1. The First Amendment On Campus
Ian Bartrum, Professor of Law
January 5, 2018

2. Goals For Today Brief overview of recent events.
Some first principles.
Free Speech Doctrine:
General rules.
Schools & Universities
Closing Thoughts.

3. Recent First Amendment Events
NFL Anthem Protests:

4. Recent First Amendment Events
NFL Anthem Protests:

5. Recent First Amendment Events
NFL Anthem Protests:

6. Recent First Amendment Events
Charlottesville Protests:

7. Recent First Amendment Events
Charlottesville Protests:

8. Recent First Amendment Events
Charlottesville Protests:

9. Recent First Amendment Events
Berkeley Protests:

10. Recent First Amendment Events
Berkeley Protests:

11. Recent First Amendment Events
Berkeley Protests:

12. Some First Principles

13. Some First Principles Why Value Free Speech? For the speaker?
For the audience?
For society?
At what cost or danger?
For community?
For government?

14. Some First Principles Self-Governance: Alexander Meiklejohn
Value to speaker of political activism
Value to audience of information.
Value to community of engagement and participation.

15. Some First Principles Discovering Truth:
Oliver Wendell Holmes: “marketplace of ideas”; natural selection.
Intellectual, artistic, scientific value to all stakeholders.

16. Some First Principles Advancing Autonomy
Primarily concerned with freedom of will, expression, fulfillment of the speaker.
Also, however, education of audience.

17. Some First Principles Promoting Tolerance:
Primarily concerned with effect on audience of thickening skin.
Forces community to confront all ideas.

18. Some First Principles
Costs & Criticism

19. Some First Principles

20. Doctrine: General Rules
State Action:
First Amendment applies only to actions that we can attribute to the government.
Laws, regulations, executive orders, court decisions.
Circumstances in which government and private actors are entangled.

21. Doctrine: General Rules
Content:
Is restriction content-based?
Viewpoint-based?
Subject-matter based?
Super strict scrutiny.
Is restriction content-neutral?
Time, place, or manner?
“Secondary effects”?
Intermediate scrutiny.

22. Doctrine: General Rules
Forum:
Traditional Public Forum
Designated Public Forum
Limited Public Forum
Non-public Forum

23. Doctrine: General Rules
Speaker:
Individual
Corporation
Government

24. Doctrine: General Rules
Type of Speech:
Political
General
Symbolic
Less protected:
Incitement of illegal activity.
Fighting words / Hate Speech
Defamation

25. Doctrine: General Rules
Symbolic Speech / Conduct:
Intended to convey a specific message.
Likely to be understood.
Regulation must target non-speech elements of conduct.

26. Doctrine: General Rules
Incitement:
Clear and Present Danger
Brandenburg Test:
Intended and Likely to cause
Imminent
Lawless behavior
Unprotected

27. Doctrine: General Rules
Fighting Words / Hate Speech:
Words whose very utterance tend incite violence or inflict harm.
Modern hate speech:
“Intent to intimidate” must be element of crime.
Unprotected.

28. Doctrine: General Rules
Defamation:
Public or private figure?
Plaintiff
Burden of Proof
Mens Rea: Compensatory
Mens Rea: Punitive
Public Official
Clear and Convincing Evidence
Actual Malice
Public Figure
Clear and Convincing
Evidence
Private Figure/ Matter of Public Concern
Preponderance of the Evidence
Negligence
Private Figure/ Matter of Private Concern

29. Doctrine: General Rules
Permits / Licenses:
Content-neutral: Time, place, or manner.
Important government purpose.
Clear criteria / no discretion
Provide for judicial review.

30. Doctrine: Schools & Universities
Early Cases:
Barnette, Tinker, Papish:
Court clearly extends First Amendment protections to students.
Not as clear about faculty, but strong sense of academic freedom supports applying constitutional principles.

31. Doctrine: Schools & Universities
Modern Recent Cases:
More deference to administrators:
Fraser: Punishment for lewd speech.
Hazelwood: Censor articles on student pregnancy (students w/ faculty advisor).
Morse: Can punish “Bong Hits 4 Jesus”

32. Doctrine: Schools & Universities
Freedom of Association:
Schools can place some conditions on receipt of funding or support.
Roberts v. Jaycees: Still subject to anti-discrimination law.
But note: Boy Scouts v. Dale: Permits discrimination against homosexuals.
CLS v. Martinez: University can require a “take all comers” membership policy.

33. Closing Thoughts
“In those wretched countries where a man cannot call his tongue his own, he can scarce call anything his own. Whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech.”
— Benjamin Franklin