Free Expression on College Campuses

Table of Contents

College District

Last Updated: 12-29-2020

Freedom of expression is guaranteed to the people of the United States by the First Amendment to the United States Constitution, which provides,

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.

Although the First Amendment uses the word "speech", its protections expand beyond what people typically identify as speech, i.e., spoken and written word.  "Freedom of speech" is "the right of people to express their opinions publicly without governmental interference, subject to the laws against libel, incitement to violence or rebellion, etc."  Thus, verbal and written speech are merely two of many expressive forms of communication protected by the First Amendment.  Courts have broadened the term "speech" to include all types of expressive activity, whether verbal, written, or symbolic.  Consequently, what many refer to as "freedom of speech" is also sometimes referred to as "freedom of expression."  The terms are essentially interchangeable and are used interchangeably throughout this workbook.

In California, several authorities protect the right to freedom of expression.  First and foremost, the First Amendment to the U.S. Constitution sets the minimum standard of protection.  California lawmakers and government agencies cannot create any law, regulation or ordinance to diminish the protection afforded by the First Amendment.  However, they may expand the protections.

California's Constitution also protects free expression.  Article 1, section 2, subdivision (a) states,

Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.

Some courts have determined that the free speech clause in California's Constitution is broader in some areas than the free speech clause in the First Amendment, such as in its application to private property.  However, California's Supreme Court has emphasized that it is not broader in all of its applications, thus California courts may draw on both state and federal precedent to conduct constitutional free speech analyses. (Los Angeles Alliance for Survival v. City of Los Angeles (2000) 22 Cal.4th 353, 367.)

In addition to the state and federal constitutional protections afforded to speech in California, the Legislature has enacted specific statutes to ensure that free expression protections are extended to groups or individuals in circumstances or locations where speech might not otherwise be completely protected.  For instance, the Legislature has enacted Education Code sections 66301 and 76120 to protect speech by students at California community colleges.  These protections are discussed in detail below.

The purpose of this workbook is to discuss the various free expression protections afforded to individuals on California community college district campuses.  It is also intended to explain how district governing boards and officials may regulate such expression.  When using this workbook it is important to consider that it is only a guide and cannot be relied upon for definitive legal advice regarding a specific situation.  Free expression analyses are fact-intensive and the absence or addition of a particular fact can change an entire analysis.

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Disclaimer: This document is provided as a benefit to Liebert Library subscribers and cannot be shared outside of their organization. The information contained within is a template only and is not designed to address the specific and unique issues, internal rules, practices, and/or governing documents that might be in place at your organization. You should always consult with legal counsel prior to implementation of any documents.
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