Introduction

Navigating the complexities of free speech and student protests is challenging for both public and private institutions. The distinction between protected speech under state constitutions and the rules of private institutions can be difficult to discern. This checklist offers practical suggestions for chief academic officers to effectively manage these issues. 

Navigating Free Speech and Student Protests: A Checklist

Policies Governing Speech

• Do you have policies governing speech?
  Implement time, place, and manner restrictions to manage when and where student protests and speech can occur. Ensure your policies are up-to-date and aligned with modern standards, such as prohibiting amplified sound after dusk but allowing silent vigils.

Free Speech Zones

• Where are the free speech zones on your campus?
  Identify informal and unregulated speech zones. Ensure any prohibitions do not conflict with areas that have become informal speech zones through practice.

Participation in Student Events

• Does your student activities policy regulate who can and cannot participate in student events?
  Restrict access to campus for outsiders during student-planned protests to prevent them from co-opting the event.

Dangerous vs. Offensive Speech

• Is the speech dangerous or merely offensive?
  Dangerous speech can be regulated more effectively than merely offensive speech. Understand the nuances and have clear criteria for determining what constitutes dangerous speech.

Safety Concerns

• Does the speech cause reasonable people to fear for their safety?
  If yes, take steps to mitigate foreseeable harm. Failing to act could have legal consequences if someone gets hurt.

Designated Protest Areas

• Designate where protests and public speech can occur on campus.
  Move protests to safer areas if necessary, such as athletic fields, unless specific zones like quadrangles are designated for speech.

Content-Based Regulation

• Can you regulate speech based on content alone?
  Generally, no. Focus on regulating time, place, and manner. Instead of suppressing offensive speech, create forums for controlled discussion, such as symposiums or debate.

Institutional Statements

• Should the institution take a position on critical issues?
  Involve stakeholders like the governing board, donors, alumni, and faculty senate in the decision. Consider the long-term implications of any public statements.

Forms of Speech

• Is it speech?
  Speech can include posters, art exhibitions, and graffiti. Apply uniform time, place, and manner restrictions and ensure consistent enforcement across different forms of expression.

Social Media and Online Speech

• How does your institution handle social media and online speech?
  Implement policies to curb hate speech and harassment online, aligned with your institution's broader inclusivity and diversity goals.

Commercial Speech

• Can you restrict commercial speech on campus?
  Yes, institutions can restrict advertising and other forms of commercial speech to designated areas.
• Questions To Ask:
• Does the institution have clear, unambiguous policies related to free speech?
• Who manages controversial speech on campus?
• Is there a method to internally challenge administrative decisions related to speech?
• How are speech policies communicated to campus constituents?

Policy Elements and Risk Factors

• Policy Considerations:
• Ensure policies are specific and context-aware.
• Address hate speech with a commitment to inclusivity and tolerance.
• Manage controversial speakers by requiring institutional sponsorship and permits.
• Implementation Checklist:
• Make speech codes available on institutional websites and other publications.
• Review disciplinary cases related to speech carefully.
• Outline permitted social media conduct in the institution’s policy.
• Clarify reporting procedures for harassment and disruption incidents.

Academic Freedom in the Classroom

• Academic freedom protects faculty and students' speech related to academic matters. Most institutions adhere to the AAUP's Statement on Academic Freedom and Tenure.

Time, Place, and Manner Restrictions

• Use these restrictions to manage speech while ensuring campus safety. Avoid overzealous application to prevent infringing on free speech rights.

Hate Speech

• Address hate speech through institutional commitment to inclusivity, confidential reporting mechanisms, and a comprehensive approach to incidents.

Controversial Speakers

• Manage events with controversial speakers through institutional sponsorships, permits, and appropriate security measures.

Student Media

• Implement social media policies to regulate unwanted speech, bullying, and harassment.

Trigger Warnings

• Consider trigger warnings in syllabi to allow students to opt-out of distressing content.

Conclusion

Free speech is integral to higher education, supporting the communication of ideas. Institutions must balance the implementation of speech policies with the need to uphold academic freedom and the free flow of ideas.

By carefully drafting and implementing policies, institutions can navigate the complexities of free speech and student protests while fostering an environment that promotes the free exchange of ideas.

References

American Association of University Professors (AAUP) Statement on Academic Freedom and Tenure, Adopted 1940, https://www.aaup.org/report/1940-statement-principles-academic-freedom-and-tenure

Although the checklist is general and intended as a reminder, it provides you with information to help ensure institutional compliance and reduce risk. I hope you find the checklist helpful. And I welcome your feedback, so please let me know what I can do to strengthen this document.  Please be sure to consult with your legal counsel on matters requiring legal advice. 

You can reach me at [email protected]

Mary Kennard, Esq., Senior Consultant, Academic Search.org