Folklore among the University of North Carolina (UNC) professoriate holds that free speech is constantly under assault from nefarious external forces. This oral tradition deems the state legislature a constant threat to free speech, and such claims have accelerated since Republicans gained control of the state house and senate after the 2010 elections. Such claims are inconsistent with the facts.
The oral tradition includes two distinct elements:
Threats to free speech in the UNC System come mainly from the outside, principally from the state legislature.
Threats to free speech in the UNC System come mainly from the political Right.
Both elements of this tradition are incorrect. Fifty years ago, it was a divided Democrat-controlled state government that imposed a speaker ban still remembered today. The state ban lasted less than three years before the power to ban speakers was handed over to individual universities, which dutifully enforced their own bans. Ever since 1965, the primary antagonists to free speech on campus have come from within the university. In recent years, in contrast, a Republican-controlled state government has emerged as the champion of campus free speech.
The present paper provides a brief overview of the relevant history in order to correct the record.
The 1960s and the UNC Speaker Ban That Divided Democrats
The first national controversy involving free speech in the UNC System came with the now infamous speaker ban passed by the North Carolina General Assembly in 1963.1 The act banned colleges and universities that received any state funds from letting disfavored speakers use campus facilities. It was a blatant violation of First and Fifth Amendment rights, targeting “known” members of the Communist Party, “known advocates” of the “overthrow” of the U.S. or state Constitution, and individuals who had pleaded the Fifth Amendment privilege against self-incrimination with regard to communist “connections” or other “subversive connections” or “activities.”
Democratic Representative Phil Godwin had introduced the bill in response to concerns that communists were spurring race-focused civil rights protests on several UNC campuses and beyond. According to accounts from the time, it was widely understood that the primary motivation for the bill was anti-black rather than anti-communist sentiment.2 Anti-communist laws had persisted for decades and, in that era, provided a safer route to constitutionality.
Such laws were surviving constitutional review under the then-authoritative “clear and present danger” doctrine. Cases in which the government had successfully employed the “clear and present danger” test as a rationale for suppressing subversive speech were Whitney v. California (1927) and Dennis v. United States (1951), following in the speech-restrictive tradition of Shaffer v. United States (1919), Schenck v. United States (1919), and Gitlow v. New York (1925).
The idea that the 1963 bill was more about race than about communism gains further support from the fact that the bill’s anti-communist proscriptions were hardly needed on campus. Since 1941, North Carolina’s anti-subversion act had made it unlawful by word of mouth or writing, willfully and deliberately to advocate, advise or teach a doctrine that the Government of the United States, the State of North Carolina or any political subdivision thereof shall be overthrown or overturned by force or violence or by any other unlawful means.3
by word of mouth or writing, willfully and deliberately to advocate, advise or teach a doctrine that the Government of the United States, the State of North Carolina or any political subdivision thereof shall be overthrown or overturned by force or violence or by any other unlawful means.3
The 1941 law also had banned use of any public building statewide for such a purpose. John Gates, a known communist, had been banned from speaking at UNC–Chapel Hill in 1949. Other communists had been banned from speaking on campus throughout the next decade, and the university also had an anti-communist faculty loyalty oath throughout the 1950s.
The 1963 bill was hardly needed to limit on-campus speech that, after all, could easily continue off campus. Rather, the bill indirectly but intentionally targeted speakers who might encourage off-campus civil rights protests. Nevertheless, the 1963 bill did go much farther than the 1941 law. Only the advocacy of “unlawful means” triggered the 1941 ban, but the 1963 bill targeted all advocates of “overthrow” (including those who advocated lawful means) as well as mere members of the Communist Party, if known, and people who refused to say whether or not they were members.
