speech, recent protests have raised questions about the limits of a student’s first amendment rights, the expectations students and universities have of each other, and the duties students owe their peers. Today returning our conversation to explore these issues and to discuss the considerations you as a law student should keep in mind when considering where, when, and how to make your voice heard. Today we’re deviating a bit from our normal format by coming together as a group to speak with our guest Professor Roy Gutterman, so that we can better reflect on our own diverse voices in this complicated matter. Professor Roy Gutterman is an expert on communications and First amendment law. He’s the director of Newhouse School’s, Tully Center for Free Speech at Syracuse University, and he’s also a graduate of the Syracuse University College of Law. Professor Guttman worked as a reporter for the Cleveland Plain dealer covering local and state government crime legal issues in general news. And he later clerked for a New Jersey Superior Court Judge and practiced business in general litigation. He writes and speaks on media law, free speech, the intersection between courts and journalists and legal education issues.

Leah Haberman:

As Todd was saying, this has been such a very intense moment for college students but also for law students who oftentimes are classrooms are adjacent or even on the same campus where many of the protests that happened over the last few months took place. Many law students participated in the various encampments. Today we were hoping to get into some of the boundaries of the First Amendment because that word in free speech had been thrown out a lot over the last few weeks. But I know for myself, I never took a class specifically on the First Amendment. So I know some but not even close to what I needed to kind of grapple with everything happening. And so we were hoping that we could start the conversation by setting the stage a little bit and talking about the history of protests and how does that relate to the pushing the boundaries of free speech.

Roy Gutterman:

Well, we can go all the way back to 1919 to establish our body of free speech law, a case involving some disfavored groups of the time they were communist socialists. And the preeminent case on this is Shank versus United States. And this is a famous case and some of the rhetoric that came out of the case is still live today. Some of the standards that Justice Holmes established in that case are still part of our current body of law. So back to 1919, the Supreme Court ruled on a case involving a group of communists that were handing out leaflets. They were prosecuted under the Espionage Act, which is still an act of law as well today. And they challenged their conviction all the way to the Supreme Court on the grounds that they were engaged in a protected speech. And Justice Holmes laid out perhaps one of the more famous doctrines here.

And that’s the theory and present danger test. And again, we cover that a lot in common law too to a certain extent, but it’s still kind of a catchy phrase and it’s still a catchy turn. And most of the general public has some vague understanding of this. I mean, so often you hear people, you can’t yell fire in a theater or close a panic. Well, that’s where that doctrine came from. That’s still kind of a sketchy that afford to use, but it still resonates today. So Holmes creates to clear present danger test to pretty much rein in and draw a line on where speech will end and illegal activity will begin. And that was later clarified. There was a second case in 1919, the Abrahams case, which is almost identical, but Holmes wrote a dissenting opinion on that case. But fast forward to 1969 and another dispa group at the time, a group of Ku Klux Klansmen and outside of Cincinnati were doing a clan rally in the middle of the night in the middle of nowhere and they got prosecuted and that created the case, the Brandenburg versus Ohio case, which takes the clear present danger test and adds another clause onto that.

So our predominant standard, and it is you can have free speech until you create a clear and present danger of imminent laws action. So there’s both sort of an objective element to that and a highly subjective element to that. So that’s kind of the background. Again, we’re glossing over a hundred years of dissidents, protestors and some other favored groups here and there.

Chay Rodriguez:

Professor, is there any historical significance to choosing universities and college campuses as a location for particular protests?

Roy Gutterman:

Well, the moderate free speech movement, we can credit being born at Berkeley in the sixties, colleges have always been kind of a hotbed for protest at least since the sixties. And it seems to have gravitated to that right now. College campuses coming back to the sixties were grounding for protests, some violent protests. The protests shut down universities including Columbia, including Syracuse, and that was related to the Vietnam and war. So the hot button issues of the day tend to find a whole with young people working forward, young people at least in the sixties, who were directly implicated by US war policy and the draft. So traditionally college campuses have been a refuge for free speech both from students and faculty.

Leah Haberman:

That makes a lot of sense to me. I think young people and especially students who are learning so much at any given time become incredibly passionate to then use that knowledge to speak their minds. And so as a student on Columbia’s campus, I saw so much of that passion and then a lot of the conversation and legal discourse though it’s not about what you feel. It’s like this is what the law is. And as you said, with the clear and present danger standard, it’s a line drawing question, how do you know it’s an imminent risk? And so if we can kind of break down some of those line drawing issues for folks who are like, but isn’t this a First Amendment issue? Unpacking the lying drawing that needs to go in to determining whether something’s a First Amendment issue. So if we can kind of start with the conduct speech distinction, I first heard about that when it came to flag burning cases, if that was still protected speech even though no words were being spoken. So I was wondering if you could clarify if participating in the encampment itself, when we can go through the public and private distinction, but the act of the encampment, where does that play into this conduct speech dichotomy?

