The cost of freedom: How campus protests push limits of expression

The protests on college campuses over the Hamas-Israel war are receiving a lot of attention. However, amidst the cancellations of classes, occupation of buildings, and even instances of firing fireworks at Jewish people on campus, it seems that the fundamental question has been overlooked: to what extent are college protesters permitted to exercise their First Amendment rights?

The balance applied to our First Amendment rights is to ensure that, on the one hand, Americans are not censored or compelled to speak about something that they don’t believe to be true while, on the other hand, applying certain restrictions to prevent violent actions that could be harmful to the public.

Two professors of law, Geoffrey Stone and Eugene Volokh, in describing the common interpretation of “Freedom of Speech and the Press,” write:

"'Congress shall make no law ... abridging the freedom of speech, or of the press.' What does this mean today? Generally speaking, it means that the government may not jail, fine, or impose civil liability on people or organizations based on what they say or write, except in exceptional circumstances."

The courts have been pivotal in interpreting the limits of the First Amendment, ensuring it protects fundamental liberties while enabling the government to fulfill its duty to safeguard the public. However, the intricate balance of protecting free speech on college campuses while acknowledging "exceptional circumstances" poses a complex challenge.

Criteria for unprotected speech

The National Constitution Center explains the limits of freedom of speech within the context of a protest on a public campus:

"In general, protesters can express their personal and political opinions on campus at a public university and take part in group actions, as long as their actions do not violate any laws, do not incite violence, and do not constitute true threats. Because public universities receive public funds, they fall under the same requirements that govern speakers on public property."

Although students in public colleges have the right to exercise their First Amendment rights, the Supreme Court has identified several categories of expression as unprotected speech that it deems sufficiently "low value.” These categories are classified as follows:

1. Defamation and libel.
2. Incitement.
3. True threats.
4. Fighting words.
5. Obscenity.
6. Fraud.
7. Speech integral to criminal conduct.

In 1969, the Supreme Court applied the concept of unprotected speech in Brandenburg v. Ohio. The High Court used an "incitement test" to determine whether the speech involved defamation, inflammatory language inciting lawless action, or intent to cause violence.

With regard to private colleges, the application of First Amendment protections differs from publicly funded colleges. "Freedom of expression" is limited within private institutions that adhere to specific religious, ideological, or viewpoint-based principles. Individuals who voice their opinions or protest on private property or within the grounds of a private college may not have complete protection under the First Amendment.

Time, place and manner restrictions

A more common application of "exceptional circumstances" that can limit the freedom to protest on college campuses is "time, place, and manner restrictions."

"Time, place and manner" restrictions are government-imposed limitations on expressive activity that are considered content-neutral. These restrictions can include limits on noise levels, caps on the number of protesters, restrictions on demonstration times, and regulations for signs on government property.

• University protests may be limited to specific hours to avoid disrupting classes, research, and other university activities.
• Universities can allocate designated areas for protests, such as free speech zones. They may prohibit protests in the regions that could disrupt normal campus functions (e.g., inside classrooms and administrative buildings).
• Regulations may be imposed on the manner of protests to prevent incitement of violence, involvement in illegal activities, or the creation of unsafe conditions. For instance, protests cannot block building entrances or emergency exits.

According to the Foundation for Individual Rights and Expression (F.I.R.E.), "Institutions must be able to regulate on-campus expressive activity to ensure it doesn’t interfere with their primary educational and scholarly missions."

The three-prong test

To guard against abuse while imposing restrictions on “freedom of expression,” the Supreme Court in Ward v. Rock Against Racism (1989) put together a three-prong test to withstand First Amendment constitutional challenges.

1. The regulation must demonstrate content neutrality. The government can’t target specific viewpoints or messages.

2. It must be precisely tailored to further a significant governmental interest like public safety.

3. It must preserve abundant alternative channels for conveying the speaker's message. American people should still be given other avenues for expressing their viewpoints.

F.I.R.E. provides a concrete example of how this three-prong test is applied to withstand First Amendment constitutional challenges in the courts.

"Administrators can’t target encampments because they dislike pro-Palestinian views — even if some consider the expression anti-Semitic or otherwise offensive or hateful. Contrary to common misconceptions, that kind of speech is fully protected by the First Amendment unless it also constitutes conduct meeting the legal definition of a true threat, discriminatory harassment, incitement, or one of the few other, narrowly defined categories of unprotected speech."

In recent years, numerous protests have taken place on college campuses, serving as a platform for individuals to express their views. While some of the language used and opinions expressed may be deemed offensive, it's essential to acknowledge that they are protected under the First Amendment.

One of the most incredible things about the USA is our freedom to express our beliefs and to protest against anything or anyone that opposes such beliefs.

However, it is crucial to address situations where protests disrupt the normal functioning of educational institutions, such as disrupting classes, occupying building spaces, inciting violence through the use of "fighting words," or employing paraphernalia that could potentially harm bystanders. While ostensibly exercising the right to freedom of expression, these actions can be considered an abuse of that fundamental freedom. In such cases, it becomes necessary for the authorities to intervene and disband the protests to restore law and order, ensure the safety and well-being of all individuals involved, and maintain the integrity and operations of the educational establishment.

As we exercise our First Amendment rights in this great country, let's do so with the intention of expressing our views with love and respect for others.

May we share our truth while also inspiring and inviting others to engage in meaningful dialogue.

"By this we know love, that he laid down his life for us, and we ought to lay down our lives for the brothers. But if anyone has the world's goods and sees his brother in need, yet closes his heart against him, how does God's love abide in him? Little children, let us not love in word or talk but in deed and in truth" (1 John 3:16-18).