Free Speech, Student Protest and the First Amendment

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This article originally appeared in the fall 2024 issue of UC San Diego Magazine as “Free Speech, Student Protest and the First Amendment.”

Sixty years after the Free Speech Movement on the UC Berkeley campus ignited a generation, student protests on higher education campuses have once again captured the nation’s attention, from the media and federal lawmakers to parents, alumni and donors. 

Yet a lack of knowledge about the basics of the First Amendment and why it is essential for democracy is a long-standing problem throughout the U.S. This issue, combined with deepening political polarization; a loss of confidence in the value of higher education; and legislative assaults on academic freedom in the form of bills against critical race theory and diversity, equity and inclusion, has created a uniquely volatile moment.

In my role as executive director at the UC National Center for Free Speech and Civic Engagement, I have the privilege of engaging with students, staff, administrators, faculty and law enforcement about the role of speech on University of California campuses. Many adult Americans do not understand the fundamentals of the First Amendment, and this makes it challenging to engage in the robust exchange of ideas.

The First Amendment of the U.S. Constitution protects the right to religious freedom, speech, assembly and press as well as to petition the government for a redress of grievances. It is surprising to many that it does not apply to private companies, including social media platforms. The First Amendment is about restraining the government (a category that includes public colleges and universities, such as those in the UC and California State University systems) from censoring or punishing individuals based on their beliefs or ideas. While private colleges and universities are not required to follow First Amendment jurisprudence, most abide by First Amendment norms to fulfill their missions. (In California, the Leonard Law requires private nonreligious colleges and universities to follow First Amendment jurisprudence.) 

People are surprised to learn that speech many consider bigoted and ugly is protected by the First Amendment. Protecting speech we like and agree with comes naturally, while protecting speech we abhor feels abnormal and deeply uncomfortable. This necessitates asking the following question: Why does the U.S. preclude the government from punishing hurtful and harmful speech?

Imagine our democracy if a person in power — the president, a governor or a chancellor of a UC campus — could decide which ideas were “hateful” and which were not. Would we want our government to determine which perspectives and ideas were offensive and, therefore, not permitted? When I think about this, I think about the history of social movements in this country — suffrage, civil rights, LGBTQ+ and #MeToo, to name a few — and question if people in power would have permitted those ideas that challenged the status quo. While there is a high price to pay for safeguarding speech that people disagree with, I believe it is what allows our democracy to thrive.

Does that mean we can say anything we want? No. The First Amendment does not protect certain categories of speech, such as threats, obscenity and harassment. However, the legal definitions of these terms are far more restrictive than their colloquial usage. This means that just because something feels ‘threatening,’ or ‘harassing,’ for example, does not mean it rises to the stringent criteria for a legal threat or harassment. 

So, how do these principles apply to the activism and disruptions on public campuses across the country this past academic year? In spaces that a public institution has opened for expressive uses, such as the quad, policies affecting individual expression must be subject- and viewpoint-neutral. This means the institution may not regulate speech based on the subject of the speech (e.g., immigration) or the ideology of that speech (e.g., anti-immigration).

If university administrators cannot limit speech based on the content of the message, what tools can they utilize to ensure that expression does not interfere with the safe operation of the institution itself, such as classes taking place without disruption? The most effective way to set equitable, constitutional regulations is to create time, place and manner restrictions. For example, no amplified sound (manner of speech) can be used between 10 p.m. and 8 a.m. (time) within 50 feet of a campus residence (place). 

In addition to not discriminating based on the subject and viewpoint of the speech, restrictions about time, place and manner must leave open ample alternative channels for speakers to communicate their message. In the above example, people can still express themselves between 10 p.m. and 8 a.m., just without amplification. Time, place and manner rules must also serve a significant government interest, such as not disrupting dorm residents during the night. Critical to the success of these regulations is their consistent application and enforcement. 

Having a baseline understanding of these constitutional concepts and how they work is a first step, but it is a critical one. Freedom of thought and expression allows for various groups to come together to engage in discourse and to share different perspectives on contentious issues without government interference. Only with this shared vocabulary can we build the open, curious, inclusive and dynamic community that UC strives to be. 

Michelle Deutchman is the executive director of the UC National Center of Free Speech and Civic Engagement. The center explores the intersection of expression, engagement and democratic learning. It considers what can be done to restore trust in the value of free speech on campus and in society at large by leveraging opportunities for teaching, learning and partnering with campus stakeholders to examine long-standing questions related to rights, respect and responsibility.