Rod Smolla: Most off-campus Internet speech will be ruled beyond the reach of public schools

By Jonathan Peters
This is the eleventh in a series of interviews I’m conducting with lawyers and scholars who’ve made a mark on freedom of expression.  Follow me @jonathanwpeters on Twitter.

Rod Smolla is president of Furman University. Previously, he was dean of the Washington and Lee School of Law, dean of the University of Richmond School of Law, and director of the Institute of Bill of Rights Law at the College of William & Mary. Smolla is an expert on free expression and academic freedom, and he has argued before state and federal courts around the country, including the U.S. Supreme Court, where he won the landmark case Virginia v. Black. Smolla is the author of numerous books, among them: “Free Speech in an Open Society,” which won the William O. Douglas Award as the year’s best monograph on free expression; “Deliberate Intent,” which was made into a movie by the FX cable network; and “The Constitution Goes to College,” which explores the constitutional principles that shaped American higher education.

What’s the most serious threat today to free expression?

There’s no great threat. First Amendment doctrine is very stable. The Supreme Court has been extraordinarily protective of expression in the general marketplace, and its commitment has been reaffirmed time and again in cases involving highly offensive speech.

There will always be problems on the edges. There are pockets of society that the Court has walled off, ruling that people in those pockets don’t get the same protection as people in the general marketplace. For example, there are curtailments of expression for government employees and for students and teachers in public schools.

Overall, though, there’s robust protection in the general marketplace, particularly with regard to content-based restrictions.

Could you tell me more about those pockets? The areas where people don’t receive the robust protections they would receive in the general marketplace?

I’m thinking mainly of government employees and of public school students. Frederick v. Morse and the latest series of public school speech cases showed that the Court is relatively sympathetic to the needs of schools to regulate the speech of their students. In those settings, which are outside the public square and forum, the Court is open to a different vision of free speech. But in the general marketplace, the protections are robust.

Earlier this year, the Sixth Circuit extended the Hazelwood case to public colleges and universities. Judge Sutton, writing for the panel, said, “The Hazelwood test … arose in the context of speech by high school students, not speech by college or graduate students. But for the same reason this test works for students who have not yet entered high school, it works for students who have graduated from high school. The key word is student.” Do you think, as a university president, the Hazelwood standard should apply in the college or university setting?

The key dividing line is not between college and high school. The key dividing line is whether the speech occurs in a public forum or whether the university is acting as impresario – say, as a publisher of a newspaper. It shouldn’t matter whether the setting is a high school or a college or a university.

A teacher couldn’t wear the jacket from Cohen v. California [bearing the phrase “Fuck the Draft”] inside the classroom in a high school or in a college. A college would be entitled to say that a professor could wear the jacket on the college green but not in the classroom. Likewise, a high school would be entitled to say that a teacher could wear the jacket in a city park, a public forum, but not in the classroom.

Why the distinction between inside the classroom, outside the classroom?

A classroom is not a public forum, and speech there operates by a different set of rules. A professor must curtail her language because of Title IX, Title VII, the educational mission of the university, and so on. A professor is carrying out a professional function, and she is not speaking in her capacity as a citizen.

A related issue: the Tinker case, which says K-12 public schools may restrict speech that causes a substantial disruption to normal school activities. I’m reading more and more about students who have been disciplined for their speech online and off-campus, on the theory that the speech has created a substantial disruption at school. In the Tinker context, what’s your sense of where the schoolhouse gate is located today?

That’s a great question, and it has yet to be addressed by the Supreme Court. I suspect that most off-campus Internet speech will be ruled outside the jurisdiction of public schools. It would have to be a strong case to justify disciplining a student because of speech on Facebook.

What I mean by that is I can see officials having the jurisdiction to discipline a student for bullying or for targeting another student online. If I’m a student and use Facebook to harass another student, then the principal probably would have the capacity to intervene. But I suspect that in general the courts will treat most Internet speech as beyond the reach of the school.

