Pro Life on Campus: A First Amendment seminar

First Amendment: Rated E for Everyone

First Amendment: Rated E for Everyone

When CBR goes to school, we not only bring the truth of abortion, we also give a lesson on the First Amendment.  Here is an article that appeared in the aftermath of our visit to the University of West Florida.

The “free-speech” zones, as applied at many universities, is without question unConstitutional, because it restricts speech on 99% of the campus, without any compelling state interest in doing so.  “We like our speech bottled up where we can keep an eye on it” is not a compelling state interest.  Neither is, “We’ve always restricted speech to this location.”  What they are saying, in essence, is this: “We deny everybody’s First Amendment rights equally, so it’s OK.”  Needless to say, that would get the university laughed out of court if they were foolish enough to make that argument.

After we explain the First Amendment to the most university attorneys, they generally accept our legal reasoning.  Of course, the fact that we are ready and willing to take our case to court, if necessary, also helps them see the light.

Here’s what we say in our standard notification letter to each university to which we take our GAP project:

… pursuant to well-settled law, CBR enjoys an undisputed First Amendment right to conduct educational presentations in any public forum.  “[A] principal purpose of traditional public fora is the free exchange of ideas,” Cornelius v. NAACP Legal Defense & Ed. Fund, 473 U.S. 788, 800 (1985), and other purposes include “assembly, communicating thoughts between citizens, and discussing public questions,” Hague v. Committee for Ind. Organization, 307 U.S. 496, 515 (1939).   A college or university is “peculiarly the ‘marketplace of ideas.’”  Healy v. James, 408 U.S. 169, 180 (1972).   While we do not accept the proposition that free speech can be limited to designated areas, there is no serious doubt that “free speech” areas on your campus are public fora in which CBR’s rights cannot be limited unless certain standards are met. 

 The standard for content-based restrictions on speech is that any such regulation must be necessary to serve a compelling state interest and be narrowly drawn to achieve that end.  Boos v. Barry, 485 U.S. 312, 321 (1988).  Furthermore, such regulations “must be subjected to the most exacting scrutiny.”  Id.  Only speech such as obscenity, defamation, and fighting words has been found to meet that standard.  See, e.g., R.A.V. v. St. Paul, 505 U.S. 377, 383 (1992).  Your client will have no such “compelling” interests as to CBR’s speech.

 The standard for content-neutral restrictions on speech is that any such regulations must be “narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.”  Perry Ed. Ass’n v. Perry Local Educator’s Ass’n, 460 U.S. 37, 45 (1983) (emphasis added).  The University undoubtedly has “significant interests” in speech on public property.  Those interests are safety and traffic flow on streets and sidewalks and the opportunity for students to access educational services without substantial interference.  Cf. Widmar v. Vincent, 454 U.S. 263, 277 (1981).

It is axiomatic, however, that the First Amendment is especially protective of speech which is offensive.  In fact, offensive speech is the only speech which requires protection.  See, e.g., Forsyth County v. Nationalist Movement, 505 U.S. 123, 134-35 (1992) (speech cannot be “punished or banned, simply because it might offend a hostile mob”); Cohen v. California, 403 U.S. 15, 21 (1971) (viewers who dislike a message have a responsibility to “avoid further bombardment of their sensibilities simply by averting their eyes”); Terminiello v. City of Chicago, 337 U.S. 1, 4 (1949) (free speech “may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger”).  Therefore, the possibility that CBR’s photos or literature or remarks might offend passersby has no legal significance and cannot properly be used as a basis for restricting that speech. 

 As noted above, CBR is prepared to accept reasonable time, place, and manner restrictions on its expressive activity and will make reasonable efforts to ensure that their conduct does not negatively affect legitimate interests of the university.  But CBR will not accept unreasonable restrictions.  An example of an unreasonable restriction would be any attempt by the university to minimize controversy by relegating CBR’s display to some obscure campus location.

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