How the First Amendment impacts campus political protests

So it's a prohibition on government, even though it says, “Congress shall make no law,” through the 14th amendment, it has been applied to lower governmental bodies, not just Congress, but state legislators, city councils.

All forms of government are prohibited from interfering in the freedom of speech, which doesn't mean an absolute right. There are limitations on all rights that are granted in the Bill of Rights. And that's what the First Amendment does. It places restrictions on what the government can do, with respect to people's rights to speak freely.

RMPBS: The First Amendment has been in the news because of all the campus protests that have been going on protesting the Israel-Hamas war. What rights do protesters have, and what are the rights of other students who are not protesters on campus? And what that balance has looked like in practice, over these past few weeks.

SZ: Right. So I think, because as I just stated, the First Amendment is a restriction on the government, we should think about these encampments and the student protests in two different settings: Government funded schools, the University of Colorado, etc., and then private schools, including the University of Denver and, you know, Columbia University, which I guess was the first.

So the First Amendment really has nothing to say about what the university administrators are doing on private colleges because they're just not governmental actors. 

There may be other rights that the students on those campuses have because of contractual rights, because of the student code of conduct. And, in exchange for their paying hefty tuitions to attend those colleges, they have certain rights that are defined by contract, but not by the First Amendment.

So then the second set of settings are universities that are funded by the government and are administered by the government, and there the First Amendment does have something to say.

And, of course, universities are recognized–both governmental and non-governmental–as havens, the epicenter for exchange of ideas and for free interchange of debate and free-wheeling academic freedom in the classrooms by the professors and the students alike. So the First Amendment does apply to the actions that university and college administrators take with respect to students protests on those campuses.

But as I said, no right under the First Amendment is absolute. And no one has the right to march into a governmental proceeding like a courtroom, or any governmental function like the state house when it's in session, and just hold forth and interrupt and interfere with the orderly conduct of what's going on in that setting.

And so, aside from the content of the speech, these are known as time, place and manner restrictions. 

The government is not prohibited from enforcing those types of restrictions. Like, I'm not allowed to take a bullhorn and walk down my street in a residential neighborhood at midnight shouting, “Palestinians deserve better rights!” or, “I support Israel,” whatever position I want to take.

Now, the government can't pick and choose to enforce that restriction based upon which side of the debate I'm on. And that's viewpoint discrimination. So these time, place and manner restrictions, as they're called, have to be content-neutral. 

They can't be enforced only against one side in a controversy and not against the other side. But such restrictions mean that if students are going to occupy a university building or interfere with classes, or to occupy as, as happened just on Monday, the Auraria Campus, they don't have a First Amendment right to do that.

It's a separate question whether or not the use of excessive force and the police response, whether it's appropriate, that's separate from the First Amendment. But, people are mistaken if they believe that they have an absolute First Amendment right to say whatever they want to say, wherever and whenever they want to say it.

It's not true on a university campus and it's not true anywhere else, whether it be private property or governmental property. So, that's the layout, if you will, of the competing rights. 

And so the rights of the students to attend classes without interference, that's sort of what the university administration is doing when they are placing those time, place and manner restrictions on these encampments and protesters. 

There's no doubt that students on a government-funded college campus have the right to speak and to share their views, and to call upon the administration to divest of investments in Israel or other companies supporting the ongoing war between Israel and Hamas. 

But they just can't interfere with the educational mission of those institutions. 

RMPBS: So you think that's the balance of that? That is kind of having to be struck right now? 

SZ: University administrators, as I said, the one thing they can't do is take sides in the debate. They have to enforce the same content neutral restrictions equally to both sides.

I think the number and size of the pro-Israel, the groups that are supporting the Israeli incursion into Gaza, is far less and less controversial. There aren't encampments, to my knowledge, doing that. 

But, were they to allow the pro-Israel encampments to stay in place while, emptying out the pro-Palestinian ones, that would clearly be a First Amendment violation.

RMPBS: Yeah. You and I were talking about earlier about how sometimes people get confused about the rights that you have in a public space versus a private space. This is also something that we think about as journalists. And we've asked you about where if there is private property and you are protesting or you are covering that protest, but you are asked to leave, for example, that is not a question of the First Amendment, then that is a question of just trespassing. Is that correct?

SZ: Right. Journalists don't have a right under the First Amendment to enter onto private property without the private property owner’s permission. That is trespass. And, even on public college campuses, there have been courts that have allowed the university administrators to create free speech zones where students can protest and demonstrate and carry signs. 

Not just on college campuses. This was true years ago when Denver hosted the Democratic National Convention at the Pepsi Center, there was a free speech zone. In fact, I represented groups of protesters who challenged that restriction because it was so far away from the attendees to the Pepsi Center that they couldn't reach their target audience. That was our position.

The judge did not agree with us.

And so that, free speech zone there was upheld. And free speech zones on college campuses have been upheld as well. Not everyone has the right to attend, to even step foot on every governmental property. You don't have the right to go into a prison.

There are certain places that just, even though they're owned by the government, they're not open to the public and even public universities are meant to be limited to the student body and the professors and folks who have a reason to be there, consistent with the mission of that institution. 

Even though it's a governmental property, it doesn't mean that the press can go there any more than you could go into, you know, a kindergarten classroom without the permission of the principal or the superintendent, the folks who are responsible for maintaining that space.

For over 25 years, Zansberg — who counsels Rocky Mountain PBS on media law — has represented plaintiffs in free speech cases.

RMPBS: I think when you and I had spoken earlier you mentioned, “Well, you know, school's almost out.” Kids are graduating. So the campus debate at least is changing in that regard.

