This Article is modest in scope. It seeks primarily to illuminate the role of free speech conflicts, especially those involving contentious speech, within the Court's jurisprudence, and to illustrate how arguments characterizing the protestors' speech as censorship misperceive the important role such conflicts play. Using both the Court's doctrinal framework and conflict resolution literature, this article attempts to bring deeper understanding to the purposes for the Court's approach, the context underlying the current conflicts, and the flaws underlying the argument that the protestors' actions are censorial. Part I briefly reviews three illustrative free speech conflicts at the University of Missouri, Yale University and Middlebury College. Part II discusses the Supreme Court's free speech doctrinal framework. It first examines the Court's doctrine as it pertains to the regulation of speech, particularly focusing on its antipathy toward content-based regulations and the purposes that underlie the Court's approach. Part II then examines how this framework creates a "sub-legal" arena in which interaction between private communicative actors is often raucous and unruly, and which the Court's free speech framework clearly contemplates, but on which it does not impose rules. Finally, Part III examines recent free speech conflicts in light of the Court's free speech framework and conflict resolution principles. It further discusses the extent to which the criticism of student protestors misunderstands this framework and is inconsistent with the Court's concept of public discourse.
Christina E. Wells,
Free Speech Hypocrisy: Campus Free Speech Conflicts and the Sub-Legal First Amendment, 89 University of Colorado Law Review 533
Available at: https://scholarship.law.missouri.edu/facpubs/742