The Foundation for Individual Rights in Education report on universities notes that “many … institutions severely restrict free speech and open debate. Speech codes—policies prohibiting student and faculty speech that would, outside the bounds of campus, be protected by the First Amendment—have repeatedly been struck down by federal and state courts for decades. Yet they persist, even in the very jurisdictions where they have been ruled unconstitutional. The majority of American colleges and universities maintain speech codes.”
FIRE’s recent survey of 437 schools found that more than 55 percent maintain severely restrictive, “red light” speech codes—policies that clearly and substantially prohibit protected speech.
The report notes that “colleges’ restrictions on free speech varies by state. In Missouri, for example, over 85 percent of schools surveyed received a red light rating. In contrast, two of the best states for free speech in higher education were Virginia and Indiana, where only 31 percent and 25 percent of schools surveyed, respectively, received a red light rating.”
Some states have taken steps to protect First Amendment rights. Last year, Virginia enacted legislation effectively designating outdoor areas on the Commonwealth’s public college campuses as public forums. This prevents Virginia’s public universities from limiting student expression to tiny “free speech zones” or subjecting students’ expressive activities to unreasonable registration requirements.
Excuses are still being found to limit speech on campuses. “…FIRE continues to see an unacceptable number of universities punishing students and faculty members for constitutionally protected speech and expression. It is essential that students, faculty, and free speech advocates remain vigilant not only about campus speech codes but also about the way universities may—even in the absence of a policy that is unconstitutional as written—silence or punish protected speech.”
“Of the 437 schools reviewed by FIRE, 241 received a red light rating [most restrictive] (55.2%), 171 received a yellow light rating (39.1%), and 18 received a green light rating [least restrictive] (4.1%). FIRE did not rate seven schools (1.6%). FIRE rated 333 public colleges and universities. Of these, 54.1% received a red light rating, 41.4% received a yellow light rating, and 4.5% received a green light rating. Since public colleges and universities are legally bound to protect their students’ First Amendment rights, any percentage above zero is unacceptable, so much work remains to be done.”