Over the past year, many public (and private) universities have considered revising, or in fact revised, their campus policies concerning land use generally, expressive activities on campus, and delegations of authority and procedures relating to outside speakers. Many of the recent reforms at various campuses have been brought about by emotionally and financially costly episodes at those very (and other) universities, episodes that are fresh in the memories of administrators, students, faculty, staff, and alumni. In the space below I examine one key question concerning the power public universities have to make such changes, and potential limitations on that power arising from the First Amendment—the question of when government action (in this case action by public universities) is impermissibly based on the (expected) viewpoint of the speakers who are affected.
There is no serious doubt that many of the recent changes universities have made or are in the process of making are a direct reaction to last year’s protests and counter-protests concerning the situation in Gaza and Israel. In other words, last year’s protest activities are almost certainly a “but for” and proximate cause of the timing and shape of many recent reform proposals. This has led numerous critics of these proposals to see them as an example of a viewpoint-based “Palestinian exception” to free speech principles; free speech and protest by some students is permitted (and as to some issues even encouraged) by campus policymakers, but when the protestors dare to be openly and loudly supportive of Palestinian claims of unconscionable treatment, and critical of university investment policies involving Israel, then and only then is there a recognition of the need to regulate speech more tightly.
In this column I do not attempt to weigh in on the merits of such criticisms at particular universities; any such analysis would of course require a very fact- and history-specific inquiry at each institution. I will say that some proposed changes at some universities (e.g., bans on “antisemitic speech” that seem to cover more than proscribable threats and harassment) would seem to raise serious questions of impermissible regulation of disfavored ideas, and others (limiting the duration and location of protest activities) would not. The larger point I want to make today is that facially neutral revisions to laws regulating land use (or even laws directly regulating expressive activities) that follow closely in time from particular episodes of student protest generally are not, as a legal matter anyway, understood as a condemnation of or aversion to the viewpoint of the students whose protests have put on regulators’ radar the need to amend policies. Every problem comes to policymakers’ attention in the form of a particular set of episodes involving particular people with particular characteristics, backgrounds, and points of view. But the law surrounding free speech, like that underlying equal protection, requires much more proof of invidious, viewpoint-based motive (beyond the sequence and timing of regulatory action) before a facially neutral regulation (or amendment of regulation) is open to serious attack.
To be sure, content- or viewpoint-based restrictions (and such restrictions are virtually always considered unconstitutional) are not limited, as the Supreme Court has noted, to those that “on [their] face draw[] distinctions based on the message a speaker conveys.” Instead, they include all regulations that are adopted by the government “because of disagreement with the message that [the speech] conveys” (emphasis added). Thus, as in equal protection jurisprudence, policies that are facially neutral and that don’t overtly single out, in the text of a regulation, any specific viewpoint may still be unconstitutional on account of invidious government intent.
In the equal protection realm, we can sometimes tell that a law was invidiously motivated against some race- or gender-defined group based on a number of factors, including the historical backdrop against which the law was passed, the severity of the law’s disparate effect along racial or gender lines, whether the procedures or substantive factors used to pass the law were irregular, and statements made in the legislative history indicating improper intent on the part of lawmakers.
Some of these same factors might also be used to prove improper motive in the free-speech context, but as a general matter proving invidious motive for a speech regulation that is neutral on its face might be even harder than proving improper motive in the equal protection realm, for at least a couple of reasons.
First, it may be harder to predict long-term disparate impact against certain viewpoints (in the speech realm) than it is to predict disparate impact against race- or gender-defined groups (in the equal protection realm.) For example, use of standardized tests is foreseeably likely to generate disparate racial impacts that are likely to persist for many years. By contrast, restricting campus areas in which protests can be held, or banning encampments more stringently, might in the very near future be thought to burden pro-Palestinian speech disproportionately insofar as one might expect campus unrest in the short term to reflect the same points of view as were energetically expressed last year. But months from now (or sooner still), those who want to set up encampments or hold mass protests at universities may be people who have very different messages altogether—e.g., that the country is being ruined by illegal immigration or that climate change or AI pose looming threats that no one is addressing. (Of course, if a university flips and flops in its regulatory revisions as different speakers press their claims, a suspicious pattern could emerge.)
