FIRE’s FAQ for Student Protests on Campus
Planning a campus protest — or already part of one? To help get to know your rights, here are some answers to questions we’ve seen come up time and again in over two and a half decades of defending students’ right to free speech.
I go to a public college. Can I protest on campus?
Yes. Public universities are government entities bound by the Constitution and students on public campuses have free speech rights protected by the First Amendment. Depending on where, when, and how you protest, public universities can set some reasonable, narrowly-tailored limits on your protest, but they cannot limit the views you express. (More on “time, place, and manner” regulations below.)
I go to a private college. Can I protest on campus?
Probably. Even though private institutions are not required to honor constitutional rights (which only apply to government actors, like public universities), the vast majority of private colleges promise their students the right to free speech. Schools with a religious or military-related mission sometimes prioritize other values over free expression, meaning your rights at those schools may be more limited. Be sure to check your student handbook or FIRE’s Spotlight Database to learn about your rights and your school’s campus demonstration rules. If your college promises you the right to protest, you should insist the administration keep that promise.
Are all forms of protest protected?
The First Amendment protects your right to speak your mind with only limited exceptions. But public colleges (and private ones with strong free speech protections) are allowed to maintain reasonable time, place, and manner restrictions on student speech in public areas of campus. These regulations must be viewpoint- and content- neutral rules on where, when, and how you can demonstrate on campus, in order to prevent disrupting the educational environment.
Even in open, outdoor areas where campus protests are common, colleges might restrict some or all use of amplified sound, setting up tables or other structures, camping, and overnight protests. To be constitutional, those rules must apply to everyone, no matter their viewpoint and even when they’re not trying to convey a message at all. For example, a college can prohibit loud amplification near school buildings during hours that classes are in session. But the rule has to be applied even-handedly. The school can’t allow the College Republicans to use a megaphone but forbid the College Democrats from doing so — or vice versa.
Keep in mind that these rules also have to be reasonable. It’s unlikely reasonable to, say, limit all demonstrations to a tiny corner of campus on weekdays between 4:00 p.m. and 5:00 p.m. to keep campus running smoothly.
What forms of protest are not protected?
The First Amendment does not protect unlawful conduct. If you engage in conduct while protesting that violates the law — such as violence, assault, vandalism, or underage drinking — you can face arrest and/or campus disciplinary proceedings. Other unprotected conduct (including speech) that can lead to arrest or disciplinary action includes:
- True threats and intimidation
- Incitement
- Discriminatory harassment
- Substantially disrupting events or deplatforming speakers
For a more detailed explanation of the First Amendment’s boundaries, check out this article by FIRE Legal Director Will Creeley.
Is civil disobedience free speech?
Civil disobedience is nonviolent unlawful conduct undertaken intentionally as a form of protest. Examples might include occupying a campus building or participating in a “die-in” that blocks traffic on a campus street. Acts of civil disobedience may strike onlookers as powerful because they reflect belief strong enough to violate existing law or policy. But students who engage in civil disobedience should realize that breaking the law — or campus policy — may result in consequences. And that price may include facing legal or institutional punishment by their college or university.
Can universities ban encampments?
Peaceful protest in open, outdoor areas of public university campuses is broadly protected by the First Amendment. Decades of court rulings make clear that a public university campus is a “traditional public forum”: a commonly accessible section of government property where expressive rights are at their height. Student protest on college campuses is a time-honored tradition.
But even in a traditional public forum like a university campus, the government can enforce reasonable time, place, and manner regulations on when, where, and how people protest.
Campus encampment bans rarely violate the First Amendment. Here’s why.
Does the First Amendment allow public universities to ban students from erecting tents and camping on school property? While campus encampments are expressive conduct, that’s not the end of the story.
Time, place, and manner regulations must meet three criteria to be constitutional. They must be:
1) “justified without reference to the content of the regulated speech,”
2) “narrowly tailored to serve a significant governmental interest,” and
3) “leave open ample alternative channels for communication of the information.”
(Source: Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 1984)
Whether time, place, and manner regulations are reasonable, and therefore constitutional, will be fact- and context-dependent in every instance.