Immediately after the bill cleared the House, Democrat Clarence Stone rammed the bill through the Senate. It is notable that North Carolina’s Democratic governor Terry Sanford opposed the bill. An effort by legislators to recall the bill failed, and Sanford lacked the power to veto legislation. The bill became law in the face of enormous but outflanked opposition, and fifteen senators registered opposition to the law’s abridgment both of free speech and universities’ academic freedom.4
Since it went so far beyond the 1941 law and had so many critics, the 1963 law faced an inevitable constitutional challenge. In 1963, the UNC Board of Trustees was a champion of free speech and academic freedom, resolving to fight the law. In 1964 and 1965, UNC’s accreditor, the Southern Association of Colleges and Schools, added pressure by threatening UNC’s accreditation due to the legislature’s encroachment on the university’s independence.5
But by late 1965 UNC became the oppressor in place of the state legislature. In order to win academic freedom back from the legislature, on November 12, 1965, the UNC Board of Trustees had passed a new, unconstitutional policy declaring the board “unalterably opposed to Communism and any other ideology or form of government which has as its goal the destruction of our basic democratic institutions.” The board’s policy argued that campus visits from speakers banned by the legislature should be infrequent and then only when it would clearly serve the advantage of education; and on such rare occasions reasonable and proper care should be exercised.…The campuses shall not be exploited as convenient outlets of discord and strife.6
infrequent and then only when it would clearly serve the advantage of education; and on such rare occasions reasonable and proper care should be exercised.…The campuses shall not be exploited as convenient outlets of discord and strife.6
The UNC policy was unconstitutional, first, because it subjected to prior review and potential restraint, on the basis of content and viewpoint, every student club’s request to host a visiting speaker. Clubs were required to reveal to the university chancellor the “proposed speaker’s topic” and “biographical information about the proposed speaker.” The university was empowered to reject the speaker. The chancellor also was empowered to compel additional speech at the speaking event by hijacking it so as to include “speakers of different points of view.”7 This too was unconstitutional.
Satisfied that the university was fully prepared to limit disfavored expression on campus, the legislature altered the 1963 law. Its new form in 1965, the “Little Speaker Ban Law,” no longer required universities to ban the disfavored speakers, but instead required them to have policies regarding those speakers. The legislature acted knowing that UNC’s policies were as restrictive as desired. The threat to free speech was no longer external to UNC; it was internal to the university.
Some speakers were banned and did not sue, but the First Amendment challenge soon materialized. In 1966, two known communists attempted to speak on the UNC flagship campus in Chapel Hill. After they were barred from speaking, UNC students sued. The defendants were UNC officials. Two Republican judges and one Democratic judge in 1968 found UNC’s policy unconstitutional due to vagueness, not only as applied to the students’ invitees but also as a matter of policy.8
The state law would not be repealed by the General Assembly until 1995. It simply sat on the books in infamy for another twenty-seven years.
The 1990s to Today: New Threats from Within
The 1963 speaker ban, replaced by UNC’s 1965 restrictions, has probably garnered more attention over the years than any other threat to speech in the UNC System. Yet, the extent of its threat to free speech was mild in comparison to the dangers that campus speech codes presented to students and faculty members throughout the UNC System during the 1990s. It is therefore ironic that by the time the legislature rescinded its law in 1995, most UNC campuses had voluntarily imposed new speech codes that banned a much broader range of speech than UNC’s speaker ban did.
In 2005, the Foundation for Individual Rights in Education (FIRE, where Adam Kissel, a co-author of this paper, later worked) joined forces with the Raleigh, North Carolina-based John W. Pope Center for Higher Education Policy to evaluate the state of free speech at the level of policy throughout the then-sixteen-campus UNC System. The joint report, The State of the First Amendment in the University of North Carolina System, published in 2006, employed FIRE’s three-category rating system:
Green Light: schools with no policies violating the First Amendment
Yellow Light: schools with at least one unconstitutional policy that is vague or otherwise easily abused by administrators to restrict speech
Red Light: schools with at least one policy that clearly and substantially violates free speech rights 9
The report showed that thirteen of the sixteen schools in the UNC System deserved a “red light.” Examples of unlawful speech codes included the following:
Appalachian State University banned “insults, taunts, or challenges directed toward another person”
North Carolina Central University outlawed “statements of intolerance”
UNC Asheville demanded that speech “respect the dignity of all persons”
UNC Greensboro outlawed speech that fostered “disrespect for persons”10
Many such codes, in one form or another, persist across most of the UNC System schools to this day.
Meanwhile, UNC–Chapel Hill had begun to violate freedom of expressive association. In late 2002, letters to numerous belief-based student groups from UNC–Chapel Hill administrator Jonathan Curtis showed that the university was interfering with the groups’ free association rights. Curtis threatened these groups with de-recognition, which meant losing the rights that recognized groups enjoyed, due to language in their constitutions deemed to be “un-inclusive” or “discriminatory.” Mostly targeting Christian groups, the letters demanded the groups remove policy language ranging from specific requirements that officers subscribe to “orthodox Christian beliefs” to more general requirements that voting members “believe in God.”
