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Opinion | Campus protests have reached Alabama. What should our universities do? 

Campus protests, after all, present a learning opportunity on permissible conduct and expression.

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It’s graduation season, yet controversy has overshadowed the end of the academic year at colleges across America.

You’ve likely seen troubling images from college campuses where students express anger over the Israel-Hamas conflict, which began when Israel retaliated against a surprise attack by Hamas on innocent Israeli civilians last October. 

Riot gear, tasers, tear gas, mass arrests, handcuffed students, white students calling black cops the KKK, chants of “from the river to the sea,” police dragging away zip-tied faculty—these illustrate the escalating chaos. 

How did we get here? 

On April 17, Columbia University’s president testified before Congress on antisemitism at her institution. Meanwhile, students at Columbia staged a prolonged campus sit-in, demanding divestment from Israeli ties and businesses. They set up tent encampments, sparking a movement that spread from Ivy League schools to prominent public ones like the University of Alabama.

Passions run high on contentious issues like Gaza. Let’s set them aside, arguendo, to concentrate on legal and normative considerations regarding controversial speech regulation. Campus protests, after all, present a learning opportunity on permissible conduct and expression.

In a universe of purely private interactions, speech regulation is straightforward. If you insult me in my home or business, I can ask you to leave or limit what you may say. Unless private individuals or businesses act on behalf of the government or serve as its surrogate, their restrictions on speech are constitutional. 

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The First Amendment prohibits only government-imposed speech restrictions. However, many private universities commit to safeguarding free speech in their policy manuals, promotional materials, and student handbooks. They must be held accountable to the standards they establish in these documents.

The First Amendment does not shield students from criminal liability for acts like theft, vandalism, destruction of property, assault, or battery. Committing crimes does not fall under First Amendment rights, and students cannot evade punishment for such actions. 

As long as students protest peacefully and within lawful guidelines, committing no crimes or violence, their speech is generally protected on public campuses. 

What of these lawful guidelines?

Government, including public universities, can regulate speech’s time, place, and manner with content-neutral rules that serve a significant government interest while allowing alternative communication channels. 

Government typically regulates speech that conflicts with others’ rights to speak or act. For example, it may restrict protests on public highways to ensure access for medical emergencies such as a pregnant woman going into labor or an ambulance rushing a heart attack patient to the emergency room. Disruptive behavior near healthcare facilities can exacerbate patients’ conditions, warranting regulation. 

Certain regulations on time, place, and manner facilitate rather than impede speech. For instance, a university might differentiate between expressive and disruptive behavior to allow a visiting speaker hosted by a student group to articulate his views without interruption, cancellation, or deplatforming. 

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Other time, place, and manner regulations protect against violations of rights to health, peace, or safety. A university may forbid bullhorn use near dorm rooms at night or intervene if a mob tries to incite a riot or block a Jewish student’s path to class while shouting antisemitic slurs. 

Even ardent libertarians will call the police if agitators disturb their sleep by shouting threats outside their home at 1:00 a.m.

Under First Amendment jurisprudence, the government cannot regulate speech because of its message or subject matter. Laws restricting speech based on its content are presumptively invalid. Accordingly, one’s opinions on events in Gaza are irrelevant when determining the legality of speech or protests about that subject at public universities. 

Courts and legislatures have established numerous exceptions to the principle of unrestricted speech. Fraud, perjury, incitement of imminent lawless action (“fighting words”), distribution of child pornography, defamation, false police reports (consider, e.g., the Carlee Russell situation), and unauthorized sharing of highly classified information are prohibited.

Performative expressions that aren’t written or spoken utterances deserve protection but can be regulated. Wearing an armband to protest war is permissible whereas setting off fireworks in a Latin classroom isn’t. 

Universities are unique among institutions in their dedication to advancing knowledge. Their administrators face the challenging task of protecting speech and academic freedom while ensuring the safety of students and staff. They risk losing funding or donations by permitting offensive behavior. Addressing demands for political action, such as creating a Palestinian state or providing aid to Ukraine, is beyond their scope and involves national security and foreign policy. 

As hubs of intellectual curiosity, universities should adopt a broad definition of speech that they enforce impartially to allow students and professors to express controversial views. Open inquiry contributes to the accumulation of knowledge by stimulating further study and research.

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Universities must allow protest and assembly in public spaces. While prioritizing free speech, they must recognize that the threat of violence can deter others from expressing themselves. When students feel safe to share their beliefs, speech thrives. However, if their security is at risk, students may hesitate to voice ideas.

Private universities of course have wider latitude to limit speech. Christian universities can prohibit the promotion of atheism in classrooms or mandate that faculty affirm belief in the Trinity.  

Public or private universities implementing valid speech policies should ensure that penalties are proportionate to the offense, avoiding excessive punishment. They can encourage high standards of speech and conduct without resorting to coercion or compulsion. The key is to ensure that student compliance with lawful speech regulations is voluntary.

Context matters; what’s acceptable in one situation may not be in another. Burning the American flag in protest outside the State Capitol Building may be constitutionally protected. Doing the same on a neighbor’s property without his permission is unlawful. 

Freedom of speech, an Enlightenment ideal, doesn’t enjoy a long history. British common law historically did not value free speech. It criminalized seditious libel. The American colonies in the seventeenth and eighteenth centuries penalized blasphemy. Some Founders who ratified the First Amendment later supported the Alien and Sedition Acts, which punished criticisms of the government. 

Although principles of free speech emerged during Revolutionary America, they didn’t gain widespread legal protection until the 20th century. Today, Americans can criticize their government with impunity, and the government may not discriminate against specific viewpoints. Alabama’s public universities are no exception.

Summoning the police or riot force on student protestors is a last resort, even if those engaged in civil disobedience aim for their eventual arrest.

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Funny how the political pendulum swings. In the 1960s and 70s, young leftist activists advocated free speech for peace and nonviolence. Recently, conservatives have championed unfettered expression following campus crackdowns against conservative speakers. However, some conservatives now call for strict measures against student protestors, including those critical of Israel.

The political right should not pressure universities to censor disagreeable or objectionable speech. Instead, it should foster constructive dialogue and respond to expression with expression. 

Justice Holmes famously said, “My right to swing my first ends where your nose begins.” This axiom reflects the libertarian essence of our free speech jurisprudence, which strives to facilitate speech while ensuring it doesn’t violate others’ rights. 

University administrators who appreciate the wisdom of Holmes’s words will be better equipped to handle potentially volatile situations involving speech controversies.

Allen Mendenhall is Associate Dean of the Sorrell College of Business at Troy University and Executive Director of the Manuel H. Johnson Center for Political Economy.

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