Discussion centers on First Amendment rights at universities
Speakers discussed the First Amendment rights of public universities versus private universities during a panel discussion, “Extremism in a Civil Society,” hosted by the University of Houston Law Center and the Anti-Defamation League-Southwest on Friday.
Erwin Chemerinsky, founding dean of the University of California-Irvine’s School of Law and Frederick M. Lawrence, President of Brandeis University, discussed six principles of the First Amendment and how they applied in specific Supreme Court cases.
In one example, they used the court case Phelps v. Snyder, in which Patrick Snyder, the father of fallen marine Matthew Snyder, sued Westboro Baptist Church for intentional infliction of emotional distress after members of the church picketed outside the marine’s funeral in Maryland.
The court ruled in favor of Fred and Margie Phelps, founders of the church, because even though their message was extremely offensive, they were not disruptive during the services and were legally on public sidewalks about 1,000 feet from the funeral, and at no time during the actual services could Snyder read what the signs said.
Regardless of how offensive their anti-gay and anti-lesbian messages may be, Chemerinsky argued, the Westboro Baptist Church’s right to protest was protected by the First Amendment.
“There’s no principle to the First Amendment, where the government can punish speech or hold it liable just because it’s offensive, even deeply offensive,” Chemerinsky said.
Another one of Chemerinsky’s principles centered on how “generally content-based restrictions of speech are not allowed unless they achieve a compelling government interest.”
Based on this principle, it is not up to the government to pick which messages can or cannot be heard based on its viewpoint or subject matter; the government cannot allow pro-war demonstrations without allowing anti-war demonstrations.
His main example of this was the Supreme Court case, Brown v. Entertainment Merchants Association, which involved a California law that made it a crime to sell or rent violent video games to minors without parental consent.
Because there was no proof that playing violent video games caused violent behavior, ruling against it would be a content-based restriction of speech.
This content-based restriction also applies when a public university allows student groups to use school facilities, as long as there are not religious speakers involved.
Chemerinsky said that because the First Amendment applies to only the government, public universities like UH are required to comply by the Constitution and private entities such as Rice University are not. Additionally, the first of Chemerinsky’s principles is that freedom of speech simply means that the government cannot tell anyone to be quiet.
In summer 2007, the Los Angeles Times reported that Chemerinsky was the front-runner to be chosen dean of the University of California-Irvine. He said he immediately began to receive emails and phone calls asking if he knew that UC-Irvine was an anti-Semitic campus.
“This raised a great concern,” Chemerinsky said. “I learned that what it was about was that every year in late spring, the Muslim Student Union on campus would have a week of speakers and demonstrations.
“They would often bring onto campus individuals who would say anti-Israeli things, anti-Jewish things. Some believed that because the campus allowed the speakers to be present, that made the campus and its administration anti-Semitic, whereas the campus had no alternative but to allow the Muslim Student Union to bring these speakers. Any attempt by the campus to exclude them would violate the First Amendment, and campus officials knew this.”
On the other hand, if a similar presentation was planned at a private school such as Brandeis University, the school would not be constitutionally required to host the event.
“We are not bound by case law or the First Amendment,” Lawrence said.
Cherminsky summarized his six principles by connecting the discussion to the Occupy Wall Street protests, stating that though protestors have a right to use some government property for free speech purposes, the government can still regulate that speech based on three criteria.
“I received a lot of calls from reporters in the last month or two about whether or not cities have to leave open parks for the (Occupy movements), and my answer always is (that) the law is clear: There has to be a place where demonstrators can go, but there should be time, place and manner restrictions,” Cherminsky said.
“The Supreme Court said, for example, in a case called Clark v. Community for Creative Nonviolence, that the government has the right to keep people from sleeping in a park as a form of protest. The government doesn’t have to allow the movements to permanently occupy 24 hours a day, you have the right to be in the park from dawn to dusk, but you can’t sleep there.”