Roy Gutterman:

The conduct speech issue was actually secondary to government action. In order to have a violation of the First Amendment, you have to have government action. It’s a pretty clear thing, the police acting passing policies or laws specifically directed toward a speaker or something like that. But in order for there to be a First Amendment violation across the board, there have to be some sort of government action. So we have that in the background, but then the somewhat nuanced distinction between conduct and speech can get kind of blurry at points. I mean conduct criminal activity is considered conduct. So something like stalking, harassing, that sort of stuff would be conduct. But then we have symbolic speech which envelops all this as well. And symbolic speech has a long, great rich history in the US to, and it can be as inflammatory has burning a flag, which is protected by two relatively recent Supreme Court cases from the last 30 or so years to what you wear or things like piercings or hair color depending on the venue. So conducts and speech do intersect, and a lot of it also depends on the venue. Where is this happening?

Leah Haberman:

If you could kind of elaborate a little bit more and help us parse out, I attended Columbia, which is a private school, and then I had friends who were at uc, Berkeley, which is a public school. How does that play into this when we’re talking about the government action, but also then the university action as a government agent?

Roy Gutterman:

Sure. I mean in the strictest sense, Columbia, they could establish gates and require specific IDs and they can prohibit people from coming onto campus for just about any objective reason. They can’t discriminate based on race or gender or any protected category, but they could certainly establish any sort of standards for entering the Columbia Quad Epic Gate because it’s private property, they’re quasi-public venues as well. So that’s where it becomes even more nuanced with state university like Berkeley or what we saw at ECLA. Those two are nuanced because even a public university or a government entity can establish reasonable time placent manner restrictions, and that’s where it can be a little more nuanced as well.

Leah Haberman:

So I guess to that point of, I’ve heard those buzzwords before, time place in manner restrictions. You also mentioned government action before, and so I want to try to weave some of this together. We need government action, but if you have a private university, where does that government action come in? And for example, NYPD was called to Columbia’s campus. Is that enough government action to start asking these time, place and manner questions or what do those questions look like necessarily?

Roy Gutterman:

I mean, in the strictest sense, when Columbia’s president or whoever made the call to NYPD, they were basically calling or in law enforcement to evict trespassers people who were not welcome on the campus or people who outstate their welcome. And this goes back to certain elements of first year property law. If you own property or possessed property, you can within your bundle of rights is dictating who can be on your property. And many universities wrestled with this because quads are quasi-public places and they allowed these encampments, they sort of allowed them to pop up and they more apt than welcome to a certain extent. And then you have an attempt to occupy a building which then becomes criminal trespass at a certain. So I think some of the encampments were vested in certain general free speech principles that were in a right to assembly, but you can wear out your right to assemble and the first amendment right to assemble is peaceably assemble some of the behavior that we saw all over the country in some of these encampments may reasonably be interpreted as not peaceful, hence then that wouldn’t be protected by the first amendment.

Chay Rodriguez:

I think it gets a little muddy when you start to separate out private school versus public school and then student versus maybe non-student and you’re really not sure, would it have been beneficial for maybe the private schools to not allow such leeway and to not allow those encampments so that I guess the wearing out of welcome wouldn’t have been a factor.

Roy Gutterman:

Well then you get into then it’s almost an argument of viewpoint based censorship. We’re not letting these protesters on the campus and we’re going against this academic notion of free exchange of ideas. So these universities, private universities and even the state universities that really had to walk a fine line and we saw that it’s easy to fall off that line or to trip over it and have a cosmetic PR nightmare. There was no good way to handle this once it started calling police in a riot gear to clear out protestors certainly does not create the aesthetic that the university would want. But then again, some of the messages that were being propagated might not be messages that everybody on campus would agree with anyone. And some of the messages were offensive, anti-Semitic offensive, but you have a first amendment right to be anti-Semitic and offensive, and I would stand behind that as well. But end of the day, there was a razor thin margin and I don’t know if too many places had handled it really effectively.

