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Tuesday, 17 November 2015


Well, at public universities the property is public property and the faculty, administrators, etc. are all government employees.

"Briefly?" No.

As a "graduate" of the Free Speech Movement* at Berkeley, I'm sorry to say it depends on a lot of factors and is endlessly in flux.

OTOH, it's better than before the FSM, when University/College administrators and police had unquestioned rights to control all aspects on on-campus speech on both public and private campuses.

The general question of freedom of speech in open privately owned spaces open to the public varies by state. Pretty decent summary here.

This is one reason why, in some jurisdictions, some spaces otherwise open to the public are closed once a year on what would otherwise be an open day.

* Yup, I was there when Mario Savio was ranting from atop a police car with his bull horn, and so on ...

The first ten amendments to the Constitution are there specifically to tell the government what it cannot do. They do not apply to private individuals, as much as we might think they do.

Generally, students retain the right to freedom of expression at public institutions: https://www.oyez.org/cases/1968/21

That's a short answer. A complete answer wouldn't be short.

No entity other than a government has the power to make a law so there is not way for the 1st Amendment to be applicable to anything other than a government. The 1st Amendment bans the making of certain laws and nothing else. Private entities may restrict speech, but they cannot do so by making laws because they have no power to make any laws. Trying to apply the 1st Amendment to anything other than a government defies logic.

No one can be prosecuted, fined, or jailed for violating the rules of a private entity, so the stakes are much lower. The 1st Amendment is to make sure there cannot be criminal/civil penalties for expressing speech. Any other sort of (private) repercussions are mostly fine under the Constitution.

Private colleges are not limited by the 1st Amendment. State and federal colleges (the service academies) can be bound by the 1st Amendment. There may be some programs at private colleges that get some direct government funding and, therefore, may cause the 1st Amendment to apply to certain speech within that program at that college. Not sure though.

State constitutions in some states go further than the 1st Amendment in limiting restrictions on speech/expression. Although I believe that most of those also only limit government action (making laws), there could be exceptions out there among the many state constitutions.

Mike said "* Briefly?"

I see what you did there, Mike!


These folks know the answer. https://www.thefire.org/

Too bad most colleges don't.

Any branch or level of government is subject to the First Amendment. The phrase "Congress shall make no law ..." was extended to include states and other lesser levels of government by way of the 14th Amendment. This was from the case Gitlow v. New York (1925) and was the U.S. Supreme Court decision that established the incorporation doctrine, q.v. It significantly expanded the scope of First Amendment protections and subsequently other protections provided by the Bill of Rights. Today, any governmental activity all the way down to zoning board is subject to the First Amendment.

Here's an article that may or may not help concerning free speech at public. universities. http://genprogress.org/voices/2013/03/15/18613/can-universities-restrict-free-speech-on-campus/

According to that, schools can restrict free speech so long as it is "reasonably related to legitimate pedagogical concerns" under the ruling Hazelwood School District vs Kulmeier from 1968.

One would be awfully hard pressed to find a legitimate pedagogical concern in the University of Missouri case.

You may want to look at ag-gag laws. The First Amendment may be bypassed when it comes to agriculture and critique of the business.
The term ag-gag is a fairly recent one, but I seem to recall there's a long history of censorship with regard to speaking about farming practices in the US.

Not a lawyer but at least in private (and publicly listed) companies, they set rules to restrict the free speech of all employees. And not only on company secrets. I suppose private companies have some right as you have a choice not to work there, and it supposedly protects the company. But I am sure many of the rules are overly restrictive and would not stand up to real scrutiny. This seems to be the trend in general. Everybody is setting more and more rules.

My understanding is that the issue is not a criminal one, unless you are disseminating information that is vital to national security.

However, any direct financial or psychological damage, or loss of reputation, caused by a published article or speech can be sued for by the person affected as a civil case. For instance in a case of libel, slander or bullying.

In the case of dissemination of commercial secrets that you are contractually bound to keep safe, it is a simple breach of contract. However, this does not apply to company activities which are themselves unlawful, for obvious reasons.

Beyond what is explained at the Cornell link, the gist of it is that the Bill of Rights addresses what the government cannot do to you (such as speech restrictions), but it does not address conduct between private parties or on private property - including on business premises. (For wrongs committed by private parties, tort laws provide a potential remedy.) The 14th Amendment extends the protections of the Bill of Rights to cover action by the states (generally including public universities), including the First Amendment. As the Cornell article noted, restrictions on different forms of speech are subject to different standards, with political speech getting the strongest protection and restrictions on the same receiving the strictest scrutiny.

Well, at least that is about all I can remember from law school and a First Amendment jurisprudence class.

While not addressing your query directly, jurist David Cole offers his thoughts on Free-Speech in the context of Yale's recent halloween quandary...


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