There have been hundreds of arrests on college campuses nationwide in response to student protests in solidarity with Palestine. That includes over 100 arrests here in New Hampshire.
Professor Daniel Pi teaches constitutional law at the University of New Hampshire’s Franklin Pierce School of Law. He joined NHPR’s All Things Considered host Julia Furukawa to talk about what rights protestors and journalists have under the First Amendment on campuses, including the University of New Hampshire and Dartmouth College.
Transcript
Two student journalists were arrested while covering Wednesday night's events at Dartmouth. We just spoke with them about their experience. What are the rights of journalists when covering a protest or a rally while on a college campus?
I mean, they have the same rights that other students have to assemble and to speak. The Constitution specifically protects the right to a free press in the First Amendment, and so the government's interference with that needs to be justified by some compelling purpose and narrowly tailored to achieving that purpose.
And for protesters, what is protected free speech for them under the Constitution?
Well, so it is political speech, which historically is the most protected sort of speech. The issue is whether or not the conduct that accompanies that speech is speech, right?
So, for instance, the encampments where they're setting up tents, or if they're obstructing walkways or occupying classrooms that have some sort of an impact on the functioning of the institution, then the question is whether their conduct — which has a speech component — is being regulated because of the speech part, or whether it's being regulated because of the conduct part of it. And there is a commonly cited case, U.S. v O'Brien, which lays out four factors that the court looks at to see whether it is something that the government can permissibly regulate.
Our country has a long history of political protest, especially on college campuses. So these questions have come up before, and it's fairly well settled law that if the regulation that's being violated is trespass or resisting arrest, then that probably isn't considered something that is a First Amendment violation.
One of these schools is a public institution, the University of New Hampshire. The other is private, Dartmouth College. What are the differences in students' right to protest at a public institution versus a private one?
This is an important distinction. But I think in the present context, it's not as important as you might think. Because UNH is a public university, any restriction on their speech by the university would be a restriction on their speech by the state of New Hampshire, which is a government interference with speech. And so they have First Amendment protections.
Students at Dartmouth or any private school wouldn't have a First Amendment protection, because a private university can restrict whatever speech they want. The First Amendment only applies to state actors.
But what the issue is at Dartmouth, for example, even though it's a private university, they called in the police because they're alleging a criminal offense, which is the trespassing. So they're saying that we told them not to make an encampment and they're making an encampment. And so that's trespassing. They no longer have permission to be there.
Is there anything else that you feel like is important to talk about or know when it comes to free speech for students, student journalists, protesters on college campuses?
Political speech is the most important kind of speech because it is the kind of speech that makes people aware of their rights. It changes how the government is run. And so it is the most important kind of speech and the most important kind of right, because it enables all the other rights. And so this is something that we should take very seriously and that we should try to preserve to the greatest extent possible, the free expression of ideas, no matter what you believe.
I mean, regardless of whether you support Israel or Palestine in the Middle East or any other controversy that garners public attention, the important thing is that people be able to express what they have to say.
