For the Protection Against Hate Speech or For the Freedom of Expression?

In recent years, a new trend of creating “safe spaces” has emerged on college campuses across the country. While the implementation of safe spaces varies between universities, the term is generally applied to certain areas on campus that are intended to be free from bias, potentially offensive ideas, topics of controversy, or other forms of conflict. In most cases, colleges designate specific areas intended to protect students from any potentially harmful or offensive speech that they might encounter on campus. At some universities this concept is being extended further, with entire campuses being designated as safe zones.

In 2016, the University of Chicago took a hard stance against safe spaces when it released a statement that banned and condemned safe spaces and so-called “trigger warnings,” arguing that they created isolated intellectual environments contradictory to the mission of the university.[1] The University of Chicago’s stance did not stay within campus boundaries: it became a catalyst for the debate over the legality of safe spaces at universities everywhere. The role of the First Amendment at universities has long been a widely contested topic, where school officials and members of the justice system strive to find a balance between freedom of expression and the protection of students against potentially harmful messages. Although the University of Chicago’s stance on safe spaces has not been directly involved in any legal cases, the bold statement released by the university’s dean has created a new area of contention amongst legal scholars. Some argue that the mere existence of these spaces is a breach of students’ First Amendment rights, while others maintain that university safe spaces are within the realm of constitutional limits—leaving the courts with the responsibility to decide the status of these controversial spaces.[2]

The first case set to address the intersection between college safe spaces and the First Amendment is Shaw v. Burke (2018). Plaintiff Kevin Shaw, a student at Los Angeles Pierce College in California, claims that his First Amendment right to freedom of speech was breached when his college designated its entire campus as a safe zone with the exception of a 616 square-foot “Free Speech Area”. When Shaw tried to distribute Spanish-language copies of the US Constitution in a campus plaza located outside of this “Free Speech Area,” a Pierce College administrator forced him to stop. Meanwhile, Shaw claims that he has witnessed other similar incidents where students have expressed or distributed information in which the college did not intervene. In response, Shaw has filed a lawsuit against his school under two claims: the first being that the school enforced its free speech rules “selectively and unevenly” and secondly that the college infringed on his First Amendment rights by denying him freedom of expression.[3]

The US Attorney General has subsequently filed a Statement of Interest on Shaw v. Burke, signifying that this will likely be an important case about free speech on college campuses when it is brought to trial.[4] While there haven’t been previous cases directly relating to university safe spaces, two recent Supreme Court decisions could have implications on Shaw v. Burke.[5] Though these cases address Shaw’s two claims separately, they can provide light on the Court’s potential mode of thought when hearing Shaw.

Regarding Shaw’s claim against the university for their selectivity, the Supreme Court recently ruled on the question of whether a Minnesota law preventing voters from wearing political apparel at polling places was effectively imposing “free speech zones” in Minnesota Voters Alliance v. Mansky (2018). Due to a Minnesota statute that prohibits voters from wearing political apparel to a polling place, Minnesota resident Andrew Cilek was temporarily prevented from voting when he showed up to his polling location wearing a t-shirt with a Tea Party logo.[6] However, the definition of “political apparel” is left to the discretion of election officials, which the Minnesota Voters Alliance argues has left room for viewpoint discrimination in the enforcement of this law. The Court ruled that the Minnesota statute was, in fact, in violation of the Free Speech Clause of the First Amendment, citing that the state must “draw a reasonable line” in determining “political insignia” at election places.[7]

Mansky has important implications for free speech on college campuses, including the case presented in Shaw v. Burke.[8] The Mansky decision means that university administrations must make decisions about free speech and/or the support of student groups with fixed standards to avoid viewpoint discrimination. Shaw claims that there are no specific guidelines set out for Pierce College administrators to accept or deny Free Speech Area permits. In the wake of the Mansky decision, the college would have to create a consistent code of guidelines that can be applied objectively to the permit process.

Regarding Shaw’s claim that the university denied him the right to freedom of expression, another recent Supreme Court case, National Institute of Family and Life Advocates v. Becerra (2018), addresses the issue of professional speech codes. These codes are closely linked to university speech codes that have been used to create safe spaces and free speech areas on campuses. In this case, the National Institute of Family Life Advocates (NIFLA) sought to strike down a California law that required pro-life pregnancy crisis centers to advertise publicly-funded abortion clinics.[9] NIFLA argued that the California law constitutes compelled speech and thus is not permissible under the First Amendment. The defendants maintained that the law was a legitimate regulation of “professional speech,” and thus would not violate the First Amendment. In its decision, the Court refuted the idea that the First Amendment protects the regulation of “professional speech,” which means that in the case of Shaw v. Burke and other future cases dealing with campus speech codes, it will be harder for courts to justify these speech codes.

The rulings in Mansky and NIFLA show that the Courts are leaning in favor of protecting expression, and it thus appears that in Shaw v. Burke, the constitutionality of safe spaces and university speech codes is in a dangerous position. This could impact college safe spaces across the country, minimizing the limitations of freedom of expression for many college students. While this may sound like a win for free speech on college campuses, the line between upholding the First Amendment and protecting people from hate speech or other forms of alienation is a fine one, and neither the laws nor courts have yet to properly define this line—and it is unclear if it is even possible to do so.

[1] Vivanco, Leonor, and Dawn Rhodes. "University of Chicago Tells Incoming Freshmen That It Does Not Support 'trigger Warnings' or 'safe Spaces'." Chicago Tribune. August 25, 2016.

[2] Rose, Flemming. "Safe Spaces On College Campuses Are Creating Intolerant Students." The Huffington Post. June 12, 2017. Accessed October 28, 2018.

[3] United States District Court Central District of California. “Shaw v. Burke.” January 17, 2018.

[4] U.S. Department of Justice. “Statement of Interest: Shaw v Burke.” October 24, 2017.

[5] Mattox, Casey. "Three New Supreme Court Decisions Protect Free Speech on Campus." National Review. August 14, 2018. Accessed October 28, 2018.

[6] “Minnesota Voters Alliance v. Mansky, 585 U.S. (2018)” Oyez. Accessed October 23, 2018.

[7] “Minnesota Voters Alliance v. Mansky, 585 U.S. (2018)” Oyez. Accessed October 23, 2018.

[8] Mattox, Casey. "Three New Supreme Court Decisions Protect Free Speech on Campus." National Review. August 14, 2018. Accessed October 28, 2018.

[9] “National Institute of Family and Life Advocates v. Becerra, 585 U.S. (2018).” Justia Law. Accessed October 23, 2018.

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