Law expert comments on campus free speech

Ronald Krotoszynski is the John S. Stone Chairholder of Law and Director of Faculty Research within the University’s School of Law. His areas of law expertise include administrative, telecommunication and constitutional law and the First Amendment. Krotoszynski has published a casebook and two university press books in relation to First Amendment law.

As a professor of law, what do you believe are some of the fundamental rights students should have in relation to free speech?

Context is everything. To answer the question generally is not possible, but in general, students enjoy free speech rights that vary depending on the exact context in which the expressive conduct occurs. In an area that constitutes a traditional or general-purpose public forum, however, students cannot be subjected to viewpoint or content discrimination. At the same time, even in a public forum, students are not entitled to make threats or engage in conduct that constitutes harassment. And even a public forum may be regulated on a content-neutral basis through reasonable time, place and manner restrictions.

How do other universities protect students’ rights to free speech?

Private universities are not state actors and do not have to respect constitutional rights, including rights secured by the First Amendment. State-operated universities are state actors and, accordingly, are bound by the First Amendment. As a general matter, universities protect speech rights in large measure by not regulating speech in the first place. For example, I’ve never had my dean or a University administrator attempt to tell me what I may or may not teach in my courses at the law school. Anything not prohibited is effectively permitted. University restrictions on student, faculty and staff speech are the exceptions to the general rule that applies. And such regulations limiting speech on campus are subject to First Amendment scrutiny.

How do you think [the University]'s policies match in comparison?

My own perception is that the University does a good job of balancing the right to free expression against the right of students, faculty and staff not to be subjected to threats or verbal harassment. So long as speech regulations target unlawful conduct and not viewpoints or ideology, such regulations are likely constitutional. In other words, it’s permissible to hold and share discriminatory viewpoints, but if you target a person for harassment, the University will respond. Provided that the University applies speech regulations along the lines of Title VII’s “hostile workplace” doctrine, such regulations are perfectly constitutional. Since I’ve been here, for example, the Westboro Baptist Church has come to campus at least once, perhaps more than once. I cannot think of a more offensive group – they target the funerals of deceased members of the U.S. armed forces for targeted protest using highly offensive placards and language. Clearly Westboro goes out of its way to be intentionally outrageous and offensive, yet it’s protected speech because they do not make true threats and they do not engage in harassing behavior.

[The University] has been ranked as one of the worst universities for free speech. What about its policies do you think factor into this ranking and opinion?

I have not heard of any complaints regarding academic freedom at the University, for example, which is not the case at other state institutions. The University of North Carolina at Chapel Hill has been accused of censoring faculty speech and allegedly retaliating against a law professor for writing op-eds critical of the state government’s efforts to address poverty. The University of Colorado has fired academics for publishing controversial opinions. This just isn’t happening here. I’ve also not heard of any students being subject to viewpoint discrimination in their studies here. Academic freedom seems alive and well at The University of Alabama. If this question relates to the grounds policy, well, the Supreme Court has held that the U.S. Postal Service need not make available sidewalks or parking areas at local post offices for pamphleting or protest activity. The case name is Kokinda. With respect to government-owned property, the Supreme Court has given government entities broad discretion to regulate how property is used – including bans on expressive activities. I think the logic of these decisions is questionable, but the law is quite settled that a government entity may reserve property for its intended uses, and I take the grounds policy to be [the University]‘s means of doing just this.

I would hasten to add, however, that the University does not control or own streets and sidewalks that abut University property, that these areas constitute classic or traditional public fora and that students, faculty, staff, local residents, visitors – anybody – is free to protest, leaflet or picket on city-owned public property of this sort. Large parts of the University's grounds do not constitute a public forum, and the University may constitutionally regulate use of this property for expressive activities. It's possible that some areas, such as the main Quad, constitute a public forum; the University's ability to regulate speech in a traditional public forum would be more limited. I suspect that the University takes the position that the Quad is not a public forum, however, and someone seeking to establish this status would need to litigate the matter. I am confident that the University would abide by a court ruling that declares the Quad a public forum, if such a ruling were to issue from a federal court. I can see arguments for both sides. Let me add as well that even if the Quad is a public forum, the University would still be permitted to adopt and enforce content-neutral and reasonable time, place and manner restrictions. So designating the Quad a public forum would not imply that the area would automatically become a kind of free speech, free-fire zone.

Should students feel that their rights to free speech are violated, what is the best way to communicate this?

I would suggest taking it up with campus security and the UA administration. If these conversations do not prove sufficiently fruitful, the federal courts are open. Moreover, there are organizations such as the ACLU that take on such litigation against government defendants as part of their core mission. My own view is that if you can negotiate a resolution without recourse to the courts, that would be best for a variety of reasons. It would be faster, cheaper and more efficient. But if someone sincerely believes that their constitutional rights are being violated, the proper way to test that proposition is to seek judicial relief in the federal courts. One thing that I would never counsel: willful or intentional violation of the University's regulations. There's a formal process for legally testing speech regulations that you believe violate the First Amendment, and this process does not involve simply violating a rule that you believe to be unconstitutional. Follow the proper channels of obtaining recourse within the University, and if those do not resolve your issue, test the regulations in a federal court. That is how our system works. 

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