Talking Stick - September/October 2010 - 32

ThE LETTER oF ThE LAW

The FirsT AmendmenT
“ConGRESS ShALL mAKE no LAW RESPECTinG An ESTABLiShmEnT oF RELiGion, oR PRohiBiTinG ThE FREE ExERCiSE ThEREoF; oR ABRiDGinG ThE FREEDom oF SPEECh, oR oF ThE PRESS; oR ThE RiGhT oF ThE PEoPLE PEACEABLY To ASSEmBLE, AnD To PETiTion ThE GovERnmEnT FoR A REDRESS oF GRiEvAnCES.”

ways, sometimes appearing to be open to a number of different interpretations. In the United States, there are three amendments of the federal Constitution that have the most direct impact on college and university housing: the First Amendment (primarily as it relates to the areas of freedom of speech and the free exercise of religion), the Fourth Amendment (which addresses freedom from unreasonable searches and seizures), and the Fourteenth Amendment (as it relates to due process and equal protection). It should be noted that these laws apply only to staterun institutions unless the private college in question is engaged in “state action.” For example, if a college within a private university were operated by the state, that college would be engaged in “state action.” In most instances private institutions are not engaged in this way. Even the receipt of federal or state funds does not, by itself, constitute state action. Different states may, however, have state statutory or constitutional provisions that apply to private institutions (see Corry v. Leland Stanford University, Case No. 740309,  Cal. Super. Ct., Feb. 27, 1995).

v. Ohio, 395 U.S. 444 [1969]). The Supreme Court has said that “It is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers” (Street v. New York, 394 U.S. 576 [1969]). We may recognize that certain speech is offensive and even hurtful to a particular group, but we have to consider this in the context of the Supreme Court’s proclamation that “All ideas having even the slightest social importance – unorthodox ideas, controversial ideas, even ideas hurtful to the prevailing climate of opinion – have the full protection of the guarantees, unless excludable because they encroach upon the limited area of more important interests” (Roth v. United States, 354 U.S. 476 [1957]). How do campuses respond to situations in which free speech might be offensive? In some cases, in order to avoid First Amendment challenges, a campus will not allow any materials to be displayed in windows, on doors, or on personal bulletin boards and will restrict materials on hall bulletin boards to those placed there by the housing staff. Once individuals are allowed to post materials on hall bulletin boards, access cannot be denied to someone who wants to include potentially offensive materials. The First Amendment is also important in helping to resolve the issue of solicitation in the residence halls. In 1984 the Third Circuit Court of Appeals upheld Penn State University’s policy of prohibiting the use of residence hall areas for the benefit of commercial companies, but allowing students to invite vendors to their rooms to transact business. However, students were not permitted to hold sales demonstrations in their rooms to which other students would be invited. The Court said, “Penn State’s regulation banning group commercial solicitation in its students’ dormitory rooms is constitutional because it directly advances the university’s substantial [governmental] interest, as property owner and educator, in maintaining

SPEAK FREELY
The First Amendment of the United States Constitution states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” On a college or university campus, this lofty language and powerful free speech protection clause is often cited in regard to the potentially objectionable items that students display on their room doors, in windows, or on their personal bulletin boards. Higher education institutions are not required to allow students to do this; but, if they do, the institution “may not restrict speech . . . simply because it finds the views expressed by any group to be abhorrent” (Joyner v. Whiting, 477 F. Supp. 466 [4th Cir. 1973]; Brandenburg
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Talking Stick - September/October 2010

Table of Contents for the Digital Edition of Talking Stick - September/October 2010
