By Alexander Tsesis. Full text here.
A theoretical question that runs through the debate on the constitutionality of campus speech codes asks whether free speech values are best preserved by categorical rules or balancing factors. Whether campus codes are constitutional should be analyzed through a doctrinal and statutory framework developed outside university settings, in cases involving incitement and harassment. Passionate debates over these matters have in recent years drawn journalistic and legal attention with the burgeoning of clamorous national and local movements calling for university administrators to suppress microagressions, issue trigger warnings, and designate safe spaces.
The context of the debate is informed by widely publicized verbal confrontations on U.S. campuses. Much disagreement exists about the legitimacy of universities hosting safe spaces and giving trigger warnings while prohibiting hate speech and microagressions. Various Supreme Court and lower court opinions inform the proper administration of university campuses in a manner conducive to the educational needs of student bodies.
Doctrinal avenues exist for creating effective campus codes. Assessment of their constitutionality should be informed by the U.S. Supreme Court’s true threats, fighting words, and defamation doctrines. In addition to the constitutional issues involved, college administrators should obtain guidance from federal statutory anti-harassment policy. Arguably, federal civil rights law requires colleges to take affirmative steps to prevent harassment on campuses. This framework provides the legal foundation for examining and analyzing the constitutionality of campus speech codes that have been promulgated by universities around the country, including the University of Chicago and the University of California.