Leah Haberman:

I’m glad you brought up the subjective nature of what is offensive, what is going to be bothersome to some people and not others. That is part of what you mentioned, the free exchange of ideas that is supposed to be what universities are there for because when I was at Columbia’s encampment, I saw professors come out and really lovely supportive students and they gave these speeches about how this violated the academic freedom that inspired them to become professors and just how essential student discourse and passion is, especially for these college students who are 18, 19 really finding their voice. And I was just wondering, is this idea, when we say the free exchange of ideas, is this something that’s an academic notion that we are feeling or do we have legal principles to say yes, we have a right to say things even if you subjectively are offended by them?

Roy Gutterman:

Yeah, I mean everybody has a right to their opinion, their right to free speech. I mean, you look at analogous constitutions around the world and most of these rights are housed as a freedom of conscience, the right to think, the right to speak, the right to say what you want to say and what you want to believe. And that is an entirely valid, legitimate human right. The one thing that it comes with is potential for ramifications, fallout the very least, retort reply and retort and response and denim. That’s where we go back to Holmes and his Abrams descent with the marketplace of ideas. And that’s great in an academic setting and it’s within the spirit of a university setting as well. But speech has consequences. You can’t say everything you want to say was in puberty, right? We have controls on that. We have defamation law. You can’t publish false statements that’ll align their reputation and if you know that they’re false, it could be even worse. I mean it could be even bring up more damages. We have all sorts of other restrictions. I mean even copyright law to put it into a totally different direction with intellectual property. Some people view that as a restraint on speech because it restrains some point use of intellectual property.

We do have legal consequences, but one of the things we’ve also seen is the marketplace consequences of some of the speech that we’ve seen in the last six or so months. There’s always been that sort of underlying specter of punishment for your views. And this goes back to blacklists of communists of socialists, blacklists of civil rights organizers and the way the law has been used to kind of suppress viewpoints and the way the private marketplace can be leveraged to engage in viewpoint discrimination.

Todd Berger:

We’ll return to our conversation with Professor Roy Gutterman in just a moment. Now back to our conversation with Professor Roy Gutterman.

Leah Haberman:

We’re talking a lot about the information and what’s on campus, and I want to go back to a previous point you made Professor Gutterman of we’re talking about government action, we’re talking about news action, but you also mentioned the private sector’s actions and I have peers who have faced these life altering consequences for their speech. Students who signed on to advocacy letters, students who participated in what we have as GroupMe. I know other schools do different things, but our forum for student only conversations and their names were leaked and a lot of students lost their jobs because of their speech and their affiliations. And these are private employers like we’ve mentioned, and the first amendment there has a different role, not this government action, but if you can kind of elaborate the viewpoint discrimination you were mentioning earlier about those boundaries because I know as a recent graduate, a lot of my peers are thinking about our next steps bar admission and our jobs.

Roy Gutterman:

Private employers can establish what any criteria they want as long as it’s not discriminating based on any protected category. Employment law is a fascinating area. I doubt it when I practice, but viewpoint discrimination isn’t necessarily a protected category. So I hate to use clear examples on something that thinks could be so inflammatory, but if I didn’t believe in evolution and if I had a public facing presence against evolution, I don’t think I’d be a good candidate to get a job at a natural history museum or a zoo or anything like that. And that would be a legitimate viewpoint based discriminatory hiring decision. So I mean that’s kind of a less offensive example, but if I harbored openly racist viewpoints in Publix, I probably wouldn’t get a job with the A CLU or certain types of other kinds of companies that don’t want to have that image or that kind of employee and their ranks. I mean, in the old days you had to be something as basic as like a beard or a mustache or long hair or piercings, and there are still workplaces that might not give somebody a second look because of something as expressive as piercings or tattoos or the clothes wear to the job interview. And as disheartening as that might be, it’s still within the confine of hiring decisions.

Chay Rodriguez:

Professor recently, a small group of federal judges announced that they would not be hiring Columbia graduates because of the protest activity there. And while discretion may play a role there as well, as far as the judges being able to choose is the punishment that extends to future Columbia graduates like a bigger issue because depending on that timeframe, you’re punishing people who had nothing, who didn’t even use their voice in this instance at this school at this time.

Roy Gutterman:

Yeah, hiring judicial LawClerk is such a personalized hiring process in its own own. So I don’t think Columbia Law students are going to be that setback down the line. I don’t know who the judges are on this list, but within hiring of the upper echelon clerkship pool, you sort of know where the judges are going to be pulling their clerks from anyway. So the Columbia Law grants will probably find a more hospitable environment with other judges who would like them.

