Table of Contents
State protections for speech at private colleges
The following selection is excerpted from 鶹ýIOS’s Guide to Due Process and Campus Justice.
Too often, students and student groups face discipline not for conduct, but for “offensive” speech. Private universities are not bound by the First Amendment and therefore are generally not prohibited by law in most states from imposing discipline for mere speech. But there are important exceptions.
The United States Constitution does not prohibit private organizations, such as universities, from making rules limiting the speech of those who choose to join them. Some state constitutions, however, establish an “affirmative right” to free speech that belongs to every citizen. In states with such provisions, courts have sometimes ruled that there are limits to the blanket rules that private colleges may make restricting speech.
In (1980), for example, the New Jersey Supreme Court ruled that a guarantee in the state constitution that “[e]very person may freely speak … on all subjects” barred Princeton University, a private institution, from enforcing too stringent a rule on speech. Princeton had required all persons unconnected with the university to obtain permission before distributing political literature on campus.
This case was one of a series decided by various state supreme courts that interpreted the free speech provisions of their respective state constitutions to give citizens more speech rights than are guaranteed by the First Amendment to the U.S. Constitution. Such decisions have obvious implications for free speech on the campuses of state universities.
Some states, however, also have statutes that limit the right of private associations — in our case, private colleges and universities — to restrict the free speech of their members. Other states have civil rights laws that protect citizens’ speech beyond the protection afforded by state or federal constitutional provisions.
If you attend a private, non-religious institution in California, you should be advised that California’s “Leonard Law” (named after its sponsoring legislator) grants students at secular private universities the same speech rights that the First Amendment and the California Constitution guarantee to students at public universities. This statute, passed in 1992, was the basis for a state court’s declaration that a code prohibiting “offensive speech” at Stanford University, a private university, was illegal.
If you face charges that relate in any way to speech, you should find out if your state constitution or statutes establish such a right to free speech. If your state offers such protections, you may want to defend yourself by going on the offense about your protected speech rights. Contact 鶹ýIOS as soon as possible, and consult 鶹ýIOS’s Guide to Free Speech on Campus for more information on your expressive rights.