Debates about the permissibility of protests on college campuses today seem fixated on the notion of violence. Protestors say that campus authorities have no business imposing discipline or involving police to make arrests insofar as the protestors are (in their view) doing nothing more than engaging in peaceful (that is, non-violent) protest. University administrators, by contrast, defend their actions to restrict the protests and protestors as being necessary and proper to assure the safety of students, faculty, and staff.
The two sides seem to agree that openly violent protests—that is, protests in which protesters knock down, threaten in a “true threat” sense, verbally or physically harass, punch or beat (or worse) passersby or other folks who seem unsympathetic to the protestors’ causes—should be subject to sanction and that the safety of students and staff are of paramount importance. Such expressive activities—speech-motivated threats, batteries, and the like—are simply not protected expression within the meaning of the First Amendment (just as defamation is not protected expression). That much is easy.
But the real more vexing questions—ones that we try to explore in a systematic way below—are how broadly we should understand the concept of safety, and whether there are other, substantially important, interests that universities should be able to safeguard and promote alongside obvious and imminent physical freedom from injury. Our analysis is directed primarily at public universities and private colleges that seek to generally follow First Amendment mandates although they are not required to do so. Other private colleges—that do not commit to First Amendment values—may nonetheless find at least some of our analysis useful as it relates to policy choices in regulating protests.
We start with a few basic assumptions and generalizations.
First, respecting, facilitating, and even encouraging freedom of expression, including expression that reflects vehement disagreement with the policies of the administration, is an important component in the mission and activities of the university, but it is not the only important component.
Second, universities are distinct from other institutions in our society with regard to the pursuit of knowledge through open and robust inquiry and debate. That explains their recognized commitment to academic freedom—to the presentation of ideas, even provocative ideas, free from viewpoint censorship. But students and faculty have no special or greater entitlement to protest state action or institutional decisions than anyone else in this country. Their right to protest on school grounds—while important—extends no further than the right afforded to workers, parents, voters, civic groups, or anyone else to engage in similar protest activity on public property.
And third, the regulation of any expression, including protests, must be (at least at public universities) viewpoint-neutral as a formal matter and must also be enforced in a viewpoint-neutral way. As we shall see, this latter mandate is easier to articulate than it is to apply in real-world circumstances.
We now turn to more specific issues that arise in the encampment setting.
As a general matter, when government (including public university administrators) regulate speech-related activities in physical areas that have been generally open for expressive purposes, government must, as just noted, do so in a content- and viewpoint-neutral way, that is, in a way that is not focused on what is being said, but instead is directed at the time, place, and manner of the expression. Even then, government regulation does not survive constitutional review unless the regulation is narrowly tailored to serve significant government interests, and leaves open ample alternative avenues for the expression to take place. Moreover, general constitutional requirements of due process and clear and fair notice apply with special force in the free-speech setting because when people are improperly chilled from speaking (on account of vague prohibitions on their activities) both the speakers and the would-be listeners are at risk of losing legitimate expressive messages.
What Significant University Interests Do “Encampments” Implicate?
Physical Obstruction and Resulting Disruption of Other Important Activities
One problem with encampments is that they physically consume a lot of physical space all the time, and thereby often make it difficult, if not impossible, for people to get to where they need to be. Obstruction involves the physical blocking of access to an area or building: a lecture hall, an administration building, and the like. Those who might need to navigate the area to engage their significant missions include students, staff, researchers, and faculty. If they are not able to access the facilities they need to, then the university’s mission is substantially impaired. In its extreme form, congestion and likely obstruction can cause schools to shift modes of instruction from in-person to online—a shift that may be displeasing to some students and instructors.
Physical obstruction is not expressive activity free from government prohibition, just as other forms of physical disruption are not. (For discussion of why “shouting down,” even though expressive, is not protected from government prohibition, see this recent column by one of us.)
Calling physical blockage peaceful because it does not involve overt and affirmative violent assaults on third parties does nothing to alter its lack of constitutional status. And calling it peaceful is not really accurate anyway. The very act of physical obstruction means that others are prevented from getting to where they want and need to go, and if they try to get through a wall of people, there is nothing non-violent about the physical contact that ensues. Just ask an NFL defensive lineman how “peaceful” rushing the passer is.
All of this is seen clearly in the abortion-clinic setting. If an encampment of anti-abortion protestors were configured in a way that made it unreasonably difficult or impossible for patients, visitors, or medical staff of an abortion clinic to get inside the building where and when they needed to in order to receive or provide the appropriate medical procedures, no one would deny the clinic’s mission had been seriously and irreparably harmed.
