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Belmont Law Review

Abstract

In the essay, the authors examine the permissibility of student speech zones under the First Amendment. Related to this discussion, the essay also considers recent state legislative efforts to prohibit public colleges and universities from enforcing such campus speech zones. The authors are supportive of legislative measures related to speech zones, but several provisions in proposed state laws and model legislation go beyond this issue and would potentially undercut student free speech rights and unduly interfere with institutional autonomy to manage and respond to issues involving speech and expression on campus. Instead, legislators should exercise restraint when it comes to campus speech laws and not become overly intrusive in how public colleges and universities manage and respond to speech issues on campus, such as when disciplinary measures are warranted for disruption of a campus speaker by a student or when campus leaders make public comments on behalf of the institution in response to a controversial issue on campus. Before considering legal standards and debates related to the (im)permissibility of speech zones for students in open campus areas, the authors in Part I first discuss several factors that influence our positionality in how we approach current debates, legal and otherwise, over free speech issues in higher education. Next, Part II provides overall context regarding key legal standards that courts have used to define student speech rights and institutional authority in relation to open campus areas. As discussed in this section, courts have often turned to forum analysis to provide the legal standards applicable to open campus spaces and student speech. The section considers how courts have not always been consistent regarding how to define the type of forum at issue and the accompanying legal standards. As covered in Part III, legal decisions reveal multiple courts are skeptical of institutional speech regulations deemed overly restrictive as to student speech in open campus areas. Part IV discusses how student speech cases provide an additional legal lens to evaluate student speech rights in open campus areas in addition to forum standards. Even as courts sort out college students’ First Amendment rights to access open campus areas, as considered in Part V, multiple states have moved to enact laws to prohibit them. In conclusion, the final Part of the essay contends that trends against the use of speech zones in relation to students represent a salutary development that pushes institutions to live up to their intellectual commitments to students’ free speech. Even so, other trends, such as proposals to force public colleges and universities to punish students who disrupt the speech of others, are too intrusive on institutional autonomy.

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