First Amendment Issues

JOURNALISTIC INTEGRITY TASK FORCE - SOME FIRST AMENDMENT FACTS

To:       The Task Force on Journalistic Integrity
From:   Subcommittee on the First Amendment[1]
Date:    April 26, 2007

Freedom of Speech
“State colleges and universities are not enclaves immune from the sweep of the First Amendment.”  Healy v. James, 408 U.S. 169, 180 (1972) (whether Central Connecticut State College could constitutionally deny recognition to a local chapter of the SDS depended upon College’s ability to demonstrate that the group posed a substantial threat of material disruption to the campus in violation of campus rules).  Although speech in nonpublic forums may be regulated so long as that regulation is viewpoint-neutral, speech in traditional or designated public forums is less easily restricted.  Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989); Arkansas Educational Television Commission v. Forbes, 523 U.S. 666, 677 (1998).  Although government officials can impose reasonable restrictions on the time, place or manner of protected speech, content and viewpoint-based restrictions are presumptively unconstitutional.  R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992).  Any restrictions imposed must further a compelling state interest and be narrowly tailored to serve that interest.  Arkansas Educational Television Commission v. Forbes, supra, at 677. 

The government may, however, restrict speech if it falls into one of the following categories: obscenity[2], defamation,[3] or fighting words.  R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992).  Fighting words are those words that tend to incite an immediate breach of the peace.  UWM Post v. Board of Regents of the University of Wisconsin, 774 F.Supp. 1163, 1170-71 (E.D. Wis. 1991).  They must go beyond merely breaching decorum; they must provoke the addressee to fisticuffs.  Id.  So-called “fighting words ... which by their very utterance  . . .  tend to incite an immediate breach of the peace,” are not protected.  Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).  The Supreme Court reasoned that fighting words are not protected because their “slight social value as a step to truth . . . is clearly outweighed by the social interest in order and morality.”  Id. 

However, it is important to note that words which are merely offensive to others are not excepted from constitutional protection.  School officials may not prohibit or restrict protected speech simply “to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.”  Tinker, 393 U.S. at 509.  A university may not proscribe speech “simply because it [is] found to be offensive, even gravely so, by large numbers of people.”  Doe v. Michigan, 721 F. Supp. 852, 863 (E.D.Mich. 1989).  This principle acquires “a special significance in the university setting, where the free and unfettered interplay of competing views is essential to the institution’s educational mission.”  Id.; see also, IOTA XI Chapter of Sigma Chi Fraternity v. George Mason University, 993 F.2d 386, 392 (4th Cir. 1993) (expressly applying the standards set out in R.A.V. to the higher education setting and holding unconstitutional sanctions against a university fraternity for a racially offensive ugly woman contest on the ground that university officials may not impose sanctions because of the university's disapproval of the ideas expressed).  

In Papish v. Board of Curators, 410 U.S. 667 (1973), a graduate student at the University of Missouri, who was a member of the staff of a publication called the “Free Press Underground,” distributed an edition of the paper which contained, on the front page, a political cartoon depicting policemen raping the Statue of Liberty as well as an article entitled “Motherfucker Acquitted,” which discussed the trial and acquittal of the leader of an organization called “Up Against the Wall, Motherfucker,” also known as “The Motherfuckers.”  The student was expelled from the University for violating a university by-law prohibiting “indecent conduct or speech.”  The United States Supreme court determined that the University was required to reinstate the student, unless it could demonstrate that she had been expelled for academic reasons.  The court stated that “the mere dissemination of ideas – no matter how offensive to good taste – on a state university campus may not be shut off in the name alone of ‘conventions of decency’.”  Papish, at 670.    

Attempts to regulate hate speech which does not rise to the level of “fighting words” have been generally unsuccessful.  An attempt by the University of Michigan to enact a policy addressing discrimination and discriminatory harassment on campus failed to survive constitutional scrutiny.  See, Doe v. Michigan, 721 F. Supp. 852 (E.D. Mich. 1989).  In response to what the University perceived as an increase in racial intolerance and harassment on campus, it enacted a policy which subjected students to discipline for certain stigmatizing or victimizing behavior.  The University’s Office of Affirmative Action issued an interpretive guide to the policy, which provided examples of sanctionable conduct including distribution of a flyer containing racist threats in a residence hall, a male student remarking that women are not as good as men in a particular field, and white students confronting and racially insulting a black student.  The guide further instructed students that they were considered harassers under the policy when they told jokes about gay men and lesbians or displayed a confederate flag.  The District Court determined that the policy was constitutionally infirm and enjoined its enforcement.  In  R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), a city ordinance which  prohibited fighting words that insulted or provoked violence on the limited bases of “race, color, creed, religion or gender” was determined to be unconstitutional because it prohibited hate speech only on certain subjects.       

