Law & the Courts

Three New Supreme Court Decisions Protect Free Speech on Campus

(Erin Schaff/Reuters)
While they do not directly involve campus speech, they should further entrench its freedom.

The Supreme Court did not hear any campus-speech cases in its just-concluded 2017–18 term, but it was still a year with several big First Amendment decisions. How will these decisions affect higher education (and courts that are currently hearing campus-speech cases)? Three of the Court’s decisions should help to clarify protections for freedom of expression and association on public-university campuses — allowing proactive universities to bolster the rights of students and faculty.

Minnesota Voters Alliance v. Mansky:
Minnesota prohibited voters from wearing political badges, buttons, or insignia inside a polling place. All states have laws similarly restricting polling-place advocacy, such as expressly advocating for a candidate next to the ballot box. But Minnesota went further. It extended the definition of “political” to prohibit any items referencing “any subject on which a political party or candidate has taken a stance” or any item “promoting a group with recognizable political views.” In practice, the poll workers had broad discretion to censor a voter’s clothing bearing even benign messages such as “Vote!” or “Support Our Troops,” and clothing that merely bore the insignia of organizations or companies with expressed political positions — from the ACLU to Ben & Jerry’s.

The Court’s decision:
The Supreme Court held that while states may limit expression in a polling place, they must “draw a reasonable line.” Minnesota election judges had such broad discretion to determine which expression was permissible that there was no real objective standard at all. The Court held that if a state restricts speech in a non-public forum, such as a polling place, the discretion provided to government officials in enforcing that restriction “must be guided by objective, workable standards,” because “without them, an election judge’s own politics may shape his views on what counts as ‘political.’”

Campus speech impact:
The Mansky decision means that universities must not only avoid viewpoint discrimination; they must affirmatively enact policies eliminating the discretion that could allow it. It is well settled that viewpoint discrimination is prohibited in student-organization recognition, student-activity funding, approval of student flyers, and similar forums on college campuses. But an open question remained about what universities must do to proactively ensure that officials cannot engage in this discrimination. In other types of government forums — for example, parade or rally permits on public streets or parks — the Supreme Court had previously required that the discretion of the decision makers must be “bridled” by fixed and objective criteria. A government’s failure to create these objective standards to limit the decision maker’s authority was itself unconstitutional because of the risk of viewpoint discrimination.

Universities will now have to ensure that administrators or student governments making decisions about student expression are guided by fixed, neutral, and objective criteria

Some attorneys have argued that this “unbridled discretion” doctrine is limited only to traditional public forums (such as public parks and streets) and does not bind universities. Thus, it was permissible for administrators to make recognition, funding, or other decisions on vague or unspecified criteria, and the burden remained on students to show that they had been discriminated against because of their viewpoint. Thus, a college could leave the decision of student-group recognition to a majority vote of a panel of students and administrators without explanation, so long as the student group didn’t have actual evidence of viewpoint discrimination against them. But the decision in Mansky eliminates any doubt that the unbridled-discretion doctrine applies in any forum, including those commonly found on campus. Universities will now have to ensure that administrators or student governments making decisions about student expression are guided by fixed, neutral, and objective criteria — protecting students from hidden viewpoint discrimination.

Janus v. American Federation of State, County, and Municipal Employees, Council 31:
Illinois, and many other states, required government employees to participate in a public-employee union. While the Supreme Court’s 1977 decision in Abood v. Detroit Board of Education held that public employees could not be forced to pay the portion of union dues used expressly for political advocacy, it allowed government to compel public employees to pay an “agency fee” to public unions and be represented by them in negotiations with the government employer.

The Court’s decision:
The Supreme Court overruled Abood, holding that the First Amendment prohibits the government from forcing public employees to join or contribute to a public-employee union. The Court’s decision is perhaps the strongest to date for the principle that government cannot require an individual to fund speech to which she objects.

Campus speech impact:
Public universities require students to pay hundreds or thousands of dollars per semester in “student activity fees.” These fees are intended to, and frequently do, fund a wide range of student groups — providing an opportunity for students to engage with varying ideas. But it is also true that the modern version of these fees was promoted by political activists who saw them as a way to fund specific political advocacy.

In Southworth v. Board of Regents, University of Wisconsin System, the Supreme Court rejected a First Amendment compelled-speech challenge to these mandatory fees. While the Court acknowledged that students were compelled to fund the advocacy of religious, political, and other views that they opposed, it upheld the Wisconsin system on the condition that the university not discriminate on the basis of viewpoint in its allocation of student fees. The Court relied heavily on Abood to support this exception to the general rule that the First Amendment forbids government from requiring citizens to pay for others’ expression.

Mansky at least places the burden on universities to demonstrate that they have strictly limited discretion over student-activity-fee allocations

After Janus, Southworth may be in question. It is noteworthy that the Court’s 49-page opinion, surveying its prior precedent, omits any mention of the Southworth exception from the rule that government may not force people to fund others’ speech. The Court’s strong decision in Janus against compelled funding of others’ speech, and overturning the Abood decision on which Southworth largely rested, may lay the groundwork for a new challenge to Southworth. Even if Southworth itself isn’t threatened, universities should examine whether their student-organization funding systems are really like the one upheld in Southworth. To the extent that a university’s student-fee allocation program directs these mandatory fees toward specific groups or tiers of student-group funding in ways that advantage certain views, they may be at greater risk. And, as noted above, Mansky at least places the burden on universities to demonstrate that they have strictly limited discretion over student-activity-fee allocations to make it more difficult for viewpoint discrimination to happen.

National Institute of Family and Life Advocates v. Becerra:
As explained by SCOTUSblog, California enacted a law that required nonprofit pregnancy centers to post certain information in their centers and in public advertising. Centers offering medical services were required to post notices informing women where they could obtain government-subsidized abortions. Centers not offering medical services were required to state that fact in their facilities and in any advertising — in up to 13 different languages. The centers argued that the law compelled them to speak, in violation of the First Amendment. California argued that the law was a permissible regulation of “professional speech.”

The Court’s decision:
The Supreme Court held that the California law violated the First Amendment’s prohibition on compelled speech. Specifically, the Court observed that it had never created any “professional-speech doctrine” as an exception to the First Amendment and expressed great doubt whether such a doctrine was consistent with the First Amendment. However, the Court held that even if some justification for such a doctrine could be found, the California law would still violate the First Amendment.

Campus speech impact:
Some professional schools and degree programs have sought to impose as speech codes the professional-ethics codes developed to apply to members of those professions. These codes are often written broadly (e.g., prohibiting “unprofessional behavior”) by voluntary professional associations and not meant to be strictly applied by government. Speech codes such as these are routinely deemed unconstitutional when drafted by universities and applied to all students. Some colleges and programs have argued that they may nevertheless enforce a professional-ethics code against students in that particular program — including its limits on “unprofessional” speech. The Court’s virtually complete rejection in NIFLA of new First Amendment exceptions, including one unique to “professional speech,” should make it more difficult for institutions to justify these professional-speech codes under the First Amendment.

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Casey Mattox Casey Mattox is the Senior Fellow for Free Speech and Toleration at the Charles Koch Institute. Find him on twitter at @CaseyMattox_

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