In fall 2003 Alpha Iota Omega (AIO), an evangelical Christian fraternity, was stripped of its recognition for refusing to sign a “nondiscrimination” clause that would have allowed students “membership and participation” in the group and its evangelical messaging even if they disagreed with the group or its mission. Effectively, Jonathan Curtis, an employee of the state, was telling a religious group who should be officially allowed to represent a religious group in order to help that group recruit people into the church.
The obvious First Amendment threat posed by UNC’s effort to ban “discrimination” was the subject of a letter from FIRE to UNC administrators in July 2004. The letter explained why the university’s effort to ban “discrimination” violated the First Amendment. Regrettably, UNC ignored the letter.
In August 2004 AIO sued the university. In March 2005 a federal district court issued an injunction prohibiting UNC from enforcing its policy. Shortly thereafter, UNC–Chapel Hill changed its policy to recognize beliefs as an acceptable membership requirement: Student organizations that select their members on the basis of commitment to a set of beliefs (e.g., religious or political beliefs) may limit membership and participation in the organization to students who, upon individual inquiry, affirm that they support the organization’s goals and agree with its beliefs.11
Student organizations that select their members on the basis of commitment to a set of beliefs (e.g., religious or political beliefs) may limit membership and participation in the organization to students who, upon individual inquiry, affirm that they support the organization’s goals and agree with its beliefs.11
When the Pope Center and FIRE published their free speech report in 2006, they found that that the majority of the sixteen UNC campuses still had “nondiscrimination” clauses that forced belief-based groups to extend “membership and participation” in the groups to those who disagreed with the group’s mission.12 These policies were effectively identical to the one that led to UNC–Chapel Hill’s losing lawsuit.
Once again, the threats to free speech in the UNC System were internal and did not come from the political Right, while outside organizations—the Pope Center, FIRE, and ultimately a federal court—were the champions of free expression for students and student organizations.
2010–2014: CLS v. Martinez and a Republican-Controlled General Assembly’s Return to First Amendment Rights
The issue of free association rights of UNC student groups appeared to be settled after a series of Supreme Court decisions ensuring that universities may not discriminate against student groups on the basis of viewpoint. A surprising twist came in June 2010 in Christian Legal Society v. Martinez, written by Justice Ruth Bader Ginsburg. Despite its limited applicability, many civil libertarians roundly criticized the opinion for its obviously discriminatory effects.
Prior to the ruling, the Christian Legal Society (CLS) had limited membership to those who subscribe to orthodox Christian doctrine. The group also imposed behavioral requirements on its leaders: sex outside of heterosexual marriage was considered to violate the group’s fundamental teachings. After homosexual law students complained about the existence of a CLS chapter and its belief-based requirements at University of California, Hastings College of the Law in San Francisco, California, the law school found it easy to side with the student critics against CLS.
To accomplish the goal of marginalizing CLS, the college claimed to have an “open membership” or “all-comers” recognition policy that applied to all groups, not just orthodox Christian ones. That is, every group had to be fully open to any Hastings student, regardless of belief and regardless of behavior that violated the group’s beliefs. In reality Hastings did not have a true “all-comers” or “open membership” policy. For example, the school recognized the student group La Raza despite the fact that its membership requirements were based on beliefs: members had to hold certain beliefs about immigration and Mexico’s “rightful claim” to U.S. land. Nevertheless, CLS was the only organization in line for de-recognition.
By the time the case was decided by the Supreme Court, a plurality of the Court had limited itself to the abstract question of whether such a membership policy imposed by a college was constitutionally acceptable—not whether Hastings was applying its newfound policy in a discriminatory way. Once the general idea of an all-comers recognition policy for all groups was the only active question, the Court focused on the neutrality of the policy more than on its discriminatory effects and determined that the policy was acceptable.
Ginsberg’s opinion attempted to minimize the negative impact of the decision on freedom of association in two ways.
