The Constitutional Right to Protest at Universities

The recent protests about the Israel-Hamas war at universities around the nation are drawing attention to the most basic of First Amendment rights: the ability to speak freely and assemble in public.

Unrest at universities isn’t a new phenomenon. During the Vietnam War era, protests sometimes grew violent and went beyond of the scope of permissible conduct protected by the First Amendment. In recent weeks, protesters at multiple universities have gathered at encampments, and in one situation, they occupied a building at Columbia University that also had been taken over by protestors during the Vietnam era.

What are the constitutional ground rules that determine how protestors can speak and assemble, and how the government can respond to situations that are deemed as security issues?

The Foundations of College Student Free Speech

The text of the First Amendment reads as follows:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” (Emphasis added)

The First Amendment’s Free Speech Clause restrains governments from preventing people from speaking freely unless their speech falls into several narrow categories of unprotected speech. Types of unprotected speech include defamation, fraud, obscenity, speech integral to criminal conduct, incitement of violence, true threats, and child sexual abuse material.

On the National Constitution Center’s Interactive Constitution, scholars Geoffrey Stone and Eugene Volokh explain these protections do not apply beyond government actions to restrain speech: “The First Amendment does not protect speakers, however, against private individuals or organizations, such as private employers, private colleges, or private landowners. The First Amendment restrains only the government.”

The right to assemble peacefully is related to the Free Speech Clause. “While neither ‘assembly’ nor ‘petition’ is synonymous with ‘speech,’ the modern Supreme Court treats both as subsumed within an expansive ‘speech’ right, often called ‘freedom of expression,’” note scholars John Inazu and Bert Neuborne in their Interactive Constitution essay. While few cases have come to the Supreme Court in recent years about this right, the scholars explain that “the freedom to assemble peaceably remains integral to what Justice Robert Jackson once called ‘the right to differ.’”

In general, protesters can express their personal and political opinions on campus at a public university, and take part in group actions, as long as their actions do not violate any laws, do not incite violence, and do not constitute true threats. Because public universities receive public funds, they fall under the same requirements that govern speakers on public property.

The rules for privately operated colleges and universities differ. While protesters at private schools may not have the same First Amendment rights as their public-school counterparts, these schools could be subject to Title VI of the Civil Rights Act, which “prohibits discrimination based on race, color, or national origin in programs or activities that receive federal financial assistance.” Private schools might also have their own internal school policies that purport to protect students’ free speech rights.

Supreme Court Precedents

The Supreme Court has several precedents related to free speech on campus and public property.

In Brandenberg v. Ohio (1969), the Supreme Court established the “incitement test,” which is still the rule for when inflammatory language crosses the line from being protected to unprotected. In Brandenberg, a Ku Klux Klan leader was convicted for using inflammatory words about government officials. The Court overturned the conviction, saying that such speech could be prohibited only if it the statements met a two-part test: if they were “directed to inciting or producing imminent lawless action,” and were “likely to incite or produce such action.”

In 1973, the Court applied this test in a case about college protests. In Hess v. Indiana, a group of between 100 and 150 anti-war protestors on campus at Indiana University blocked a street and were cleared from it by police. A bystander yelled, “We’ll take the [expletive] street later.” He was arrested and charged with inciting violence. The Supreme Court threw out the case, deciding the words were not directed at a person or group, and they were unlikely to “produce imminent disorder.”

In Healy v. James (1972), the Supreme Court reinforced this rule further when an anti-war group, Central Connecticut State College, denied recognition of the Students for a Democratic Society (or SDS) as a campus organization, based on their association with the national SDS group and fear of disruption to the campus. “State colleges and universities are not enclave immune from the sweep of the First Amendment,” wrote Justice Lewis Powell in his majority opinion in favor of the SDS.

The Court also defined free speech protections for words and actions that could be considered offensive. In Snyder v. Phelps, members of the Westboro Baptist Church stood on public property and picketed a soldier’s funeral. The soldier’s family sued, claiming emotional distress. In an 8-1 decision, Chief Justice John Roberts said, “given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to 'special protection' under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt.”

Time, Place, and Manner Restrictions

However, public universities can place time, place, and manner restrictions on public assemblies on campus, including the encampment of people on public property. In 1941, Chief Justice Charles Evans Hughes wrote for a unanimous Court in Cox v. New Hampshire holding that a local government had the ability to impose and enforce regulations that create order and safety for its citizens, which does not infringe upon constitutional rights. A group of Jehovah’s Witnesses challenged a fine for holding a parade on a sidewalk without a local permit. Chief Justice Hughes said the fine was permissible because if a government can “control the use of its public streets for parades or processions . . . it cannot be denied authority to give consideration, without unfair discrimination, to time, place and manner in relation to the other proper uses.”

The Court further defined these restrictions in Ward v. Rock Against Racism (1989), in a 6-3 majority opinion from Justice Anthony Kennedy. A rock music group sued New York City when the city required the band use a city-owned engineer to control the band’s volume in a concert in Central Park. Justice Kennedy said the restrictions could be allowed, but they must be content neutral, narrowly tailored to serve a significant governmental interest, and allow for ample alternative channels for communicating a speaker’s message.

In the Israel-Hamas war protest situation, public universities have used time, place, and manner restrictions to control protestor encampments on school property. Although some protestors may argue that camping is protected symbolic expression, a Supreme Court decision from 1982, Clark v. Community for Creative Non-Violence, found that such expression even as a form of protest could be limited.

In the Clark case, the National Park Service denied a request from protestors to camp in Lafayette Park and the Mall to bring attention to the plight of homelessness, citing rules requiring the area’s prior designation as a campground. The Supreme Court ruled in a 7-2 decision written by Justice Byron White in favor of the National Park Service. “Expression, whether oral or written or symbolized by conduct, is subject to reasonable time, place, or manner restrictions,” White wrote, citing the park’s camping policies as content neutral and for the objective of maintain the park grounds.

Recent situations at several colleges and universities have resulted in law enforcement actions when protesters took over buildings or refused to leave encampments, when asked, in a form of civil disobedience. Schools then asked local police to intervene. Per another Supreme Court precedent, United States v. O’Brien (1969) unlawful acts—including those involving breaking and entering or trespass—would not be protected by the First Amendment.

Scott Bomboy is the editor in chief of the National Constitution Center.