Solutions for Higher Education

Episode 39: Free Speech on Campus, Part 2

President Wyatt and Steve Meredith talk with Geoff Landward, Assistant Commissioner for Law and Policy and General Counsel for the Utah System of Higher Education, about the subject that continuously comes around in higher education, Free Speech. 

Free Speech, Part 1

Full Transcript

Steve Meredith: Hi again everyone, and welcome to Solutions for Higher Education, a podcast featuring Scott L Wyatt, the president of Southern Utah University in Cedar City, Utah. I'm your host, Steve Meredith, and I'm joined today in-studio, as I always am, by President Wyatt. Hi, Scott.

Scott Wyatt: Hello, Steve.

Meredith: So, today we get to talk about an issue that seems to circle around and circle around in the news almost continuously in higher education, and that is the issue of free speech and what is allowed at the university, is it the same as anywhere else, are there restrictions, and so forth, and we have a special guest who has expertise in that area.

Wyatt: Yeah, we have talked about the importance of free speech, but today, we have an expert who can tell us some details about what you can and cannot do. Geoff Landward is joining us from the Utah System of Higher Education. Welcome, Geoff.

Geoff Landward: Thank you for having me, it's a pleasure.

Wyatt: And Geoff, I think, if I can remember your title right, you are the Assistant Commissioner for Law and Policy and also General Counsel.

Landward: You nailed it. That is the entire thing.

Wyatt: That's pretty good.

Meredith: Yeah.

Landward: Yeah.

Wyatt: We do that well in higher education. We try to get the longest titles possible.

Meredith: Yeah, mine actually spreads over two lines in my signature and I'm embarrassed by it every time.

Landward: [Laughs]

Wyatt: I need to work on mine, because mine is just one word.

Meredith: Yeah, "President." [All laugh] But it's like having…you know, there are two important people on the campus. There's the president and the custodian. Those are the guys with all of the keys, and everybody else? We're just kind of in the middle somewhere.

Wyatt: Well, and some days, I think we have the same job. [All laugh] Which is cleaning up messes.

Meredith: Fighting over parking spaces. [All laugh]

Wyatt: Yeah. Well, Geoff, thanks for joining us from your office in Salt Lake City.

Landward: I'm really looking forward to the discussion. This is probably something that I enjoy talking about more than anything else when it comes to law and policy on campus, this one takes the cake, for sure. So, I'm really looking forward to answering questions and talking it through.

Wyatt: One of the…this is a great benefit for universities, but it's also been such a challenge for universities because so often times, those that teach at a university or serve there think they know everything, and they want to really persuade people their way of thinking. And sometimes, that means stifling speech of those that have a dissenting voice. That seems to be happening around the country, we see that discussed a lot. And at Southern Utah University, we've worked really hard to make sure that we are, in fact, a marketplace of ideas. That all kinds of ideas are welcome—conservative ideas, liberal ideas. And we've always thought that every—and I'm using these words very loosely—but that every liberal kid should be confronted with conservative ideas, and every conservative student with liberal ideas. That that's such an important part of learning. And perhaps the true measure of being confident that we're right is allowing dissenting voices to challenge us, you know? So, it's kind of a…that universities should be an open place to talk and to learn how to explore ideas and then how to evaluate them and how to do research to ultimately come up with the best ideas. But there are times when speech should be managed for a variety of reasons, and it's only limited…they are very limited situations. So, let's get into that a little bit, Geoff. I think that's one of your areas of expertise.

Landward: Well, the interesting thing about free speech is, especially on campuses, on our campuses in our country, it's probably more important there than anywhere else because of what you said, President Wyatt. And that is that our college campuses are intended to be a true marketplace of ideas. And it's interesting because I think I…in all of the research that I've looked at and all of the policies that I've read around the country, every university extolls the virtue of free speech and says that they strong support it. And so, I think everybody, in principle, agrees with this concept. But what I find troubles a lot of universities or trips them up is knowing what is protected and what is not and how to administer that speech on their campuses. And as you said, there are really only a handful of very restricted areas of speech that are not protected by the Frist Amendment. Now, some, people probably know about. For example, you cannot threaten someone—and it has to be a true threat—and a true threat has to be something that on its face and in the circumstances that you're in, it's unequivocal, it's unconditional that the person being threatened feels that fear that, "This is going to happen." That whatever this individual is saying to that person, that it is an immediate fear that they are going to do this. So, if I'm standing in front of a student and we're having an argument about something that's just a hot topic and things have gotten heated, and if I say, "You say one more word, I am going to grab you by the collar and punch you in the face until you are out." That would probably be considered a true threat because of the circumstances, because we're in a heated discussion, tempers are flaring, and now I've made that statement and the person that I've made it to has an immediate fear that I'm going to carry it out. That's a threat, and threats are not protected by the First Amendment. Now, that just means that states, the government, can pass a law prohibiting true threats and make it a prosecutable offense, a crime. And so, that's one area that, I think, most people understand, "Yeah, of course you can't threaten another person." But you know, what's interesting is that the next one…

