The December 2007 issue of the University of Texas Law Review features a student note on the expressive rights of the collegiate student press. The article argues that courts should not apply traditional forum analysis when reviewing university regulations of student publications. Instead, the author, Lauren Tanner, advocates for an analytical framework which she claims is more in tune with a university’s educational needs, the principles of academic freedom, and the role of the modern university as a true marketplace of ideas.
To this end, Tanner proposes that any court reviewing a university regulation of the student press focus its analysis on two fundamental inquiries. First, does the regulation have the purpose of enhancing the marketplace of ideas? In other words, does the university have the purpose of “shap[ing] the university marketplace in an effort to serve an educational function, such as stimulating a multiplicity of voices, increasing informational accuracy in the market, or sparking critical discussion and debate?” Second, does the regulation effectuate this purpose? The first prong is subjective and depends on the university’s own view of what its marketplace of ideas is to be, while the second prong entails an objective assessment of the regulation’s effectiveness.
FIRE is always excited to see new legal scholarship on important First Amendment issues in higher education, and this is no exception. There is a strong need within the current campus climate for proficient scholarship advocating for the advancement of speech rights, associational rights, freedom of conscience, and other campus liberties. It is our hope that the publication of such scholarship will help to better inform people about these issues, so that the rights of students and faculty across the nation are improved over time.
At the same time, FIRE sees some fundamental problems with Tanner’s argument. For one, under her proposed framework it would be permissible for a university to regulate “hate speech” in the student press because doing so “stimulates a multiplicity of voices.” In other words, Tanner accepts the dubitable claim that hate speech has the effect of keeping offended minorities out of the marketplace of ideas, and it is therefore acceptable for a university to regulate the student press to prevent this from happening. As FIRE has pointed out time and time again, however, there is no First Amendment exception for hate speech. Proscribing hate speech is simply inimical to the First Amendment and to the values of free speech in a modern free society.
So while FIRE is appreciative of this contribution to the legal literature on First Amendment issues in higher education, we retain a great deal of skepticism for any argument that universities should be in the business of policing the student press. Stay tuned to the Torch for more discussion of FIRE’s take on Tanner’s article.