First, the Court acknowledged that Hastings would have been in clear violation of CLS members’ free association rights had they singled out CLS by refusing to let the group determine its own beliefs, apart from official recognition. But since Hastings had claimed to be applying the policy to everyone, there was no constitutional problem. In other words, if one agrees that conditioning recognition on giving up associational rights is a First Amendment violation, it would be wrong to violate one group’s rights but permissible to violate the rights of all groups. It bears repeating that the Court accepted the school’s false claim that it was applying the policy to all groups. Nevertheless, no university gets a free pass under CLS v. Martinez if caught by a court for pretending that it has an all-comers policy in order to limit support for a particular group or set of groups.
Second, the Court asserted that the consequences of de-recognition would not be sufficiently problematic at Hastings. Although unrecognized groups could not access student activity fees or have equal access to the campus and its facilities, Hastings had made it clear that the group could continue to meet and recruit members. CLS could use social media to recruit and could meet off campus to pursue its protected First Amendment activities.
Notwithstanding these limitations, the Court let Hastings condition recognition on allowing anti-CLS activists to infiltrate CLS—just like segregationists once did to the NAACP. If a group instead chose to protect its rights of expressive association, the Court condoned Hastings’s discriminatory treatment of that choice by excluding the group from benefits—effectively telling CLS to sit in the back of the bus. Groups without strong official beliefs, in contrast, have little need for expressive association rights, face no crisis of conscience, and get to sit in the front.
Although the CLS decision should not have had an impact on the UNC System, it did. In August 2010, just two months after the decision was released, the UNC Office of General Counsel sent a memo to all student organizations on all seventeen UNC campuses. The memo required the groups to sign a new nondiscrimination clause that would keep them from “discriminating” on the basis of belief. The memo specifically asserted that CLS required this new UNC nondiscrimination clause.
But the UNC System memo was legally erroneous for two reasons:
CLS v. Martinez did not require universities to do anything. The question decided was, strictly, whether Hastings was permitted to adopt an all-comers policy as a condition of recognition. There was never any imposition from Justice Ginsberg or other Supreme Court outsiders on any public university. Every university remained free to implement a viewpoint-neutral policy of its choosing.
CLS v. Martinez did not permit every “nondiscrimination” policy but only a broad-based “all-comers” policy that required all groups to be open to all students. Since all seventeen campuses in the UNC System had fraternities and sororities, which limited membership on the basis of sex, in addition to various groups that selected on the basis of auditions or other merit, there was no true “all-comers” policy on any UNC campus.
Not only was UNC not required to respond to CLS, but UNC was not permitted to enforce an unevenly applied nondiscrimination policy under the shade of the decision. The facts of the case had no application to any UNC campus unless it decided to discriminate against belief-based groups. Yet again, the threat to freedom of expressive association was entirely internal to the UNC System, and did not come from the political Right.
Fortunately, in fall 2012 North Carolina legislators learned of UNC’s attempt to impose its nondiscrimination policy on student groups under a false interpretation of CLS. By this time, the discriminatory applications of UNC’s policy—which was not an all-comers policy—had become clear. For example, UNC–Chapel Hill was letting groups determine their own membership requirements, largely because they had been sued by Alpha Iota Omega, but other campuses were not allowing self-determination because of the memo from the UNC Office of General Counsel. UNC was in danger of facing a future lawsuit pointing out the discriminatory treatment of student groups inconsistent with CLS.