For example, a university might properly regulate demonstrations so they don’t interfere with pedestrian or vehicular traffic, or restrict the use of amplified sound so expressive activities do not interfere with classes in progress. Those are likely reasonable, viewpoint- and content-neutral provisions that serve a significant governmental interest (i.e., keeping traffic flowing or allowing classes to continue) while still allowing student speakers other means to spread their message.
Some time, place, and manner restrictions may restrict the types of encampments in which students occupy tents or other similar structures, particularly when they sleep overnight or occupy the structures for extended periods. Even when camping overnight is undertaken as expressive conduct intended to communicate a message as part of a demonstration, the Supreme Court has held that rules banning overnight sleeping on public land may constitute a reasonable regulation on the manner of demonstrating, so long as the restriction is content neutral and reasonable under the circumstances.
Universities may often be able to demonstrate legitimate public safety and security interests that justify banning camping.
Too many universities, however, mistake their ability to impose time, place, and manner restrictions as free rein to excessively regulate student demonstrations or target controversial speech. Regulating only groups with particular views, relegating speech to just one or two small or out-of-the-way areas of campus, requiring prior administrative approval for all expressive activity, or banning the expressive use of tents outright, will not meet the above criteria for constitutional time, place, and manner regulations.
Note: Private schools that make First Amendment-like free speech promises should follow these rules when implementing time, place, and manner regulations.
Do I give up all my free speech rights if I participate in civil disobedience?
No. Even though the police or college officials can remove or punish you for disruptive activity like blocking traffic or interrupting classes, they can’t do so because they don’t like your message or point of view. Keep an eye out for uneven enforcement of ostensibly neutral rules in ways that target only controversial speech. For example, your college shouldn’t punish you or your student group more harshly than other groups in similar circumstances because administrators found your message upsetting, offensive, divisive, or because it drew ire, demanded extra security, or prompted counter-protest. And even in cases where punishment is warranted, students remain entitled to meaningful due process rights.
How can the police respond to my protest?
The police must use proportional and reasonable force to disperse protests that cross into unprotected conduct, such as those that turn violent; violate the law; violate reasonable time, place, and manner restrictions; or are substantially disruptive.
Is my right to protest the same indoors as outdoors?
No. While outdoor areas of campus have been viewed as traditional public forums where speech is entitled to significant protection and fewer limitations, courts have not viewed indoor spaces the same way. Some institutions, through policy or practice, create limited public forums in certain indoor areas, but colleges typically have significantly more authority to regulate indoor spaces. Because of concerns about disruption, noise, and even fire safety, colleges may generally impose more restrictive rules on what students can do inside buildings. By contrast, colleges have very little justification for suppressing a peaceful student protest on the quad or in other open, public areas of campus — and the law often backs up students in those circumstances.
Should I document what happens at our protest?
Yes! The authorities tend to be better behaved (in a legal sense) when video cameras are rolling. And if you are detained or arrested, a video can be the evidence you need to get out of the situation as fast as possible. Do all recording openly. Some states restrict recording that happens without someone’s knowledge.
Should I insist on my rights while I’m protesting? Even if I’m told to leave?
Absolutely. Know your rights, insist they are respected, and be aware that you may be better educated on those rights than campus administrators or police. For example, a number of public colleges across the country have policies limiting all demonstrations to small or out-of-the-way “free speech zones,” even though these zones rarely hold up in court. Politely but adamantly insisting that you have the right to be somewhere may be effective, especially if you or a member of your group is recording the interaction.
What if I’m told I can’t demonstrate without a permit?
You should be allowed to engage in expressive activities — like holding up a sign, leafleting, or petitioning for signatures — by yourself or in groups without a permit in outside areas of campus open to all students. If you are not disrupting classes or blocking people or traffic, your activity should be protected by the First Amendment or private colleges’ similar policies. Colleges sometimes have overly restrictive policies forbidding all expression without a permit, or policies against “solicitation” that they use to prevent all leafleting and petitioning. If you come across such policies, they may be unlawful, and you should let FIRE know.
Can my school ban all protests?
Absolutely not. While public colleges (and private ones with strong free speech protections) may impose reasonable time, place, and manner restrictions on protests to ensure there is no disruption to the functioning of the college, these policies may not unreasonably restrict the right to peacefully protest.
