The Complexities Of Free Speech On A University Campus

Jan 2, 2015

Painted text on the OU South Oval in late 2005.
Credit Nik Madjan / Creative Commons

The University of Oklahoma's South Oval is a place of almost constant activity. Students pass out pamphlets, write notices on the gray concrete in chalk, offer free food and drinks, and sometimes enter into heated debates.

Such arguments are guaranteed in the first amendment, one of the most recognizable and most discussed sections of the Bill of Rights. The right to free speech is often cited, but not always completely understood.

“I think a lot of people believe that free speech rights are absolute,” OU Law Professor Joseph Thai says. “They also believe that the first amendment applies to private parties. Both of those beliefs are inaccurate.”

Thai teaches a class about the first amendment and notices that many students think that their constitutional right to free speech allows them to say whatever they want wherever they want.

“Free speech rights only apply against the government,” Thai says. “In other words, you don't have a free speech right vis a vis your private employer, or vis a vis your parent.”

Joseph Thai, University of Oklahoma Law School, Presidential Professor of Law, Glenn R. Watson Centennial Chair in Law.
Credit University of Oklahoma Law School

Although, as a public university, OU falls squarely under the umbrella of government, Thai is quick to recognize that there are always exceptions, for example, OU sports.

“In the context of student athletics it’s really complicated because you can view it several different ways. In one way you can say, 'Well the government is giving them something of benefit and they are voluntarily giving up their right as a condition of receiving that benefit,'” Thai says.

“Another way you can view that situation is, really once these athletes put on the uniform, they are no longer speaking as an individual student or as a private individual, they are representing the university and the university currently has the latitude to control its message.”

After being recruited out of high school for the University of Oklahoma rowing team, Liliana Campon discovered there were rules that she and her fellow student athletes were required to follow.

“ They didn't want you to speak ill of OU and they didn't want you to say anything bad about the team or about your teammates,” Campon says. “They didn't want you releasing any information that wasn't already released by OU departments. So if you knew someone on the football team wasn't going to play Saturday but nobody has released it yet, you can't say that. And even when it comes to Texas, we have that tee-shirts like, "Texas sucks," but you couldn't tweet that as an athlete.”

According to Joseph Thai, this is a new situation for schools to face.

“The Supreme Court has not squarely dealt with the question of student speech much less athletic speech in the age of social media. It will soon but it hasn't yet,” Thai says. “Certainly the government cannot leverage the scholarship to completely silence these students but on the other hand, it's certainly the case that these students, whenever they speak, they also represent the university, particularly those students who are basically public figures by virtue of their popularity or their prowess on the field. To the extent that they are never really speaking as private individuals, the University certainly has a legitimate interest in making sure that the university is not put in a bad light.”

University of Oklahoma Pride Marching Band
Credit University of Oklahoma - Weitzenhoffer College of Fine Arts

Some issues of free speech at OU are much more clear, for example the recent case in which then OU band director Justin Stolarik required members to sign an agreement not to speak ill of the band or repost disparaging news stories about it on social media.

Third year saxophone player, Stephen Gonzalez, was reluctant to sign the document, but overcame his hesitation out of commitment to the Pride of Oklahoma.

“Some people were more uncomfortable with it than others but of course we all loved being in Pride and we all wanted to make it a better program so we did what we could given the circumstances,” Gonzalez says.

He was relieved when OU President David Boren voided the agreement, and so was Joseph Thai.

President Boren did exactly the right thing. The government cannot impose prior restraint.

“President Boren did exactly the right thing. The government cannot impose prior restraint. In other words, the government cannot prevent you from speaking or publishing criticisms against the government. What the government can do however is punish you after the fact if your speech crosses certain lines,” Thai says. “The contract that the band members had to sign were in effect prior restraint. Everyone agrees in modern times that the core of the first amendment is the protection of criticism of the government, and OU is probably the most direct, immediate and important government for students.”

According to Thai, even if students are members in an organization that receives funding from OU, they must be allowed to speak their minds.

The Oklahoma Daily newspaper is funded through a combination of ad revenue, student fees and a $35,000 annual stipend from the Office of the President. Editor and Chief Blayklee Buchanan knows that her newspaper can say whatever it wants, just not without consequences.

The First Amendment
Credit Kevin Anderson / Flickr Creative Commons

“We've never gotten in trouble but we've gotten people mad at us before,” Buchanan says. “There was a time where we had... it was like a sex issue or something like that, and we ran a small photo, below the fold on the front page, it was a tiny little diagram of a drawing of a vagina and we got in trouble for that a little bit. Not from OU administration or anyone like that, but this one woman in particular called the newsroom and she didn't like that very much. So that was, one of those things that we discussed as an editorial board and we were like, ‘We think this has value and we think that this is going to get college aged people to pick up the paper and find out what's inside.’"

OU Law Professor Joseph Thai explains. "A student newspaper at the University level has probably has much free speech protection as a private newspaper like the New York Times against government censorship, even if it is partly funded by the university,” Thai says. “What the University has set up by funding a student newspaper is a public forum of some sort. Even though the university funds the newspaper, the purpose of the newspaper is to disseminate ideas to the university community, free from state censorship. So, it would be inconsistent with the purpose of that funding, for the university to place conditions that restrain the ability of the newspaper to report on certain subjects or to express certain viewpoints.”

Although free speech has some limits and consequences, The University of Oklahoma campus remains a space for people to share ideas, which according to Joseph Thai, is one of its most valuable features.

"Students generally have free speech rights and particularly university students do because public universities are viewed as sort of the incubator for future citizens and leaders of the community,” Thai says. “It's particularly a first amendment concern that students at public universities have access to the market place of ideas and are able to engage in robust discussion on matters of public concern.”


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