Second, and also complicating motive analysis in the free-speech setting, is the fact that it is perfectly constitutionally appropriate for government itself to speak (and take positions on controversial issues), such that lawmakers’ expressed sentiments on many contested matters may not necessarily be strong proof of a censorial motive but instead is just government business as usual. The equal protection setting is different because statements by lawmakers reflecting racial or gender bias, while perhaps not always amounting to equal protection violations in the absence of further government action, are not considered to be of constitutional value, and are thus more likely to be used as evidence of improper intent. For example, when lawmakers who voice racist sentiments also pass laws that have disparate racial impacts, courts are inclined to find that the laws that were enacted reflect the same racist mindset. But statements by legislators condemning certain points of view, say, White Supremacy, even close in time to the enactment of content-neutral revisions to speech policies after certain White Supremacy events, need not be understood as evidence of an attempt to stifle racist speech so much as expression of a legitimate government stance against racism.
So proving improper motive in the speech realm may often be a tall task. But even from the perspective of free-speech advocates, that may not be as disappointing as it seems. One reason for this is that even content-neutral regulations of expressive activity are subject to a meaningful standard of review by courts. Such regulations may not be invalidated as a matter of course (the way viewpoint-based regulations are), but even neutral time, place and manner regulations usually need to be narrowly tailored to serve a significant governmental interest, and also need to leave open ample alternative channels of communication. So the First Amendment serves as a meaningful limitation even when government is not found to be acting based on an aversion to particular speakers.
Another reason to be less wary of a First Amendment doctrinal framework that makes it hard to prove improper motive is that this hurdle does not always or even generally seem to redound to the detriment of progressive individuals or causes. Let me offer a few brief examples to show that.
First, in McCullen v. Coakley, the Supreme Court was confronted with a Massachusetts statute that made it a crime to knowingly stand on a “public way or sidewalk” within 35 feet of an entrance or driveway to abortion clinics. Abortion opponents argued that the law was not content neutral and indeed targeted pro-life viewpoints both because the law established buffer zones only at abortion clinics (and not other places), and because employees who work at such clinics (and thus who presumably support abortion access) were exempted from the law. But the Court rejected these claims brought by speakers on the right end of the political spectrum. As the Court explained, while “it is true, of course, that by limiting the buffer zones to abortion clinics, the Act has the ‘inevitable effect’ of restricting abortion-related speech more than speech on other topics . . . a facially neutral law [and the law here was neutral on its face since it did not overtly target individuals based on their messages] does not become content based simply because it may disproportionately affect speech on certain topics. On the contrary, ‘a regulation that serves purposes unrelated to the content of expression [such as patient convenience and safety] is deemed neutral, even if it has an incidental effect on some speakers or messages but not others.’”
In a similar vein, the Court in Madsen v. Women’s Health Center, Inc., rejected the notion that a judicial injunction against abortion protestors was necessarily content- or viewpoint-based because it restricted only the speech of particular speakers with particular viewpoints: “To accept [that argument] would be to classify virtually every injunction as content or viewpoint based. An injunction, by its very nature, applies only to a particular group (or individuals) and regulates the activities, and perhaps the speech, of that group. It does so, however, because of the group’s past actions [and not because of a judicial antipathy towards the group’s message.]”
To the same effect is Frisby v. Shultz, where the Court upheld, as content-neutral, a city’s ban on residential picketing, even though it was undisputed that the ban came into being shortly after, and on direct account of, picketing, “that generated substantial controversy and numerous complaints,” outside the home of an abortion doctor by pro-choice activists.
One more illustration may help. In Snyder v. Phelps, the Court upheld the free-speech rights of members of the Westboro Baptist Church to hold protests in connection with military funerals to press their belief that God punishes the United States for its policies permitting homosexuality by killing our military servicepersons. Yet the Court went out of its way not to call into question the statutes of many jurisdictions that regulate or forbid protest events physically near funeral sites on the ground that these statutes were content- and viewpoint-neutral, even though many of them were enacted in direct response to the activities of the Westboro church members. The Court’s apparent (and reasonable) assumption is that the identity and message of the particular protest groups whose activities brought to the fore the need to protect funeral privacy had nothing to do with the government’s recognition that there was a general problem that needed to be addressed.
As noted earlier, none of this is to say that every change at every university in recent months is immune from challenge; it is to suggest, however, that critics of recent proposals need, at least if they are making legal arguments, to focus much more on the specific actions and track records of particular institutions and individuals, rather than to try to lump all the revisions together as purposefully anti-Palestinian.