To resolve the issue in favor of associational rights, North Carolina legislators introduced a bill modeled on a religious freedom statute in Ohio. The Ohio law recognized that student groups had full autonomy in determining general membership, voting membership, and officer requirements. In other words, the law (Code Sec. 3345.023) gave student groups full control over their own beliefs and discipline.13
The North Carolina bill died in the Senate in summer 2013, but it rose again for the 2014 legislative session. With the support and attention of three additional groups outside the UNC System—FIRE, the North Carolina Family Policy Council, and the Pope Center—the bill easily cleared both the House and Senate. North Carolina governor Pat McCrory signed Senate Bill 719 into law in July 2014.14
2012–2016: Free Speech Loses, Then Wins on Campus
Meanwhile, UNC campuses continued to violate the free speech rights of students and faculty as described in the 2006 Pope Center/FIRE report. Several UNC campuses, at least, had modified some of their policies in order to reduce exposure to losing litigation. Chapel Hill was among them. Its “red light” rating had been due largely to a list of sexual harassment examples that implied an outright ban on a significant amount of protected speech, including “sexually explicit jokes or anecdotes” and course material “that condones or promotes sexual harassment,” therefore forbidding from the classroom novels, films, and Bible narratives with characters who unapologetically commit sexual harassment or assault, regardless of how the professor would address those materials in class. “Barking,” “ogling,” “whistling,” and “leering” also had been banned.15
Of course, such speech and course materials do not rise to the level of unprotected obscenity or another category of unprotected speech. In the student-against-student context, speech does not rise to the level of actionable sexual harassment until it is discriminatory conduct, which the Supreme Court identified in Davis v. Monroe County (1999) as being severe, pervasive, and objectively offensive enough that a reasonable, targeted victim would have a discriminatory educational experience because of the conduct. Speech alone rarely comes close to that standard. Because UNC–Chapel Hill had no leg to stand on, it wisely had removed such overly broad prohibitions from its website a few years after the 2006 report exposed the policy.
In 2012, however, the very same ban on “sexually explicit jokes or anecdotes” and other such unconstitutional examples of “harassment” reappeared at UNC–Chapel Hill. Fortunately, this revelation created a backlash from a variety of sources, led by members of the editorial board of the campus paper, the Daily Tar Heel, with support from FIRE. FIRE senior vice president Robert Shibley visited the campus and encouraged students to seek reform. He focused on several policies including a “community living” policy, which was binding on those living in university housing. The speech code instructed UNC students to “[a]void using the written or spoken word in a way that demeans, defames, offends, slanders or discriminates.”16
In response, the Daily Tar Heel correctly observed in September 2012: As of right now, a single inappropriate or offensive joke could land you in hot water with your housing community and in violation of your contract. But who is to say what is inappropriate and what is offensive? The policy places judgment with the most easily offended person on campus.17
As of right now, a single inappropriate or offensive joke could land you in hot water with your housing community and in violation of your contract.
But who is to say what is inappropriate and what is offensive? The policy places judgment with the most easily offended person on campus.17
Vice Chancellor for Student Affairs Winston Crisp was aware of the unconstitutional status of the speech code, having been warned by FIRE, but he chose not to act. UNC–Chapel Hill ignored FIRE’s warning and the protests of students who wanted to enjoy their full First Amendment rights.
Less than a year after the Daily Tar Heel spoke out against the code, student Landon Gambill was prosecuted for violating it. Gambill had specifically criticized the university over the way it handled her sexual assault allegation against another student. In response to her decision to speak out, the school convened a hearing to punish her. Gambill’s criticism was said to violate portions of the speech code that banned “disruptive” or “intimidating” speech. She then filed a retaliation complaint with the federal Department of Education’s Office for Civil Rights.
Gambill’s complaint resulted in enough of a public outcry to shame UNC into reforming its patently unconstitutional speech code. By summer 2015 UNC–Chapel Hill had eliminated all of its speech codes. The university became one of only twenty-two institutions of higher learning in America—and the only one in North Carolina at the time—to earn a “green light” rating from FIRE. The news also created a reform effort at another UNC campus. In January 2016, UNC–Wilmington (UNCW) began to reexamine its speech policies at the behest of a politically conservative professor (Mike Adams, co-author of this paper), who had written an open letter to the UNCW Board of Trustees identifying three unconstitutional policies in its student handbook and encouraging the trustees to contact FIRE to review the student handbook in detail.
UNCW chancellor Jose Sartarelli agreed to have FIRE examine all UNCW policies to align its handbook with the university’s First Amendment commitments and responsibilities. It is noteworthy that Sartarelli once worked with Mitch Daniels, who is president of Purdue University and a leader in efforts not only to revise speech codes but also to make positive commitments to the principles of free expression. Like Daniels, Sartarelli actively sought a “green light” rating for fully protecting student speech rights.
FIRE’s audit identified not three but nine UNCW policies that violated the First Amendment. Within just a few months, eight of the policies had been eradicated. As of this writing, the UNCW administration is working with FIRE and actively seeking faculty and student input in order to reword the final policy, known as the Seahawk Respect Compact. This compact currently suggests a mandatory prohibition against “disrespectful” speech, although several Supreme Court precedents including Cohen v. California (1971) demonstrate that such prohibitions are constitutionally prohibited.