Shifting gears. In the last year and a half, academic freedom has collided with freedom of information at several universities. For example, in Wisconsin the state Republican party sent a records request to the University of Wisconsin-Madison, asking for the emails of history professor Bill Cronon. And in Virginia, the American Tradition Institute took the University of Virginia to court to compel it to release records related to the climate scientist Michael Mann. In the university setting, how should an interest in open government be balanced with an interest in academic freedom?

I don’t have it all sorted out in this area, but at a state university, a wise principle, whether it’s compelled or not by the First Amendment, is to treat the expression of faculty members as relatively inviolate and to guard against efforts to intimidate faculty by exploring their expression, including their emails.

It’s a harder issue, at least under current doctrine, whether there is a First Amendment right to resist those explorations. Professors at public universities don’t like to think of themselves as government employees subject to public records requests, but they are government employees. And they very often fall within the “covered persons” section of those statutes.

Academic freedom: Do you conceive of it as an individual right, an institutional right, or elsewhere on that spectrum?

As a matter of First Amendment doctrine, I don’t think there is a right of academic freedom that is distinct from the freedom of speech. There is not an implicit, unique or special right that universities or professors enjoy that is different from the rights of other citizens.

Think of journalists. In most respects, the Supreme Court has been unwilling to grant journalists special rights. They get the expressive rights that we all do. Likewise, when the Supreme Court has been invited to create special rights for professors or universities, the Court has declined.

The central issue, then, are the speech rights, rather than the academic freedom rights, of professors and universities. And as a matter of free speech doctrine, the issue is pretty straightforward.

First, public universities have no speech rights as institutions. So it’s not possible, for example, for the University of Texas to assert a First Amendment right against the government. Why? The university is the government.

Second, private universities have speech rights as institutions. So it’s possible, for example, for my school, Furman University, to assert a First Amendment right against the government. Why? We are a private entity.

Third, you invert things with respect to professors. Public universities have no speech rights as institutions, but their professors have speech rights against their universities, i.e., government actors. Meanwhile, private universities have speech rights as institutions, but their professors don’t have speech rights against their universities, i.e., non-government actors. Underlying these distinctions, of course, is the state-action doctrine.

You argued the case Virginia v. Black before the Supreme Court, which addressed what constitutes a true threat. College campuses seem to struggle with the concept of true threats. At Colorado College, two students violated a provision of the student conduct code regarding threats of violence after they published a satirical flyer about weapons. And at Hamline University, a student was suspended for writing, in two private emails, that respecting concealed carry rights on campus would prevent school shootings. How should schools draw lines in cases like those? I mean, as a university, how do you not sweep so broadly that you treat satire and true threats the same way?

To me, it’s clear that the government can punish only true threats. But the law is still working itself out regarding the confines of true threats. In general, satire does not meet the definition of a true threat. So my view is that there may be overreaching in these areas, in terms of offensive speech and hate speech in a campus setting.

The harder question is whether there are areas in a university setting where material that does not reach the level of true threats may be banned nevertheless because the First Amendment does not apply with full force in that setting. The answer to that question must be yes. So the opposite of Virginia v. Black would apply.

By tradition in American law, you do not have to prove a true threat to restrict speech as sexual or racial harassment under Title VII, consistent with the concept of a hostile workplace or environment. That means if an employer repeatedly engaged in harassing speech, creating a hostile environment for employees, the employer could be sued for violating Title VII—even if the speech didn’t meet the standard of a true threat. The rationale is that the employment setting falls outside the general marketplace.

That same idea has been extended to universities under Title IX. For example, if a coach repeatedly makes lurid or sexually suggestive comments to women on the soccer team, then the coach could be held to have violated Title IX—even if the speech didn’t meet the Virginia v. Black definition of true threats.

But in general there may be overreaching in these areas, especially with respect to satire and offensive speech.

Jonathan Peters is a media lawyer and the Frank Martin Fellow at the Missouri School of Journalism, where he is working on his Ph.D. and specializing in the First Amendment. He blogs about free speech for the Harvard Law & Policy Review, and he has written on legal issues for The Atlantic, Slate, The Nation, Wired, PBS, and the Columbia Journalism Review. Follow him @jonathanwpeters on Twitter. 

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