The issue of free speech at colleges and universities has been a major topic of public discussion in recent years, particularly with respect to on-campus protests, controversial public speakers and contentious social media campaigns. Understandably, students, parents, alumni and other stakeholders of the University of Houston have asked questions about free speech at the University.
The key thing to remember about UH is that it is a public institution of higher education of the state of Texas. This means that actions of the University are actions of the state. As such, the First Amendment of the U.S. Constitution applies to the University, and the University cannot perform actions that violate the First Amendment as it has been interpreted over the years via legislation and court precedent. Private entities, including private universities, are not state actors, so they are able to regulate speech in a manner that UH cannot.
In practice, this means the University cannot prevent a speaker from speaking on campus or discipline a student merely because the University does not approve of what the speaker or student is saying. If the University did so, that would be interpreted by the courts as a form of governmental censorship, which is (thankfully) precluded by the protections provided in the Bill of Rights.
What the University Can Do
UH can maintain reasonable time, place and manner regulations that apply to everyone. Also, activities that are unlawful or that are materially and substantially disruptive to the normal operations of the University need not be tolerated.
So, if the University requires that an organization hosting a speaker pay a rental fee for room usage or for added security, and such requirements are not being applied in an unequal or capricious manner to that organization, it isn’t an act of censorship for the University to tell an organization that it cannot use University facilities if it does not pay the necessary fees. Similarly, the University can set up rules stating that speaker events should take place only at certain times or locations, as long as such rules are not arbitrary or serve as an in-practice form of censorship.
What About Hate Speech?
The question that commonly arises is: Can’t the University prevent students or speakers from engaging in hate speech? The answer to that is that while the University abhors hate speech, there isn’t a general hate speech exception to the First Amendment. The University cannot declare certain speech to be unacceptable simply due to its message, any more than any other governmental agency can.
This doesn’t mean that students or speakers are allowed to threaten others, single people out for harassment or create a dangerous environment for others. The First Amendment doesn’t create a right to threaten people any more than it creates a right to falsely shout “Fire!” in a crowded theater. But the focus of analysis is not the noxiousness of the message but rather the specific context of the message, particularly if it involves threats of violence or other illegality, or violations of other general University policies, such as policies against open flames, littering or impeding access to buildings.
Similarly, if UH students are making crude or hateful comments on social media, while that isn’t behavior the University condones, students can’t be punished for such speech unless the speech is threatening or harassing particular individuals or otherwise constitutes the sorts of violations of law or University policy mentioned above. The fact that certain speech may be vulgar or offensive doesn’t give the University the right to censor it. However, threats and targeted harassment are not protected under the First Amendment, so such expressions are not acceptable at the University.
U.S. Supreme Court Justice William Brennan wrote, “If there is a bedrock principle of the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” This limitation applies to the University of Houston as it does to any other governmental agency.
The University wants its faculty, staff and students to be able to learn, work and live in a safe and respectful environment. But the need for safety and respect cannot become a rationale for censorship of ideas, even if they are offensive and disagreeable. UH is committed to fostering a learning environment where free inquiry and expression are encouraged, and it is not a place where people give up their First Amendment rights when they step foot on campus.
Mark R. Yzaguirre is associate general counsel and associate vice chancellor for legal affairs for the University of Houston System. This piece is intended to provide general legal information and is not personal legal advice for the reader.