FIRE has suggested that, like other schools that want to encourage respectful discourse without violating free speech rights, UNCW could make the statement merely hortatory. UNCW can embrace its educational mission to produce educated adults who are ready to engage productively in civil society without violating the First Amendment. It can encourage respect without punishing expression deemed disrespectful. In mid-2016 Sartarelli alerted the entire campus that the Respect Compact has no disciplinary force. Chancellor Sartarelli is a rare example of an authority inside the UNC System working to defend speech rights on campus.
A final development in the movement against speech codes comes from North Carolina’s Republican-controlled legislature. As of this writing, House Republicans are working on a free speech bill slated for introduction in the 2017 legislative session. The bill has numerous requirements to ensure that UNC schools uphold their First Amendment obligations to
issue a statement supporting free expression
issue a statement of institutional neutrality
create a Committee on Free Expression as a free speech watchdog on campus
include in freshman orientation a session on campus free speech
It is true that the most significant early threat to free speech in the UNC System came from conservative Democrats outside the university in the form of state legislative action: the speaker ban of 1963. Yet, in less than three years, the state had backed down, yielding authority to colleges and universities to set their own policies. From late 1965 on, the primary threat to free speech at UNC has come from UNC itself.
And by the time the state’s law on campus speakers was officially rescinded in 1995, the sixteen-campus UNC System was littered with unconstitutional student speech policies. Of course, none of these policies came from outside the system—much less from legislative action. Administrators working within the system were responsible for crafting the unlawful speech codes, including the unlawful nondiscrimination clauses imposed on belief-based organizations over the next generation.
Fortunately, recent efforts from within and without have led to improvements in the First Amendment climate on UNC campuses. These improvements have come in two forms:
Strengthening of free association rights. This protection came from outside UNC rather than from within, in the form of a state law, crafted by the Republican-controlled legislature, seeking to protect student organizations from administrative restrictions. It is notable that three outside groups promoted the protections in the legislation: FIRE, the Pope Center for Higher Education Policy, and the North Carolina Family Policy Council. Only one of these groups (the third) is socially conservative, and it was on the side of liberty rather than oppression.
Strengthening of free speech rights. Advances on individual campuses are thanks to a new sense of First Amendment responsibility on the part of some universities, whether because of external pressure or internal interest. There is also new activity in the legislature focused on repealing campus speech codes and enhancing respect for free speech throughout the system. Assessments of the unconstitutionality of existing UNC policies by FIRE and the Pope Center have inspired members of the state legislature to safeguard free speech. These legislators intend to do more to ensure that students understand their rights, requiring affirmative measures that enhance student respect for free expression on all UNC campuses, while avoiding the trap of interfering with the institutional academic freedom of UNC System schools.
In light of this brief history, the oral tradition is clearly incorrect. For more than fifty years, outsiders from the political Right have not been the primary threat to free expression. To the contrary, they often have been champions of free speech, particularly over the past generation. In contrast, the primary violators of free speech and free association have been UNC’s own leaders, first from the anti-communist and racist side, and more recently from the anti-religious and anti-free speech Left.
It is undeniable that throughout the worst years of the speech code era, the 1990s on, the political Left has dominated the ranks of administrations that have produced those unlawful policies. It is well-documented that the ranks of university faculties and administrations lean left. The narrative of a progressive academic vanguard defending itself against constant threats of censorship from nefarious external conservatives cannot be supported because the evidence over more than fifty years effectively shows the opposite.
Public universities claim to depend on funding from state legislatures for their survival. At the same time, state university faculties too often see legislators as hostile adversaries. Campus administrations lobby legislators for more money while simultaneously demanding autonomy. Immunity from oversight is important to a large degree for institutional academic freedom, but one area in which public universities absolutely must comply is noninterference with the constitutional rights of their students and faculty.
Left to their own devices, universities have all too often created alternate spaces where principles of free speech and freedom of association are subordinated to the quest for intellectual conformity around official campus orthodoxies. For these mistakes they continue to pay the price in the courts of law and public opinion. For public universities to thrive, their administrations must not resist the efforts of legislators and public policy groups to preserve First Amendment rights—which are the intellectual lifeblood of higher education.