Mass arrests at a pro-Palestinian demonstration at Washington University on Saturday and the expectation of trespassing charges have highlighted how First Amendment rights change when protesters step off a public sidewalk and onto the campus of a private college.
Student activists decried the arrests of around 100 people as some members of the campus and St. Louis community described a “months-long assault on democracy and freedom of speech” at Wash U.
The university has temporarily suspended and banned students and faculty arrested at the demonstration from the school's property. At least two faculty members, who were at the protest but not arrested, have been put on administrative leave.
Free speech protections are more nuanced at private universities, such as Wash U, which are not legally required to honor people's First Amendment rights in the same way that government or public universities are.
What does the First Amendment say?
The First Amendment is found in the U.S. Constitution's Bill of Rights.
It reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
In essence, the provision enshrines an individual’s right to:
- Practice a religion of their choosing;
- Freedom of speech and expression;
- A free press;
- The right to protest or be associated with any group;
- The right to petition, or the ability to argue differing viewpoints with the government.
While the First Amendment requires the government not to discriminate against speech based on viewpoint, there can be rules imposed on the time, place and manner that speech is shared. For example, in demonstrations, there can be a cap on the number of protesters in a space, limits to early-morning or night demonstrations and limits on the noise level of the speech.
"Certain things are going to be allowed in some spaces, not others, [depending] on the circumstances," said Jessie Appleby, attorney and program officer for the Foundation for Individual Rights and Expression, a non-profit civil liberties group focused on protecting free speech on college campuses.
"When it comes to [the] content of speech, it's a much much higher bar for what is unprotected — most speech is going to be protected," Appleby said.
Is there conduct that is not protected?
The First Amendment does not protect conduct that breaks the law, including, but not limited to: violence, assault, vandalism and “true threats” — when a speaker directs a threat to a person or group with the intent of invoking fear of bodily harm or death. If you do any of that, you may be arrested or fined.
Sarah Ludington, the director of the First Amendment Clinic at the Duke University School of Law, said university administrators can be put in tricky spots when attempting to differentiate types of speech.
“Hate speech is protected speech under the First Amendment,” she told NPR’s Ayesha Rascoe. “On the other hand, some kinds of speech that are pervasive, targeted and repeated and directed at particular people can amount to harassment, which can be punishable under federal laws.”
Ludington said she sympathizes with school administrators' concerns about the safety of students and attempts to ensure demonstrations don't get out of hand.
Public vs. private colleges
Student activism has been ubiquitous at college campuses for decades. The Ohio National Guard opened fire and killed four students at Kent State University during a 1970 protest against the Vietnam War, a conflict that divided the nation. Reaction erupted on campuses from coast to coast — including at Washington University.
Public colleges and universities, which receive taxpayer funding, must follow protections set out by the Bill of Rights, including the First Amendment. Courts can find public institutions at fault if they fail to uphold those provisions.
Private universities — such as Washington University and St. Louis University — are not required to extend First Amendment protections to people on campus. Protestors demonstrating on private campuses do not have constitutional rights to their speech or presence there.
Still, the majority of private colleges uphold freedom of expression and thought among their guiding principles.
“You know, the foundational role of any major university, research university is to seek, advance and disseminate knowledge,” said Duke University’s Ludington. “To serve this purpose, any university really has to promote a culture of academic freedom.”
Washington University touts the importance of promoting freedom of expression on its website and a2016 policy details the concept at the school.
“To protect the freedom of expression, the university should respect the expression of ideas, even those that are offensive or unpopular, by all members of the university community: students, staff, faculty, administration, and guests,” the policy reads. “That respect for expression should apply to all speech and writing by members of the university community, encompassing any forum in which members of that community engage.”
“The free exchange of ideas is a cornerstone of higher education and we are committed to upholding this fundamental value.”Washington University website
Wash U Chancellor Andrew Martin admonished the weekend protest in a Monday blog post, alleging the demonstration was fueled by outside interests to push a political or social agenda. Martin said about a quarter of those arrested Saturday were students or faculty at the university.
Martin also claimed protestors were attempting to break into locked buildings to deface property. (St. Louis Public Radio has not independently confirmed Martin’s claims and his account has been challenged by some at the demonstration.)
The vandalism that Martin describes would not be protected behavior at any demonstration, said Appleby, adding it is reasonable for institutions to ask those participating to leave. Also, any university — whether private or public — can limit certain kinds of behavior, such as camping on a school’s property.
If students plan to protest at their school, Appleby recommends planning and reviewing the institution’s outlined policies with demonstrations or large gatherings.
“Your first step should be to look at your school's policy, in terms of time, place and manner restrictions on speech,” Appleby said. “Those are constitutional regulations, as long as they don't target the content or viewpoint of speech.”
St. Louis Public Radio’s Lara Hamdan contributed to this report.