The Long, Necessary History Of ‘Whiny’ Black Protesters At College
Students at the University of Missouri protested this fall amid concerns about the administration’s handling of racial issues.
Jeff Roberson/AP
A few weeks ago, I was chatting with a young black woman who recently graduated from Louisiana State. I asked her how she liked it there. She smiled, then sighed in exasperation. Without prompting, she brought up race. She had enrolled at LSU knowing Louisiana is one of the blackest states in the country, but once she got to campus, she realized black students made up a proportionately tiny fraction of the student body.
A football fan, she quickly figured out that going to tailgating parties on Saturdays meant stomaching the many Confederate flags on display, often in purple and gold, the university’s colors. Oh, and there was a recent controversy that blew up on Twitter over a photo taken on campus of what appeared to be a noose — it turned out not to be, but such was the racial climate there that black students found it entirely plausible. She loved LSU, she told me, but by the time she graduated, she was exhausted by the feeling that it wasn’t mutual.
Ask any person of color who went to a predominantly white university what college was like for them, and you’re likely to get an appraisal of the racial dynamics at their alma maters. I’ve been hearing these recollections a lot lately, as black college students across the country from Yale to Ithaca to Mizzou have become increasingly vocal about issues of safety and belonging on their campuses.
This agitation is playing out at a time when higher education is more explicitly discussed in the language of the marketplace — “best values,” “most lucrative majors” — in which students see their relationships to their universities in more transactional terms than previous generations did. They’re not just students, but stakeholders. A student protester at Ithaca College recently made this explicit. “As customers, when we don’t like the product, we complain,” he told Fusion. “When a manager keeps ignoring what the customers are complaining about — there’s a problem.”
Critics in the media and academia have rolled their eyes at black students’ claims of “trauma” and calls for “safe spaces.” They point to a few instances of ill-conceived, ham-fisted protests by some of these student activists as evidence that their complaints are, at best, embarrassing and childish and, at worst, evidence of the advancing forces of political correctness. This is the Jonathan Chait school of thinking on today’s campus politics, and we’ve come to expect both its dismissiveness and its failure of imagination as to the campus experiences of students who don’t look like the average Ivy Leaguer.
But a fair number of post-collegiate black folks I’ve talked to have also expressed these sorts of sentiments toward the campus protesters, suggesting they’re “whiny” and “entitled.” To be sure, there’s a different tenor to their bristling. They’re less likely to suggest that today’s black students are suffering from paranoid delusions of discrimination on campus because they lived through much of the same. The good ol’ boy antagonism of Old South Week, the annual parade of blackface/brownface parties around Halloween, the testy run-ins with campus police who think you’re trespassing. In fact, it’s because so many older black folks survived a gantlet of racial jankiness in college that they’ve adopted a “kids these days” attitude toward today’s protesters and their grievances.
“I just have too many calluses to see some of these things as injurious,” a friend told me recently. She runs the black alumni organization for her alma mater, a well-known Midwestern college, and recalled a tense recent meeting on campus between current black students and black alums, some who had graduated pretty recently, others many years back. (She didn’t want to out her school by name, to protect the current students and alumni who were at the meeting.)
At the meeting, the students offered complaints that sounded a lot like those of black undergrads protesting at other universities: a broad feeling of exclusion, along with more pointed instances of antagonism, including defacement of a public display that was put up in support of black students and having racial slurs yelled at them. My friend said she understood their frustrations — it sounded like stuff she went through on that campus two decades ago.
But when she chatted with some of the other black alumni after the meeting, they weren’t as sympathetic. One of them, an older man who graduated from the college in the 1960s, was particularly unmoved. “He said they were coddled and indulged and they’ve grown unaccustomed to hardship,” my friend recalled.
That line of thinking suggests that in his day, black students were somehow more able to shrug off racial antagonism and keep it moving. But were they? His cohort, the black Baby Boomers who went to college, attended schools that had in many cases integrated only recently, and not always willingly. This tension is on display in a guide created by black students at Washington University in St. Louis in 1969 as a way to help incoming peers navigate college life there.