Some encampments may not completely obstruct access to buildings but may still cause serious congestion in heavily traveled locations on campus. Limiting congestion so that students, faculty, and staff can go about their business and not have to build substantial extra travel time into what might be an already tight workday schedule is also a significant state interest.
Noise Pollution
Noise control is another valid interest. Persistent and excessive noise interferes with the university’s mission. And we’re talking here not just about lecture halls (where classroom instruction is offered) that are located right next to noisy encampments that make it hard for the students to hear and concentrate on the teacher and vice versa. We’re talking about faculty and staff in their offices who need peace and quiet to conduct their research and their business. We’re talking about students studying in libraries. And scientists working in labs. And even administrators holding the lengthy and sometimes tedious but nonetheless important meetings that make up much of their days.
Not all encampments are likely to be unduly and disruptively noisy. But some are, as illustrated by the op-ed written by Columbia professor John McWhorter in the New York Times a few weeks ago, where he observed:
Last Thursday, in the music humanities class I teach at Columbia University, two students were giving an in-class presentation on the composer John Cage. His most famous piece is “4’33”,” which directs us to listen in silence to surrounding noise for exactly that amount of time.
I had to tell the students we could not listen to that piece that afternoon because the surrounding noise would have been not birds or people walking by in the hallway but infuriated chanting from protesters outside the building. Lately that noise has been almost continuous during the day and into the evening . . . I couldn’t see making [my students] sit and listen to this as if [the loud protests] were background music.
Once again, the abortion-clinic-protest setting is instructive. In the many cases (at the lower courts and the Supreme Court) upholding parts or all of regulations and court injunctions limiting protestor activity near clinic entrances and procedure rooms, noise has been one of the factors courts have held can be meaningfully taken into account by regulators because the noise itself interferes with a clinic’s function, and that harm must be considered alongside the interests of the protestors.
Cleanliness
Another significant regulatory concern that expressive encampments implicate is sanitation. While this may be a delicate topic to discuss, pop-up encampments are not generally well-equipped to deal with the problems of garbage and human waste. As a result, not only does the environment get degraded (and the surrounding community may be affected by visual blight and odor pollution), but the risks of disease spreading increases. That is why, even in a more traditional encampment context (e.g., camping in parks where overnight camping is permitted), regulators often impose limits on how close people can camp to sensitive environmental areas (such as waterways) and limits on how many people can occupy a camp, and for how long.
Again, that interest, while not often discussed, would be seen to be of obvious importance near medical facilities, where clean and sterile environments are absolutely required.
Making Room for Others
Another relevant university interest relates to providing expressive opportunities for everyone. No group is entitled to exercise long-term control (represented by encampments) over locations where speech occurs on a campus, in part because a continuing rally or occupation of university property excludes (and thus effectively silences) other speakers from gaining access to those locations for their different expressive purposes. Just as wilderness permits (for backcountry camping) are limited to a certain time period (so that everyone has a chance to enjoy the area), so too do universities regulate the time over which any particular person or group can exercise dominion over property that belongs to the entire community. The clash between competing groups of protestors trying to occupy the same place at the same time at UCLA is a good reminder that physical land is scarce and not everyone can make effective use of it at the same time.
Avoiding Liability
A final, under-discussed, concern universities might have as to overnight encampments has to do with the interpersonal problems that might arise within the encampments, and the resulting potential for liability the university, as owner and regulator of the land, may have to grapple with. Things happen—physical and sexual assaults, for example— when students live in close quarters (see, e.g., dormitories and fraternities/sororities), and the university’s ability to regulate and monitor what people do in impromptu pop-up encampments is greatly reduced when compared with other property and structures that a university manages. Avoiding possible liability arising from anything that occurs within an encampment is another legitimate, indeed significant, university interest that must be recognized here.
Many of these interests discussed above have been recognized in Supreme Court opinions as sufficiently important to justify content-neutral time, place, and manner regulations. Noise control was held sufficient to justify restrictions on expression in Grayned v. City of Rockford, Ward v. Rock Against Racism, and Madsen v. Women’s Health Center, Inc. Concerns about congestion justified speech regulations in International Soc’y for Krishna Consciousness, Inc. v. Lee and United States v. Kokinda. Perhaps most on point is Clark v. Community for Creative Non-Violence, where the Court upheld the application of a no-camping/no-sleeping regulation in Lafayette Park across from the White House to a demonstration “intended to draw attention to the plight of the homeless.” The Court mentioned, as legitimate bases on which government could permissibly regulate public property in content-neutral ways, sanitation, environmental degradation, and allowing access to other users of the property in question. The conventional externalities associated with camping/sleeping in the park were easily deemed sufficient to support the Park Service regulation.