The U.S. House did pass the Antisemitism Awareness Act, which the ACLU has criticized because it expands the definition of antisemitism to include political criticism of the state of Israel.

And there has been, and I've no doubt there will be very, very passionate debate about this particular bill. Right now, it's not clear what the future for it is in the Senate. And so I know that I'm putting you on the spot because there's no case law, but I do want to ask you about that, because that does seem to be Congress, the government, as you know, stepping in, regarding speech.

SZ: Well, I'm vaguely familiar with the legislation. I have not read it. And, as you said, it may not come to fruition that it actually becomes the law and signed into law by the president. 

So I'm not really certain about either how antisemitism is being defined, and I understand the ACLU does have concerns about that. For instance, it wouldn't make sense in my mind to equate criticism of the government of the state of Israel, and its conduct of the war against Hamas, with the Jewish people, by criticizing one and, equating it with an entire religious group or race.

But the real question is, what are the consequences? I mean, we're not going to be punishing people for speaking in an antisemitic way, right? I mean, if that were true, then we could ban Mein Kampf, Hitler's antisemitic tome, and all kinds of things would be punished. Hate speech, even saying, you know, “All Jews do not deserve to live,” or, “All Palestinians do not deserve to live,” is horrible and terrible offensive speech. But you can't be jailed or fined for saying it. 

That's what the First Amendment means, the government cannot impose any punishment on you for those types of statements. 

Now, there are contexts in which certain speech can be deemed hate, can be deemed either fighting words or true threats where people can feel so harassed. There's workplace harassment. There are limits, where speech can have consequences and can be subject to governmental regulation, but they're very narrowly confined and defined.

Those categories of unprotected speech, like fighting words and incitement to imminent lawless conduct and things of that sort, does not mean all hate speech, speech that might make people feel uncomfortable, is punishable.

So I'm not really familiar with what the consequences of this, either the actual parameters of the definition of antisemitism or what consequences flow from the definition. 

But, certainly, any law that would impose any type of sanctions on people for speaking in antisemitic ways, whatever they are, would not withstand Constitutional scrutiny. 

This is, I think, part of the nuance and the complexity of the First Amendment because, of course, it protects political speech, it protects expression, freedom of religion, but it also protects things that we might not like, like hate speech.

RMPBS: This is your area of expertise. Can you maybe leave us with the positive aspects and what the First Amendment brings us and how we might understand it as a tool for our democracy?

SZ: I'm of the belief that the First Amendment does need to address ever-changing circumstances. The Founding Fathers and those who wrote the Bill of Rights could not have envisioned the world we're living in today in myriad ways. So it does have to, I don't want to say that it doesn't change, the words remain the same, but how it applies in various contexts have to be true to the principles of the First Amendment.

And the principles are that, unless someone acts in a way that harms another, words alone, and expressive conduct–including protests, demonstrations and marches–again, short of physically interfering with the entryway of buildings–is protected and cannot give rise to punishment or sanctions of any kind. And that's because we all have the freedom to express ourselves, and the rest of us have the freedom to hear what's being expressed. And that's even more important, in my view, than the right of the speaker to speak it.

We all have the right to decide which ideas we're going to adhere to, even hateful ideas. Even provably false ideas like the Earth is flat or, you know, two plus two equals five. If I choose to believe that, the government can't punish me for believing that. It can't punish me for saying that even if it causes some type of anguish to people hearing it, that's not the basis for punishing speech. And we all benefit from that.

It's hard in these times to appreciate that, given how heated and the fact that students do want to go to class without having to be confronted with hateful speech but, like I said, outside of some narrowly confined circumstances, we all have the right to speak our minds. Even if we are horribly wrong, misguided, and are saying some terribly hateful things.

RMPBS: Is there anything else you would like to add that I haven't touched on that’s very important for people to understand?

SZ: Well, I mean, I you know, there are other ways to deal with problems of hate speech and what's going on at college campuses and people having a firm view about the injustice of what's going on in Gaza with respect to the Palestinians. Some people feel that way with respect to October 7th and the fact that there are still hostages being held, and these are extremely important issues that all of us have the right to hold our own views on and to espouse freely.

And we live in a society where the First Amendment, thankfully, protects the government from punishing either one of those deeply held views, or their being espoused, in a public place.

And, you know, if people appreciate that we live in a country where we have that freedom, they might, you know, avail themselves of these other means other than calling upon the government to get involved and be the referee. 

RMPBS: Does that make you feel hopeful, then, that even though things are heated and uncomfortable or upsetting, that we're going to get somewhere?

SZ: I look at the current campus protests and I am hopeful that the current generation of younger people, as in the past, have exercised their voices to speak out against injustice and to make it known. And, you know, civil disobedience, violating the law, in order to bring attention to a cause.

It doesn't mean you're immune from sanctions. I mean, Martin Luther King went to jail to bring attention to his cause. And so the protesters who do go beyond what the law protects by inhabiting private spaces and interfering with the orderly conduct of the university don't get a get-out-of-jail-free card because I mean, they shouldn't be in jail, but they're not immune from any type of sanction.

But, I am encouraged that this perceived injustice has brought out a great number of young people to speak up and get their voices heard. And I'm hopeful that it's not limited to the Israeli-Hamas war, but that climate change and multiple other injustices in our society will similarly bring the younger generation to make their voices heard because I think our society will benefit from it.

RMPBS: Wonderful, thank you so much.

Gabriela Resto-Montero is the managing editor of Rocky Mountain PBS. Gabrielarestomontero@rmpbs.org