Rebecca Weisberger
You don’t need a college level political science class to know about the First Amendment. People are taught at a young age that freedom of speech is guaranteed. Among its guaranteed freedoms, the American government cannot censor what its citizens say, nor can the government prevent citizens’ assembly. How this plays out at public universities, however, is less black and white.
Free speech is relatively indivisible, meaning that most forms of speech are allowed under the First Amendment even if they are offensive or hostile. Homophobic, mysogynist, anti-Semitic, and transphobic speech are all allotted equal protection. However, there are some categories of speech that are not protected, or are protected to a lesser degree, under the First Amendment. Speech that falls into this grouping includes obscenity, defamation, and true threats. This second case of defamation is rather difficult to prove.“Fake news” does not cut it; the false information being disseminated must show “reckless disregard for the truth,” meaning disregard for the falsity of the statement by a person who is highly aware of its probable falsity and the falseness is proven to cause harm, as ruled in Garrison v. Louisiana in 1964.
Universities can be a breeding ground for contentious protests as educated young adults from diverse backgrounds begin to step into their power. Some of the most notable protests on college campuses occurred in the 1960s in reaction to the Vietnam War. In 1965, Mary Beth Tinker and a handful of other students at a public high school in Des Moines decided to wear black armbands to protest the war, but were promptly expelled for their demonstration. On February 24, 1969, the US Supreme Court in Tinker v. Des Moines ruled that the First Amendment applied to public schools and school officials cannot censor free speech unless it is disruptive to the educational process. The precedent set, explicitly extended to public higher education per the US Department of Education’s recently-released regulations, still holds true today, as groups in public schools are allowed to rally behind any cause they see fit so long as they do not cause a disruption to learning.
Following the Kent State shooting, Harold Omand Spence, a student at the University of Washington, hung an American flag adorned with a peace symbol made of tape from his dorm window. He was arrested for breaking the state law that forbade any figure from being on an American flag. What began as a conversation on flag desecration quickly transformed into a debate about freedom of expression. On June 25, 1974, the Supreme Court decided in Spence v. Washington that flag desecration as an act of expression is protected by the First Amendment. The broader implications of this became known as the Spence Test, which states that expression, in order to be protected under the First Amendment, must intend to convey a particular message and there is a high likelihood that the majority of people viewing the message will understand it.
The case of Papish v. Board of Curators of the University of Missouri, as decided by the United States Court of Appeals for the Eighth Circuit on March 19, 1973, highlights how the First Amendment on college campuses can protect expression that some find deeply offensive. An underground student newspaper published an article that the school considered to violate its standard of decency and the student caught distributing the paper was expelled. The Court of Appeals ruled that, regardless of how offensive the ideas published were, on a college campus these ideas cannot be shut down on the grounds of being indecent.
As these cases demonstrate, upholding the First Amendment is not always popular. Groups that the majority of a university’s student population oppose can be allowed to protest and set up displays on campus. An example of this at the University of North Carolina-Chapel Hill is the Genocide Awareness Project, an anti-abortion group that annually commandeers a substantial area on the Quad to spread their pro-life agenda equating abortion to genocide and using controversial tactics to convince students not to get abortions.
Many students on the University’s campus have qualms with the Genocide Awareness Project. Last year, the Daily Tar Heel (DTH) published an editorial condemning the display. The DTH wrote that the display was “unnecessary, lacking in educational value and harmful to students.” Yet, as Spence, Papish, and even Tinker demonstrate, the University is likely not able to remove the display on First Amendment grounds, despite this condemnation.
The Genocide Awareness Project disseminates inaccurate statistics and staged photographs on campus to push its pro-life agenda. First, the Genocide Awareness Project makes up statistics to cast abortion as a common action. In their manifesto “Why Abortion is Genocide” by Gregg Cunningham, the group claims that one in three pregnancies, roughly 33%, are aborted, without citing any sources for that figure. However, the Centers for Disease Control and Prevention (CDC) says that “[t]he abortion rate for 2016 was 11.6 abortions per 1,000 women aged 15-44 years, and the abortion ratio was 186 abortions per 1,000 live births.” Second, the Genocide Awareness Project displays large, graphic photographs that are meant to depict aborted fetuses. The only verification that the photographs are unaltered is from a single physician/attorney, Anthony Levantino. The book Articles of Faith by Cynthia Gorney explains that many anti-choice groups actually stage the photographs displayed by using stolen body parts and natural miscarriages. The Genocide Awareness Project then shows these grotesque photographs to college students attempting to pass them off as mangled abortions. However, unless any of the public universities the Genocide Awareness Project visit are willing to go to court to argue that this fake news causes legitimate harm and demonstrates “reckless disregard for the truth,” it cannot be the reason for blocking the group from coming to campus.
The State of North Carolina is particularly committed to upholding freedom of speech on its public university campuses and in 2017 passed House Bill 527, titled “An Act to Restore and Preserve Free Speech on the Campuses of the constituent Institutions of the University of North Carolina.” This bill directed the Board of Governors of the University of North Carolina to develop a policy that allows access to campus for purposes of free speech and expression in accordance with First Amendment jurisprudence, subject to reasonable time, place, and manner restrictions. Under this statute, universities can mold their own free speech and facilities use policies, but they must uphold the First Amendment. Furthermore, the bill states that the institutions must be open to any speaker whom students, student groups, or faculty members have invited.
For UNC-Chapel Hill, the Facilities Use Policy currently states that non-University affiliated groups coming onto campus can use any facility so long as they do not disturb the conduct of University activities. Since the Genocide Awareness Project display is set up on the grass and does not block foot or bicycle traffic, it is not necessarily disturbing the conduct of activities. Therefore, the University, under the existing Facilities Use Policy, has no grounds to prevent the Genocide Awareness Project from putting up their display on the Quad.
The University of Oregon, another campus the Genocide Awareness Project visits, has a Facilities Scheduling Policy quite similar to UNC-Chapel Hill’s. The Oregon policy states that university and non-university entities alike have the ability to schedule use of a university facility. Both the UNC-Chapel Hill and Oregon policies leave the university faculty, staff, and students virtually powerless in preventing unwanted groups from gathering on campus. On the other hand, NC State University and the University of California-Berkeley have taken a different approach. NC State’s Use of University Space Policy requires all non-university groups’ use of space to be sponsored by a university group, student group, or individual. UC Berkeley has a similar policy, as non-university groups must be invited by recognized campus organizations.
If UNC-Chapel Hill adopted a version of either of these policies, the Genocide Awareness Project would no longer be allowed on campus unless a university or student group was willing to sponsor their presence. Protecting First Amendment freedoms frequently breeds controversy, particularly on university campuses. The NC State and UC Berkeley policies do not limit freedom of speech, but do take steps to ensure that non-campus affiliated groups coming to campus are an accurate reflection of at least one member of the university community.