New Case Sets Potentially Dangerous Precedent for Free Speech on Campus

By June 5, 2007

On June 1, the U.S. Court of Appeals for the Ninth Circuit held in Flint v. Dennison that the University of Montana could lawfully prohibit candidates for its student government, the ASUM, from spending more than $100 on their campaigns. By contrast, the U.S. Supreme Court held in Buckley v. Valeo that the First Amendment prohibits the government from imposing such limits on candidates for governmental office. Thus, in deciding Flint, the Ninth Circuit drew a distinction between state universities and other governmental entities when it comes to the application of the First Amendment—a distinction that could set a dangerous precedent for free speech on campus.

“We should not apply the principles of Buckley without first considering whether the university setting affects our First Amendment analysis,” the court wrote, citing an Eleventh Circuit decision holding that in the university setting, “constitutional protections must be analyzed with due regard to that educational purpose.” These broad statements could be used to erode all kinds of free speech rights on campus.

Moreover, in reaching its decision, the Ninth Circuit drew a specious distinction between student government elections and state or national elections. The court wrote that “in contrast to participation in state or national politics, participation in ASUM student elections is limited to ASUM-enrolled University students—students must maintain at least a 2.0 grade point average to run for office and only students are allowed to vote in the election.” But aren’t there similar limits on who can run for state or national office?  An individual must be at least 35 years old to run for President of the United States, and must be a natural-born citizen of the United States (as opposed to a naturalized immigrant.) To be in Congress, one must be at least 25 years old and have been a U.S. citizen for 7 years, and must be an inhabitant of the relevant state or district. Numerous states maintain similar candidacy requirements.

It is ironic that a court would treat a college—which is supposed to be a place of especially unfettered free expression, a ‘marketplace of ideas’—as a place where the First Amendment might have less application. The protections of the First Amendment should apply as strongly to public colleges and universities as they do to other governmental entities.