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None of this is to say that each and every one of the interests identified above will justify any particular limitation a university seeks to impose on and enforce against each and every encampment. Much will depend on the context and facts of each case. Some encampments may be more akin to “day camps” and thus not implicate some of the concerns identified above as much as other protests do. Others may be located in areas of campus that do not implicate physical obstruction or noise pollution to a significant degree. And even when regulation of encampments is narrowly tailored to further any or all of the interests discussed above, there remains the question of “ample alternative avenues” for the speakers to get their message out. Whether such adequate alternative avenues exist will always depend a lot on context. In this regard, we note that last week both the University of Illinois at Urbana-Champaign and Cornell University offered protestors a different (from the one at which the encampment in question had been erected) place on campus for them to use, a space that presumably implicated the concerns identified above to a much smaller degree, but the protestors in each instance rejected the offer.
In the end, recognizing that some time, place, and manner regulations may be constitutionally problematic is one thing. Claiming the right to treat all time, place, and manner regulations as recommendations that can be disregarded at the protestors’ discretion is a very different argument.
The Challenges of Even-Handed Enforcement
Let us now double back to the matter of content- and viewpoint-neutral enforcement of otherwise permissible regulations of the time, place, and manner of expressive activity. We deal first with an argument some protestors might advance, one that challenges the very virtue of absolute viewpoint neutrality in the first place. Some protestors might assert that campus regulations should not apply to them because their cause is so just and important that it supersedes any university interests that would impede their protest activity. Those who advance this kind of argument concede that regulations could (and should!) be applied to other protests, perhaps all or nearly all other protests, because the other causes at issue in those protests are not as compelling or as righteous. There may be room for private universities to entertain this kind of argument (although embracing it requires administrators to make and politically defend difficult value judgments) but as far as public universities are concerned (which are fully bound by the First Amendment), there is no constitutional support for this “some-topics-or-viewpoints-are-more-crucial-than-others” position. Again, the abortion-clinic context is illustrative. The fact that anti-abortion protesters fervently believe that abortion is mass murder does not exempt them from the rules.
There is a more nuanced and problematic aspect of the requirement of viewpoint neutrality, however. As an abstract matter of constitutional principle, viewpoint neutrality is easily defended. But always abiding by this norm on the ground during a tense protest is another matter. Administrators in the trenches may be confronted with situations in which rigid enforcement of time, place, and manner regulations will aggravate an already unruly protest. Bending or ignoring the rules may in a given setting have a calming effect and create only moderate costs for the university community. Indeed, not fully enforcing an otherwise valid regulation may end up furthering the government interests underlying the regulation more than would full-throated enforcement, when that enforcement would be undertaken in the face of serious resistance.
It is hard not to be sympathetic to administrators confronting this predicament. The problem, of course, is that by bending the rules in response to one protest, the university opens itself to claims for equal treatment for every other group seeking special waivers from regulations. We have no easy answer to this dilemma. Perhaps there is room in First Amendment law for a government to explain that it selectively enforced its regulations in a prior setting not because it favored or disfavored particular points of view, but instead because there were no practically feasible alternatives that truly accomplished the government’s objectives. An analogy might be the heckler’s veto. Doctrine says clearly that trouble-making listeners should not be allowed to shut down willing speakers and listeners, but if actual violence is likely imminent and cannot be effectively mitigated by reasonable police intervention (as, say, the University of Southern California recently asserted in connection with what it said were credible threats of violence that prompted it to cancel the valedictorian’s speech and ultimately the entire in-person graduation ceremony), then in the real world it may be necessary and permissible in limited circumstances to cancel speaking events.
With regard to how, logistically speaking, viewpoint-neutral restrictions on encampments should be enforced, the Constitution pretty much leaves the decision about means up to the university’s discretion. Our view is that municipal police intervention (as happened with the NYPD at Columbia) would be warranted only in the most egregious circumstances, because the involvement of municipal police often risks the safety of officers, protestors, and passersby and may frequently exacerbate the situation. Yet sometimes such police involvement is the best, or the only, option, especially since university administrators and even campus security forces are not properly trained and equipped to deal with the challenges posed by large crowds who simply won’t comply with valid directives and warnings. But the question of when, and how much, physical force, is appropriate is, like others we have flagged, highly context-based and more properly the subject of a different essay.
