Free Speech on Campus: A New Forum-Based Approach

Abstract

Students and faculty at public colleges and universities frequently find themselves in conflict with administrators over questions of free speech. Unfortunately, the courts have provided precious little guidance. Lower courts are struggling with a diverse set of issues: the appropriate rules for student protests; which campus spaces constitute open forums for speech and which can be closed off or regulated; how much control administrators can wield over student-invited speakers; and whether or when student online speech can be punished, among many other problems. The Supreme Court has provided virtually no helpful guidance to lower court judges or public college administrators as to how or when the First Amendment limits their discretion. This article provides a helpful forum-based approach to the analysis of many of these questions and proposes specific solutions in the hope of bringing more predictability and stability to this confusing area of constitutional law.