Viewpoint Discrimination at Public and Private Universities: An Attack on the First Amendment?

Viewpoint Discrimination at Public and Private Universities: An Attack on the First Amendment?

Free speech. It is a fundamental right.  It is the right to express your opinion, engage in debate and advocate for your rights.  It is the first amendment to our Constitution and it is under attack in the most unlikely of places—public and private universities across the country.  Implicit in the right to free speech is the right to have access to all viewpoints and the right to challenge speech or expression that you find offensive by exercising your own free speech rights.   Ideally, these expressions should be delivered with civility and respect–something that seems to have gotten lost in the current political landscape.

The First Amendment does not protect us from being offended or feeling uncomfortable with opposing views.  This was confirmed in Matal v. Tam 582 U.S. (2017), the United States Supreme Court struck down the so-called disparagement provision of the Lanham Act, 15 U.S.C. § 1052(a), on the basis that the law constitutes unlawful viewpoint discrimination.  In the majority opinion Justice Alito stated that “the idea that the government may restrict speech expressing ideas that offend…strikes at the heart of the First Amendment.”  Justice Kennedy, who wrote separately for four justices, stated “a law found to discriminate based on viewpoint is an egregious form of content discrimination, which is presumptively unconstitutional.”

Administrators at public universities across the country are under scrutiny for their event policies that dictate the time, location, access and security for speakers and other events.  There has been a lot of debate recently as to whether these policies are administered in a consistent manner or are forms of viewpoint discrimination geared towards restricting conservative views, in violation of the First Amendment.  Two conservative student groups have filed a lawsuit against U.C. Berkeley alleging that their policies are too subjective and have been selectively enforced to limit speakers with conservative political views.  U.C. Berkeley claims these restrictions are necessary for events deemed “likely to interfere with other campus functions or activities” and that they do not discriminate against speakers invited by student organizations based upon viewpoint.” U.S. District Judge Maxine Chesney in San Francisco denied U.C. Berkeley’s motion to dismiss and ruled that the lawsuit can proceed.

Citing security concerns, University of Connecticut officials limited public access to Ben Shapiro’s speech, entitled “White Privilege, Microaggressions and other Leftist Myths.”  They took it one step further when the Chief Diversity Officer sent an email to the students stating:  “We understand that even the thought of an individual coming to campus with the views that Mr. Shapiro expresses can be concerning and even hurtful and that’s why we wanted to make you aware as soon as we were informed.” She also offered preemptive counseling services prior to the event and encouraged students to “please utilize the many campus resources available to you should you want to talk through your feelings about this issue.”  Does warning students that certain speeches or opinions may trigger or upset them and offering counseling and other safe spaces to deal with the trauma of being offended rise to the level of viewpoint discrimination?

Suggesting to students that they may be harmed by the mere thought of hearing a particular speech or viewpoint, seems to go too far and is arguably a disservice to the students.  The world is not always a safe place.  Students will be confronted with opinions and views that they may not agree with every day, especially if they choose a career in the law.  Instead of using fear to discourage students from listening to alternate views, students should be encouraged to consider all viewpoints and to express their opinions and to challenge viewpoints that they disagree with in a civil and respectful manner.

The faculty at colleges have also come under attack when they express opinions that are not supported by the majority.  One example, widely discussed in the press, is Amy Wax, a tenured law professor at University of Pennsylvania School of Law who has been under fire for opinions she expressed in a 2017 op-ed article she co-authored in the Philadelphia Enquirer titled “Paying the Price for the Breakdown of the Country’s Bourgeois Culture.” In response to this article, 33 of Professor Wax’s colleagues authored an open letter in the Daily Pennsylvanian.  The letter acknowledges that Professor Wax has “every right to express her opinion publicly free from legal sanction thanks to the First Amendment,“ but “Wax’s right to express her opinions does not make her statements right, nor insulate her from criticism.  We categorically reject Wax’s claims.”  That was it.  They did not offer any facts to back up their claim that her statements were “wrong” nor did they offer any actual criticism of her position.

Shortly after the open letter was printed, the law school dean asked Wax to take a leave of absence next year.  The dean explained that he was getting “pressure” to banish her for her unpopular views and hoped that her absence would put an end to the controversy.  Professor Wax, who has tenure, is still at the university and continues to exercise her right to free speech.  While public universitys’ policies must adhere to the U.S. Constitution, private colleges, such as University of Pennsylvania, are bound only by the free speech guidelines they codify in their student handbooks and are not subject to First Amendment protections.  How are these policies, once adopted, enforced? Does this attempt to silence Wax for her unpopular opinions constitute a form of viewpoint suppression? Once a school adopts a policy for expression, should it be held to the same standards as the First Amendment? While these are not purely legal questions, they are moral and/or philosophical questions that should be considered.

As attorneys, we recognize the value of free speech.  We live in a world of dissent and our days are spent arguing over different opinions and interpretations of facts.  While it is disturbing that the institutions entrusted with educating today’s youth may be limiting students’ exposure to alternative viewpoints, we should be encouraged that the Supreme Court continues to protect this fundamental right.