Michael Porter, Esq., is a partner with Miller Nash Graham & Dunn LLP, with offices in Oregon and Washington. You may contact him at Mike.Porter@MillerNash.com.

Many campuses have seen a significant uptick in vigorous verbal exchanges, protests and demonstrations, particularly related to race relations. This activity tests colleges’ desire to create open dialogue while also fulfilling their obligations to provide a campus environment focused on learning and the safe exchange of ideas.

Although issues involving the University of Missouri, Columbia, have probably garnered the most attention by the mainstream media because its football team helped bring national publicity to student concerns on its campus, it’s only one example of many recent student protests across the nation.

Campuses that anticipate vigorous demonstrations and debates should keep in mind the key legal parameters related to free speech. But, equally important, they should also trust their own judgment to guide their practical efforts and decisions related to expressive activity on their campuses.

Legal issues key part of equation

Higher ed administrators charged with maintaining the balance between free expression and keeping order on campus must remain cognizant of key legal issues.

Administrators know that under the First Amendment, public institutions have limited ability to restrict speech. Courts have issued innumerable opinions about the contours of those limitations. First Amendment law is complex, and legal counsel should usually be involved when considering specific free-speech issues.

Although private institutions aren’t subject to the constitutional requirements for restricting speech, most private institutions still take into account how public institutions address campus speech issues when making decisions about protests and disruptions, and often hold themselves out as recognizing the value in robust expressive activity.

Some speech not protected

Campus officials have some leeway to restrict truly threatening expressive activity — such as speech that could incite violence. And campus officials may restrict obscene speech and defamatory speech. But most speech doesn’t fall into these categories, and determining what constitutes speech that isn’t protected can be difficult.

Time, place, manner restrictions

Colleges may create reasonable time, place and manner restrictions on speech, and campus officials often know that speech that is (or is reasonably predicted to become) substantially disruptive can allow administrative action to regulate time, place and manner. But what one person would deem a substantial disruption could easily qualify as another person’s example of academic freedom and free speech at its best.

Anti-harassment codes

Hate-speech codes have been rejected by courts, usually because they’re overbroad (capturing speech that can’t be restricted) or vague (unclear so as to chill individuals from exercising speech rights).

But campuses typically have policies that allow discipline for speech that actually infringes on the rights of others, such as harassment toward an individual or individuals based on protected characteristics, and these policies, if properly drafted, are legal and can be invoked to address harassment.

Keep in mind that it can be tempting to overreach in any of the legal parameters. When seeking to quell unrest, administrators must be wary of First Amendment challenges when addressing expressive activity. Courts will often respond to restrictions on speech with a time-honored response that the answer to speech one doesn’t like is more speech, not less. In other words, courts encourage enhancing opportunities for opposing viewpoints instead of restricting speech.

Accordingly, the best way to address offensive speech is to respond with more speech, rather than attempting to quiet the offensive speech altogether. It’s worthwhile to ask whether providing an avenue for more speech may be an acceptable response to vigorous expressive activity before taking steps to attempt to restrict it.

Practical concerns play most critical role

Legal challenges related to the exercise of speech may correlate to the campus environment and administrative mindset. In other words, if an administration’s initial reaction to students seeking to be heard is a “law and order”–type approach, that approach is likely to play out through individual administrators’ restrictive views.

Campuswide emails that threaten students with discipline or arrest for hateful speech, for example, may have good intentions, but they may expose a college to legal challenges. More importantly, generalized threats of discipline may backfire by pushing students to test the outer limits of protected speech and increase the likelihood of actual substantial disruption.

Campus leaders looking to reduce legal risk and engender understanding from courts (and others) are often best served by the following key components:

  • Transparency. Provide up-to-date and accurate information on issues that students seem concerned about.
  • Planning and sharing. Develop a plan for dealing with controversial issues that’s reviewed by counsel and demonstrates a thoughtful approach to ensuring that students have an opportunity to express their views but permits necessary restrictions on activities to avoid sustained substantial disruption and real risks of harm to students.
  • Ongoing, open communication. Create credibility by demonstrating a real commitment to hearing students’ views if and when you must implement restrictive decisions for the sake of operations or safety.

When campus leaders start from the practical and principled approach to enhance opportunities for students to speak in a safe environment, they also increase the likelihood that when it’s necessary to address speech with some restrictions, those efforts will be understood and upheld if subjected to legal challenge.