Clearly, University officials may constitutionally prohibit or restrict protected speech that “causes or threatens material and substantial interference with a school’s educational environment.”  Barber v. Dearborn Public Schools, 386 F.Supp.2d 847, 853 (E.D. Mich. 2003) (see also Tinker, 393 U.S. at 504; Healy, 408 U.S. at 189 (incorporating the standard from Tinker into the higher education setting).  They must, however, demonstrate more than “an unsubstantiated fear or apprehension of such a disruption or interference.”  Barber, 386 F.Supp.2d at 856 (holding fear unsubstantiated where t-shirt depicting President Bush as an international terrorist only prompted comments from one student and one teacher and where there was no concern that the student would attack or harm the student wearing the t-shirt).

Moreover, “[i]t has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidence, or carried out by means of language, either spoken, written, or printed.”  State v. Roesch, 1995 Conn.Super. LEXIS 1751 (1995) (citing Cox v. Louisiana, 379 U.S. 536, 555 (1965)).  Under Connecticut law, harassment may be prosecuted criminally but, at a minimum, there must be proven intent to “harass, annoy or alarm . . . in a manner likely to cause annoyance or alarm.”  Conn. Gen. Stat. §53a-183(a)(2).  The intent of the  statute is “to criminalize repeated, intentionally vexatious conduct that is highly annoying to a reasonable person,” conduct which would engender, in a reasonable person, “a chronic or continual annoyance, a deep feeling of vexation or provocation, or a feeling of anxiety prompted by threatened danger or harm.”  Id.  Harassment based on bigotry or bias may be prosecuted criminally but, at a minimum, there must be proven intent to intimidate or harass because of actual or perceived race, religion, ethnicity, disability, sexual orientation, or gender identity or expression and the individual being prosecuted must have either destroyed or defaced property or threatened to do so and there must be reasonable cause to believe that the threatened act will occur.  Conn. Gen. Stat. §53a-181l (2005); see also Conn. Gen. Stat. §52-571c (providing for a civil cause of action in the event of a violation of section 53a-181l). 

The University Press
Unlike private institutions, where the relationship between the institution and the student press is primarily a contractual one, the relationship between a public institution and its student press is protected by the constitutional guarantees of freedom of the press and of association.  Kaplan and Lee, The Law of Higher Education, 4th Ed., at 1096 (2006).  The constitutional right to a free press protects student publications from virtually all intrusions by public institutions upon their editorial discretion.  Id., at 1097.  As the United States District Court for the Fourth Circuit stated in Joyner v. Whitting, 477 F.2d 456, 460 (4th Cir. 1973):

            It may well be that a college need not establish a campus newspaper, or if a paper has been established, the college may permanently discontinue publication for reasons wholly unrelated to the first Amendment.  But if a college has a student newspaper, its publication cannot be suppressed because college officials dislike its editorial comment . . .  .  Censorship of constitutionally protected expression cannot be imposed by suspending the editors, suppressing circulation, requiring imprimatur of controversial articles, excising repugnant materials, withdrawing financial support, or asserting any other form of censorial oversight based on the institution’s power of the purse.

Id., at 1100-1101.  Neither may an institution of higher education halt publication of an issue of a student publication because it contains articles which are arguably in bad taste or may bring disrepute upon the institution.  Id., at 1101 (discussing Bazaar v. Fortune, 476 F.2d 570, rehearing, 489 F.2d 255 (5th Cir. 1973)). 

In a case arising from a situation similar to that which recently occurred at CCSU, the Eighth Circuit Court of Appeals reiterated that a public university may not constitutionally take adverse action against a student newspaper, such as withdrawing or reducing the paper’s funding, because it disapproves of the content of the paper.  In Stanley v. Magrath, 719 F.2d 279 (8th Cir. 1983), the student newspaper published a “Humor Issue,” “styled in the format of sensationalist newspapers, [which] contained articles, advertisements, and cartoons satirizing Christ, the Roman Catholic Church, evangelical religion, public figures, numerous social, political, and ethnic groups, social customs, popular trends and liberal ideas.  In addressing these subjects, the paper frequently used scatological language and explicit and implicit references to sexual acts.”  Stanley, 719 F.2d at 280.  The publication generated “vehement criticism.  Members of the Board of Regents and University administrators received numerous letters deploring the content of the ‘Humor Issue’ from church leaders, members of churches, interested citizens, students, and legislators, who in many cases were responding to the complaints of constituents.”  Id.  The Regents established an ad hoc committee to review the concerns expressed and consider the “appropriate mechanism for circulation and financial support for the [paper].”  Id.