Leah Haberman:

So for those who are listening to the podcast today and they want to choose to funnel these feelings and they’re like, I still don’t understand how the First Amendment and free speech still allowed all the things that I saw and witnessed to happen, and I want to turn that into some academic curiosity and they might want to write their note, do some research. What are the areas that you would say to a student, these are things that are creeping up right now. Here were the things that were kind of the messy gray areas of what happened to look into not the parts that are like, yeah, these are the baked areas of the First Amendment that maybe everyone’s already talked about.

Roy Gutterman:

Yeah, I mean I kept see Tampa wine. There will be a flood of law view nos on the rights and public places, the rights and quasi public places a call for stronger first amendment affirmation with academic speech. Many others still is kind a line between academic speech and pure First Amendment than our protection. Perhaps a more approach could even be writing on whether there shouldn’t be a viewpoint discrimination caveat to our basic tenant of employment law, whether there should be kind of an element of First Amendment equalization on that. Again, I don’t know how compelling you could make that argument given the body precedent on both sides, but there could be something down on that line. Any chance for law students. In some ways you’re picking a side, the law is an adversarial process and it’s a matter of sometimes which side you’re going to be on which side of history.

This one is a lot more difficult because when you compare it to some of the earlier movements now protesting against the draft and the Vietnam War, well, there wasn’t a big other side to that argument. And then there was a pro-government side, but that was pretty imbued. Even going back to civil rights, there obviously was an other side to that, but history has shown how that side ended up being on the wrong side. So this concept of that the marketplace of ideas, there can be a longer view that plays out with history, even going back to when I was entering college, the protests against South Africa, and there’s been such a analogous comparison to the divestment from South Africa movement from the late eighties into the early nineties. And even that there was no other side to that argument. I remember seeing on college visits, shanty town set up and protest, and you didn’t see anybody with a throw apart shanty town on the other side of the quad.

But the current issue is different. There is another side, there are multiple sides, and it’s an extremely complicated global regional Middle East issue that perhaps some people are speaking out of their way. There are people who might not be well-versed in Middle Eastern policy who have jumped onto this protest train. It’s probably fun to live in a tent out in the quad for a couple of weeks and to feel like you’re part of a bigger issue, but I’m going to be involved in this thoroughly understands what it’s all about. Maybe that say those questions for perhaps an international law expert.

Leah Haberman:

Well, I think on that note, I hope folks listening who have their passions for however much they know about the issue, I think everyone comes at an issue with different information, different backgrounds. I think everyone on this call, I think I’ve learned a lot through working with my co-hosts and the A BA about understanding the variety of perspectives going on here. And so I really appreciate having the tools that you’ve brought up today, professor Gutterman and understanding the First Amendment to combine with the passions I have on the issue. So this has all been really helpful and I hope that folks listening for whatever feelings that the past few months have evoked, at least they walk away from this conversation with a little bit more information on the legal frameworks to help put their passions and plug it into do something like you said as advocates because that is what law school is here to make us become.

Roy Gutterman:

Thank you. I believe more speech is good speech.

Todd Berger:

We’ll be back with our group discussion in just a moment. Hey Leah. Hey, Chay. What were your big takeaways from your discussion with Professor Gutterman? Leah?

Leah Haberman:

I think almost at a doctrinal level, I either never learned or probably forgot. And having gotten into that part of my bar setting where the first amendment and government action and that is that necessary component, and I think that with everything going on, sometimes it was hard to figure out these subjective pieces and then how does that go with the line drawing? Because even throughout the conversation, I think all of us maybe see different things and would maybe come differently on that line drawing of was this objectively offensive? Was this imminent, was this, and if even the four of us, and probably listeners could have agreed and very strongly disagreed with some of the things we said that our guests said. So then it’s like if we disagree, how do we feel so confident in the line drawing that judges do? But that’s true in any area of law where in any time you have to draw the line. So it just reinforced that this is oftentimes just as much an art as a science, but then there are the critical pieces that are like, okay, a little bit more of the doctrinal breakdown of government action. So the kind of doctrinal pieces mixed with the mess left me a little bit more of, at least I know after law school, a little bit more to do with the mess.

Todd Berger:

Yeah, I think the two points you made are really important. So one is kind of the distinction between the private and public actors. I think a lot of people tend to think that you might be on a private university, and so they think that they have the first amendment rights in the way you do at a public university. And I think students, maybe people are learning as a part of this that you don’t. At the same time, I think that if you look at how codes of student conduct are written and how codes of faculty conduct are written, they oftentimes mirror very similar language to the First Amendment. And the idea that the First Amendment jurisprudence Supreme Court justices of what we want to have a marketplace of ideas that’s from the First Amendment case, yet it seems to map on ideally to what we’re trying to accomplish in higher education.

