Free speech, public universities, and state actors as First Amendment speakers

In an earlier post, Paul discusses Eugene Volokh’s post on USC’s recent suppression of a student performance, and asks whether there might be interplay between this issue and my draft paper that considers state actors as First Amendment speakers. To take Paul’s hypothetical, let’s imagine that a public university like UCLA had suppressed the kind of demonstration that took place this week at USC.

At first glance, this seems an easy case. The Constitution obviously prohibits state actors like UCLA from suppressing individual speech like a student performance, right? The question becomes more complicated if we think of the university itself as an object of First Amendment protection. This moves us from a traditional free speech dyad (government oppressor v. individual speaker) to a scenario in which the student’s right to express himself through performance lies in tension with the university’s possible claim that the suppression of the speech itself amounts to an expressive act worthy of constitutional protection. How to resolve this tension?

My paper suggests thinking about this problem in terms of both the institution at issue and the substance of the speech. In Bakke and Grutter, the Supreme Court has suggested that certain core functions of public universities—e.g., selecting a student body, crafting a curriculum—warrant constitutional protection. My initial instinct is that a court wouldn’t consider suppressing a student performance to be this kind of core function because it doesn’t seem to further the university’s educational mission (though UCLA would likely come back with the argument that suppressing offensive speech creates a more tolerant and hospitable learning environment). On the other hand, it’s worth noting that in a similar case the California intermediate appeals court held that the UC Board of Regents could lay claim to First Amendment-based defamation defense when it was accused of suppressing a local demonstration. Nadel v. Regents of the Univ. of Cal., 28 Cal.App. 4th 1251, 1254-55, 1258 (Cal. Ct. App. 1994).

The problem with a purely institutional analysis, though, is that there are risks involved with giving state actors a broad ambit of control over their internal affairs. The UCLA hypothetical illustrates the point: the university could defend as constitutionally protected free speech claims its suppression of offensive student performances, or more disturbingly, of controversial student opinions expressed in editorials or speeches. One solution to this problem would be to subject the substance of the state actor’s expression to something like a good-faith test, in order to make sure that the state actor isn’t disingenuously leveraging its constitutional prerogatives to engage in precisely the kind of behavior that the First Amendment aims to protect. To return to the hypothetical, I suspect UCLA would fail such a test, since the speech it’s trying to suppress (edgy, politically tinged dissent) seems a core type of constitutionally protected expression (the same would probably be true of a public university ordering a professor to remove political cartoons from his office).

     I’m glossing over a lot of the details, but long story short, based on my admittedly pragmatist take, I’d be skeptical that a state actor could state a First Amendment defense in a public-university analogue of the USC incident. Thanks to Paul for raising this interesting question.