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Free speech is protected on public campuses like UNC, but isn't guaranteed elsewhere

Free Speech
Evangelist Greg Stephens preaches in the pit on Wednesday, Sept. 5.

After the University received reports of another possible demonstration in McCorkle Place, the administration urged students not to attend but assured the efforts to protect safety for those who do.

This is a message UNC students have received time and time again. An email on Friday from the administration called Silent Sam protests a “highly charged” atmosphere.

“We respect and believe in the First Amendment, the Campus Free Speech Act and the rights of peaceful protestors,” the email said.

UNC students aren’t living alone in this atmosphere. During the 2016 presidential campaign, Liberty University President Jerry Falwell Jr. publicly endorsed Donald Trump. Yet students working at the Liberty Champion, Liberty University's student newspaper, were still left unprepared for Falwell's request that the Champion not run sports editor Joel Schmieg's column about what he thought of the comments about women made by then-candidate Trump on the Access Hollywood bus.

Reports of censorship circulated in August, as the request was not well known at the time.

Other universities have reacted to the issue of free speech on campus in multiple ways, from halting politically charged pieces in student newspapers to ensuring students their free speech rights are protected on campus.

Reactions to First Amendment protections

Liberty University, founded in 1971 as a private Christian university, holds control over the student newspaper and reserves the right to hinder stories from the paper.

World Magazine, a Christian publication, reported in August that Bruce Kirk, the dean of Communications and Media Content at Liberty, told new staffers to preserve the reputation of the university.

“Don’t destroy the image of LU. Pretty simple,” Kirk said. “OK? Well you might say, ‘Well, that’s not my job, my job is to do journalism ... My job is to go out and dig and investigate, and I should do anything I want to do because I’m a journalist.’ So let’s get that notion out of your head. OK?”

Meanwhile, public universities have been reminding students of their access to free speech.

UNC reaffirmed the University’s support of free speech in a recent mass email from Vice Chancellors Winston Crisp and Mark Merritt and UNC Chief of Police Jeff McCracken.

“The free exchange of ideas is what makes ours a vibrant community, and we will continue to protect that right,” the email said.

N.C. State University includes an article on its resources website about free speech, and what is and is not protected by the First Amendment, including descriptions of protests and reserved spaces and the rights associated with those.

NCSU Chancellor Randy Woodson sent an email to students that was similar to UNC’s regarding the university’s position on free speech and expression on campus.

“At N.C. State, we continually strive to foster free speech in an environment where members of our community can learn from one another and where all are treated with dignity and respect,” he said in the email.

What schools are bound by the First Amendment?

World Magazine reported that edited stories at Liberty must now go through a multi-stage approval process, potentially arriving at Falwell’s desk for final approval. Students on the Liberty Champion staff who receive scholarships for their work on the paper allegedly must now sign a nondisclosure agreement based on their full compliance with the newspaper’s policies.

Tyler Coward, legislative counsel for the Foundation for Individual Rights in Education, said the First Amendment does not apply to private universities the same way it does to public universities because private universities are not government actors.

He said while this may be the case, most institutions promise First Amendment rights to their students and faculty.

FIRE ranks UNC’s speech codes as green, meaning the policies nominally protect free speech. Eight schools in North Carolina have a green rating, including North Carolina Central University and Duke University, which is the only private university with this ranking.

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Yates McConnell, a UNC sophomore, said he does not see an explicit oppression of students rights, but there can be restrictions for minority students.

“I feel like with Silent Sam and the way things are with that, minority groups may not feel as safe expressing their views,” he said. “I don’t think it’s an outright policy-based oppression, more of a de facto oppression of free speech on campus for minority groups.”

Nine universities have yellow ratings from FIRE, meaning there is at least one ambiguous policy allowing the administration to arbitrarily apply the policy to the state of free speech on campus. All nine of these universities, which includes NCSU, are public.

Wake Forest University and Davidson College have red ratings, meaning they have at least one policy that both clearly and substantially restricts freedom of speech. Both of these schools are private.

Becca Walker, a sophomore at Wake Forest, said she doesn't notice a restriction.

There are multiple organizations on campus that the university allows to freely express themselves, Walker said, as well as multiple art projects aimed around free expression.

“I definitely think I do have the right to free speech on campus,” she said.

Regardless, Coward said, FIRE receives nearly 1,000 cases a year of First Amendment violations from students or faculty across the country.

Protections in place to protect students’ rights

“Universities are designed to be these marketplaces of ideas, and students should really use and take advantage of these very strong free speech protections provided to them under the constitutions of the United States and of North Carolina,” Coward said.

The protection Coward refers to in the U.S. Constitution is the First Amendment, saying essentially that Congress shall make no law abridging the free exercise of religion or the freedoms of speech, press, assembly or petition.

The First Amendment has also been interpreted by the U.S. Supreme Court to extend to states, and in public, government-funded schools, speech cannot be regulated with a school’s own interest beyond that of the safety of students and the refusal to promote illegal activity.

Protections at private universities don’t extend the same way as they would at a public institution, and sometimes they don’t extend at all.

An existing state protection is House Bill 527, which became law without Gov. Roy Cooper’s signature on July 31, 2017. It reaffirms the rights guaranteed to students in the First Amendment, guarantees an open campus for the exercise of the First Amendment within reason and directs institutions to develop sanctions for those who disrupt these rights.

Coward said, going forward, students should learn the rights these documents give them.

“Students should familiarize themselves with what their rights are — what rights are guaranteed and protected by the First Amendment — and they should learn to recognize when and if their free speech rights are violated,” he said.

Sarah Rozek, a third-year UNC law student and editor-in-chief of the First Amendment Law Review at UNC, said in an email she thinks the state of free speech on college campuses is undetermined.

“In theory, students should be allowed to demonstrate and express their views openly,” she said. “However, safety now comes first.”

Rozek said students’ free speech rights can be improved if the student body acknowledges the core of the First Amendment is to protect speech regardless of its content.

“We have to listen and tolerate controversial speech which opposes our own,” she said. “Obviously, incitement to violence is not to be protected or tolerated, but trying to prohibit certain controversial speech goes against our free speech rights.”

She said she thinks a school’s administration will always think of students’ safety first and place restrictions to protect students, such as prohibiting certain speakers.

“We should not be fine with this,” she said. “After all, the solution to controversial or hate speech is not silencing the speech, rather, it is more speech.”

Rozek said students need to learn the First Amendment doesn’t apply in a vacuum.

“We also need to learn that the only way we can preserve our free speech rights is if we are able to listen and tolerate speech with which we do not agree,” she said.