The First Amendment right to free speech is not absolute, and this is especially true when discussing students’ rights. The Supreme Court’s decision in Tinker v. Des Moines makes clear that administrators must have “comprehensive authority” within constitutional limits to control school conduct. However, the case also makes clear that “it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
While it is not clear under what justification The University of Alabama has for choosing to remove the poster that Bama Students for Life put up in the Ferguson Center, the school has the possibility of continuing the trend of losing over speech codes.
The best guess that I can make as to what justification in the rules that the University would make is the student handbook prohibits organizations from displaying any “posters, signs and bumper stickers” that are not “in good taste.” The handbook states that “any questions that arise concerning the interpretation of good taste should be directed to the Auxiliary and Support Services Office.”
This is a very vague description. The Supreme Court has held that “a more stringent vagueness test” should apply to laws that interfere with the right of free speech. Because of the rule’s vagueness, the University has reason to be nervous.
This would also be true if they merely chose to remove it for being “offensive,” as the official states in the video. The Supreme Court explicitly refused to extend the ability for school officials to regulate “offensive” speech in Morse v. Frederick. In that case, a student was punished for unfurling a banner that stated, “BONG HiTS 4 JESUS.” Chief Justice Roberts held that previous cases should not “be read to encompass any speech that could fit under some definition of ‘offensive.’” This is especially true when, as he points out, “much political and religious speech might be perceived as offensive to some.” They held that the free speech right did not exist because the student could be seen to advocate illegal drug use.
The Supreme Court has also recognized many times that government restrictions on free speech must be narrowly drawn to address only the specific evil at hand. Specifically, the Supreme Court declared in NCAA v. Button that “First Amendment freedoms need breathing space to survive” and that “government may regulate in the area only with narrow specificity.” Because of these limitations in the ability to limit free speech, there have been a number of cases where university speech codes have been struck down for being vague. This is even in cases of hate speech and sexual harassment claims.
All of that does not mean that the University cannot have any student rules against certain forms of speech on campus. Tinker found that students have a broad right to free speech, but the Supreme Court has found three exceptions. Schools can regulate all lewd and indecent speech, speech that can be seen as school-sponsored and speech that can be understood to advocate illegal drug use. Additionally, hate speech and action regulations have been greatly expanded upon in recent cases.
The Capstone has been an interesting place for free speech since I’ve been here. It has had the Westboro Baptist Church come to protest and BSFL has caused controversy before with its actions. Despite allowing those, the University chose to remove a poster from the Ferguson Center.
I can honestly say that I’m not sure that I looked in that area of the Ferg more than maybe five times in my entire undergraduate career at Alabama, but instead of just letting the poster stay there, regardless of the offensiveness or accuracy of it, they expose themselves and their vague speech codes to criticism and more.
Matthew Bailey is a second-year law student. His column runs biweekly.
