Content-neutral to content-discriminatory and the changing nature of campus protests

Great conversation among Jane Bambauer, Eugene Volokh, and Erwin Chemerinksy on the Free Speech Unmuted podcast.

I will flag the conversation at the end of the hour-long discussion--when and why schools might choose not to enforce their content-neutral campus regulations against expressive activities and how failing to enforce now might disable future attempts to enforce against different groups or positions. That is,allowing a pro-Palestine group to occupy the quad or block the entry gate in violation of campus rules may render future efforts to enforce facially neutral regs against a different group content- or even viewpoint-discriminatory, at least in the near term.

The discussion offers another example of how the changing nature of campus speech--which I discuss here and here--creates new problems for university administrators. When campus protests focused on a limited number of issues about which there was general agreement, universities could afford non- or under-enforcement of neutral TPM regs because no other group or speakers wanted to use those same spaces. No pro-nukes or pro-draft groups wanted to occupy the quad or block the gate, even if they disagreed with the anti-draft occupiers. And there were not other groups seeking to use the space to speak on other issues. Offering leeway to anti-nuke campers thus did not risk opening the space up to all groups for the near future. Not so, going forward, as Erwin argues. If a pro-Israel group wants to block the campus gate at Berkeley or an anti-choice group wants to occupy the lawn, the university cannot enforce those TPM regs more strictly than it has been doing now.