Universities' Speech and the First Amendment

Abstract

Increasingly, scholars and students alike suggest that university leaders should engage in speech to oppose racism and other systemic discrimination—and in May and June 2020, countless university leaders across the country did exactly that, expressing solidarity with the Black Lives Matter movement. That speech also contained implied answers to two questions: normatively, should a public university speak in this way, and legally, can it do so? Developing a robust answer to the second question is the focus of this Article, which brings together political scientist Corey Brettschneider’s conceptualization of government speech as persuasive or coercive; federal constitutional law (forum analysis doctrine and government speech doctrine); and recent changes in state law regarding free speech and public colleges and universities.

Keywords: free speech, First Amendment, campus, college, university, neutrality, government speech, forum analysis, Brettschneider