Abstract:
Despite a long list of judicial decisions striking down broadly worded university speech codes, universities continue to promulgate and enforce such policies under various guises. This essay examines a case in which a committee of administrators and faculty sought to punish a student for a racist Facebook message alleged to be harassment, a threat, disorderly conduct, and a disruption. On the one side, the committee claimed its action was supported by legal doctrines regarding contracts; time, place, and manner restrictions; captive audiences; student social media use; and the university’s zero tolerance policy. On the other side, faculty First Amendment advocates argued the student’s speech was protected speech. This article attempts to lay out the arguments on both sides and establish that the student’s speech (and speech like it) is so clearly protected that the administrators and faculty who attempt to punish it should lose qualified immunity if sued.
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