How Much Free Speech?

Did Chancellor Holden Thorp go too far in forbidding the use of university resources to promote political candidates? FIRE, the Foundation for Individual Rights in Education, thinks so.

On Thursday, October 16, Thorp sent an email to UNC-Chapel Hill students, faculty, and staff. Its headline was: “FORMAL NOTICE: University Resources Cannot Be Use To Support Political Campaign Activities.” The email stated: “With Election Day approaching, this is a reminder that students, faculty and staff may not use University resources – e-mail accounts, computers, vehicles, equipment, supplies, funds, postage, photocopy, faxes, and the like – for political campaign activities.”

FIRE faxed a six-page letter to Thorp the next day, protesting the chancellor’s directive as an infringement of free speech. Written by Adam Kissel, director of FIRE’s Individual Rights Defense Program, the letter expressed concern about “the vague and confusing restrictions on freedom of expression.” The chancellor’s email, Kissel said, “forbids a large swath of political speech” that is guaranteed by the U.S. Constitution.

Kissel stated that “it is untenable for a public college such as UNC-CH to deny its students and faculty the right to use the university’s resources to exercise their right to ‘express their views on any subject, including advocacy for or against candidates for public office.’” (The quoted phrase came from Thorp’s email.)

FIRE is an activist organization, based in Philadelphia, that is committed to defending free speech on campus, especially on public campuses. The Supreme Court has consistently protected free-speech rights at public universities, and FIRE staff members frequently tells schools that they have infringed on those rights. (At private institutions, the First Amendment guarantee is limited by the right of the owner of private property to set the rules within its boundaries.) FIRE makes a point of being nonpartisan.

During this political campaign season, FIRE has identified a number of efforts on campus to restrict political speech, according to Greg Lukianoff, FIRE’s president. After they were confronted by FIRE, those universities backed off somewhat, said Lukianoff in a recent op-ed in the Huffington Post. Those schools “still leave students and faculty uncertain” about where and when they can express support for candidates, he said.

Although FIRE’s letter about UNC-Chapel Hill is outspoken, it suggests that Thorp may not have intended his statement to be as sweeping as FIRE considers it. “If UNC-CH’s intention is simply to prevent state employees from creating the appearance that the university endorses a particular political candidate it has inadvertently gone too far,” wrote Kissel.

The letter recognizes that colleges “must heed” IRS rules and state and federal law that may limit speech in some ways; however, wrote Kissel, “none of these legal guidelines conflicts with the equally crucial duty to uphold the First Amendment and basic principles of free expression on campus.”

Kissel’s letter then went through constitutional precedents for free speech for students as individuals, for student groups, and for faculty. He quoted liberally from FIRE’s Policy Statement on Political Activity on Campus, a statement originally issued in 2004 but updated for the current political campaign.

According to the FIRE letter and statement, students have the strongest rights to free speech. Student groups (such as the College Democrats and College Republicans) have similar rights to speak freely. And the faculty have a “robust” right of free speech “under the rubric of academic freedom,” says the FIRE statement.

Faculty do face some limitations, however. FIRE’s statement cited two Supreme Court cases indicating that faculty cannot disrupt the university. Kissel’s letter also suggests that efforts to “prevent state employees from creating the appearance that the university endorses a particular political candidate” may be legitimate.

The bottom line of the FIRE missive was that the university must make clear that students and faculty can “engage in partisan and other political speech and activity on the same basis in which they engage in other expressive activities, so long as they do not suggest that they do so as official university representatives.”