The committee recommended that the Regents take no action at that time to change the funding of the paper (university counsel having opined that such action could be viewed as punitive action in violation of the First Amendment), but suggested that the fees issue be left to the normal funding procedure, under which funding recommendations would be made the following year.  Id., at 281.  The following year, the President recommended, and the Regents adopted, a refundable fee system, permitting objecting students to obtain a refund of that part of the service fee allotted to the student publications. [4]   

The former editors of the student newspaper brought suit, claiming that the decision to institute the refundable fee system was in response to the publication of the “Humor Issue” and thus violated the First Amendment.  Id., at 282.  The Court agreed, stating that “[a] public university may not constitutionally take adverse action against a student newspaper, such as withdrawing or reducing the paper’s funding, because it disapproves of the content of the paper”.  Id. (citations omitted).  The First Amendment prohibits an institution from taking adverse action against a student newspaper “because the contents of the paper are occasionally blasphemous or vulgar.”  Id., at 283 (citations omitted). 

Clearly, although a public university may alter the funding mechanisms for student publications, it may not do so for reasons related to the publication’s content.  Id., at 1104.  See also,  Joyner v. Whiting, supra (termination of university funding of student newspaper which printed articles advocating segregation and maintenance of an all-black university violated students’ First Amendment rights).  Nor do objecting students have any more right to challenge the allocation of mandatory student fees to a student newspaper which publishes articles which they find offensive than they have to challenge allocations to other student groups which express viewpoints which they find offensive.  The Law of Higher Education, at 1098.  

Whether a university may fire the editor of a publication largely depends upon the nature of the publication.  “Presumably, if a public institution chose to operate is own publication (such as an alumni magazine) and hired a student editor, the institution could fire that student if the technical quality of her or her work was inadequate.” Id., at 1101-1102.   However, “special circumstances must be present to give a university the right to control student publications, for ‘once a University recognizes a student activity which has elements of free expression, it can act to censor that expression only if it acts consistent with First Amendment constitutional guarantees. . .  .  The courts have refused to recognize as permissible any regulations infringing free speech when not shown to be necessarily related to the maintenance of order and discipline within the educational process.’  Bazaar v. Fortune, 476 F2d 570, 574-575, rehearing en banc, 489 F.2d 225 (5th Cir. 1973).”  Schiff v. Williams, 519 F.2d 257 (5th Cir. 1975) (president’s firing of editors of university paper on basis of poor quality of the publication violated First Amendment). However, “freedom of the press enjoyed by students is not absolute or unfettered.” Joyner v. Whiting 477 F.2d 456, 461 (4^th Cir. 1973), and student editors cannot publish articles that will incite or produce imminent lawless action or speech that is thoroughly enmeshed with unlawful conduct.  A university has the heavy burden of proving that the administration reasonably foresees substantial interference or disruption with school activities.  Id.  Finding a paper’s content abhorrent or contrary to the university’s policies is insufficient to meet this burden.  Id., at 462.   

Recognition of a student organization may not be conditioned on standards which violate the First Amendment or other constitutional safeguards.  The Law of Higher Education, at 1052.  The right to freedom of speech and of association “may not be circumscribed by the federal or state governments, or any of their subdivisions or agencies, except upon a showing that a substantial or compelling and legitimate governmental interest requires an interference with the right.”  16A Am Jur 2d Constitutional Law § 542.  “Freedoms such as [the freedom of speech and of association] are protected not only against heavy-handed frontal attack, but also from being stifled by more subtle governmental interference."  Bates v. City of Little Rock, 361 U.S. 516, 523 (1960).  See also Sweezy v. New Hampshire, 354 U.S. at 263 (Frankfurter, J., concurring in result).”  Watkins v. United States, 354 U.S. 178, 197 (1957).”  Healy v. James, 408 U.S. 169, 183.  Thus, the imposition of a requirement that students wishing to join the staff of the Recorder undergo diversity or sexual harassment training, if not imposed upon the student body at large, may be determined to impermissibly impede upon those students’ constitutional right of free association.  The imposition of such a training requirement could also be found to be retaliatory action in violation of their right to freedom of speech.