The guide cautions that there were few black professors or administrators to be found and little social integration of black students into the broader campus life. “This is a predominantly white school, and therefore is oriented to white wants and needs,” it reads. That student guide was created after a black student group on campus wrote a manifesto to the university’s administration, calling for a permanent meeting place set aside for black students — what “coddled and indulged” kids today might call a “safe space” — as well as the creation of a black studies department, sensitivity training for the university’s faculty and staff and the recruitment and promotion of more black professors.
A look at historian Ibram Kendi’s account of black student activism of that period, The Black Campus Movement, makes it clear that agitation for more resources, more active inclusion, more safe spaces and more black faculty has been a through-line for black students on university campuses for generations. Indeed, a young man named Barack Obama engaged in exactly this sort of demonstration as a Harvard law student in the early 1990s. And for as long as black students have been asking for these accommodations, critics have been painting them as unreasonable, entitled and dangerous.
One difference between the oldheads and today’s student protesters is an emphasis on curtailing “microaggressions” — those less obvious and more mundane instances of racial antagonism or ignorance. “I mean, you’re asking me to solve racism,” said my friend who runs the black alumni group. She knows how to push the administration to hire more diverse faculty. But how do you create a five-point plan around getting people to stop saying things like, “It’s almost like you’re not black” and reaching to touch people’s natural hair?
It’s easy for those of us with some distance from college to dismiss all this “microaggression” talk; we tend to forget how acutely we once felt those same slights, how often we commiserated over them, and what a disadvantage we were at not even having a name to put to these kinds of interactions. We may not be fully appreciating the necessary role that events like #ITooAmHarvard, a hashtag campaign in which non-white students shared the kinds of messages they’d really like white students to stop directing at them, play in reshaping social norms in ostensibly shared social spaces. (The fact that those efforts can seem poorly thought-out or heavy-handed is a function of them being executed by 19-year-olds.) We call them “entitled” while dismissing the work they’re doing to solve their problems.
Parul Sehgal writes about the disdain for contemporary campus protesters in an essay at the New York Times Magazine about the suggestion that today’s black college protesters simply need to show more “resilience” and “grit” in the face of racial discomfort. This prescription sidesteps “the very hard questions about inclusion and diversity that their protests are meant to raise,” she writes. “By playing down the racism that the students have faced, it’s easier to frame the protests as tantrums, products of brittle spirits, on a continuum with grade grubbing. Somehow, demands for resilience have become a cleverly coded way to shame those speaking out against injustices.”
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They also ignore that the increased volume of this fall’s protests comes on the heels of profound demographic shifts in American higher education over the past few decades. More Americans are going to college across the board, but enrollment among blacks and especially Latinos has jumped dramatically since the mid-1990s. And even as colleges and universities tout that their incoming freshman classes will be their most diverse ever, the high schools that produce each new freshman crop remain thoroughly and increasingly racially segregated. What we’ve seen in this year’s campus turmoil is the inevitable collision of these trendlines. This is a point we keep coming back to at Code Switch: making space for black and brown people in the name of diversity can’t work without preparing for the fact that their presence will necessitate new, sometimes awkward, sometimes disruptive adaptations and considerations.
“The protests are not really about Halloween costumes or a frat party,” Aaron Lewis, a Yale senior, wrote at Medium about the campus turmoil there. “They’re about a mismatch between the Yale we find in admissions brochures and the Yale we experience every day. The university sells itself as a welcoming and inclusive place for people of all backgrounds. Unfortunately, it often isn’t.”
It’s also worth considering how counterintuitive the logic of “resilience” and the idea of “building up calluses” might seem to contemporary undergrads, whose high school and college careers have overlapped a wave of influential, geographically dispersed protest movements helmed largely by social-media-savvy young people, from Occupy to campus shutdowns over tuition hikes and Trayvon Martin to Black Lives Matter. The student-led protests this fall have resulted in some small, concrete changes and some big, possibly historic ones, including the resignation of top administrators at two schools so far. And in the age of social media, college administrators’ traditional tactic of simply waiting out unruly students — there’s always a semester break or graduation around the corner to dampen momentum — works less reliably. In the face of all this, are we really surprised that student protesters aren’t hearing the oldheads who tell them to sit down and tough it out?
Or, as my friend who runs the black alumni group at her alma mater put it, “There’s a very thin line between telling students that they have to learn to navigate a racist world and telling them that racism is a thing they should have to tolerate.”