So there’s a lot of similarities between First Amendment jurisprudence and academic freedom, but there are some distinctions, and like you said, that fine doctrinal point about are you a state actor or not, is kind of what makes the difference. And I think that’s also a really important point when we think about line drawing. When all of this first started, not necessarily the encampments, but when we had the famous testimony from the three university presidents before Congress, two of them, the president of Harvard, Penn and MIT, two of them are no longer in those positions. What I thought was really interesting was that you had three private school presidents there, and why was that interesting? Because you can ask those private school presidents, where do you draw the line? And that’s a fruitful area of discussion because they have an option to draw a line somewhere.

There’s a reason the president of Penn is there and not the president of Penn State because the president of Penn State can say, well, the line gets drawn at the First Amendment. Now the idea that we have to figure out on a given day where that precise line is factual, it depends on what’s going on in a given context and circumstance. It can’t really answer given a hypothetical out of nowhere to address that. But it’s pretty easy if you go to a public school, you have to follow the dictates of the First Amendment. And we had great discussion with Professor Gutman laying out what looks like, but private schools, it’s harder. You have to make more normative judgements about where you think the line should be drawn, almost like you’re writing your own constitution. And I think that’s what can be a really complicated thing to do. And it’s something that I think faculty and students have struggle with a lot as we’ve sort of seen the emergence of these protests on campus.

Chay Rodriguez:

I think that’s why it was so important to also harken back to the history of protests like Leah did and highlight the significance of college campuses in that history. And also as we talk about the exchange of ideas, there’s an element of, dare I say it, diversity in there. And we’ve kind of seen how the court feels about certain types of diversity and how that can impact the classroom. And I don’t think this should far or be a separate issue in people’s minds when they kind of think about how our classrooms are going to be framed in the future and how people are going to be able to express themselves or not in the future.

Todd Berger:

Leah, you’re in a unique situation because you’re at Columbia, which I don’t know if the encampment started at Columbia, maybe they did, but it’s certainly been the most prominent example of these student protests. When you talk to your classmates, obviously you can’t speak for everyone, but is there a sense of apprehension about what the future might hold because there’s all this stuff surrounding Columbia and people losing jobs or this sort of being seen as a place where all this stuff started, or do you find that this somehow has inspired students and that there’s a sense of kind of almost defiance that’s creeped in and students say no, where our freedom of expression is important, the ultimate consequences of that, whatever they might be, don’t so much matter we’re going to continue to express ourselves. Or is it a combination of both?

Leah Haberman:

Obviously, I can’t speak for any student besides myself, but I will say that I think that this forever changed a lot of people’s perspective on Columbia, and I’m sure that is true for wherever people go to school. It forever changed their idea on institutions. And I know that there are undergrads and students who are still advocating and who are still also dealing with the repercussions of their advocacy. And so I wouldn’t be surprised if over the summer there’s going to be more actions. And to me, just because the school year ended, none of the issues have been resolved. So I’m sure I’m graduated and I’m studying for theBar, so I am not on campus, but I am sure that there are more conversations still being had. And I think to the point about inspiring, I think that it’s the underlying issues that were motivating the protests on both sides that are inspiring people, maybe more than the protests.

And I think that often got lost because the protests garnered so much social media attention. And I think that’s often been the case, right? Reminding ourselves of the core underlying issues that people are protesting for. It’s just as important as talking about the protests within themselves. And I was really inspired by the people who did jail support and really supported and used their legal degrees as legal observers and found the ways where they’re like, I’m going to be a part of this moment in history because as Professor Gutman said, history sees these things different in hindsight. And so we are in this moment now, and I’ll be very curious to see how these things are talked about in a few years, but I do think that this is so iterative of, we mentioned that students are going to be writing notes on this thing, and I know that there are boards of law reviews who are not going to want certain articles written, and you got to figure out how to do that. And then that’s a really powerful decision to make to use your academic voice to advocate for these issues and put your future on the line.

Todd Berger:

Our special thanks today to our guest, professor Roy Gutterman. If you’d like to keep this conversation going, share your question with us on Spotify or write us a review on Apple Podcasts, we’d like to give our thanks to the ABAs Law Student Division and our production partners at Legal Talk Network. We’ll be back later this month with our last episode of the season.