Wyatt: Let's hang onto that one more second.

Landward: Sure, sure.

Wyatt: How many times did my mother say, "I'm going to kill you if you don't get your bedroom clean?" [All laugh]

Landward: Right, right. You know, it's…

Wyatt: But when Roy said, "I'm going to meet you after school and I'm going to beat you up" I knew that they were two different communications. There was no question in my mind that one was for real and one was just trying to encourage me to get my room clean. [Laughs]

Landward: Right. Yeah, and that's the thing. That's the trick of it, right? Is that the circumstances matter and that's why it's so difficult to write laws to make sure that you're doing it in a way that's not going to unintentionally restrict what would normally be protected speech. So, it has to be those kinds of circumstances, those kinds of facts, to show that this was not just merely making a statement or an offhand comment like, "Keep it up and you're going to see the sidewalk." It has to be even more direct than that. And you know, it came…the case law is so interesting because it really came from a statement that was made during the Vietnam War in protest against the draft. And one case, an individual said, "If they're going to make me carry a gun, the first person I'm going to set in my sights is LBJ" who at that time was the president. And he was prosecuted, and the court then gave us this doctrine of an immediate threat. And one of the things they considered was the fact that when he said it to this crowd, the crowd laughed and then used that to show that the circumstances weren't that he was making a true threat but that he was making a political statement. And so, that's where we got started on this issue, "What is a true threat?"

Wyatt: So, the courts found that that was no, in fact, speech that could be punished?

Landward: That's right, that was not a true threat. That's right. And so, he was not convicted, and they found that the law that they tried to prosecute him under was overly broad. And so, they started telling courts that, "You need to start looking at those circumstances so that it's an unequivocal, unconditional, immediate threat that the person feels the fear, 'It's going to happen now. They're going to hit me in the face now.'" It's the imminent prospect of that threat being carried out. So, often times, though, people hear about that and they think, "Well this is the same thing as inciting people to violence. And that's another area of the First Amendment that is not protected is incitement. But again, it's a very narrow definition of what is to be considered incitement. So, what we're talking about here is when you're speaking to a group of people—so this is different than the true threat where you're having a confrontation with one or two or a small group—this is a large gathering of people, and what you're doing is not threatening someone but you're inciting that group to violence. And to do that, to incite a group, you have to be: acting intentional, meaning you intend for the group to do this; it has to be effective, meaning the group has agreed with you that this needs to happen; and it has to be immediate. So, it can't be inciting a group to violence that's going to happen three weeks from now. It has to be that moment, that time. A great example is where you have a large group of people, and maybe you have a politician and that politician makes an offhand comment about a protestor. Now, you can handle this one of two ways, but if that politician who is speaking says, "I want you guys to grab that person, I want you to beat them senseless" and that is an effective communication because that group is in that mood and they're going to do that and it's an immediate response, that's going to be incitement, and that is not protected by the Frist Amendment. But again, you can see the dangers of this, right? I mean, intentional, effective, and immediate. There are many, many comments that people could be considered even threatening, but under the law, are not considered be incitement because they don't meet that standard.

Wyatt: So, we hear these kinds of things in group presentations or arguments or debates all the time that are kind of taken…that you know, kind of get people nervous.

Landward: Yeah, well…

Wyatt: How do you find the line between an intentional incitement versus protected political rhetoric?

Landward: It takes a lot of analysis of the circumstances when the speech was being made. And for something to be intentional…going back to that statement that the protestor made about setting his sights on LBJ. Now, the court recognized that he was not intending to kill the President with that statement. He was not showing that he had the intent to do that. When we're talking about incitement, the speaker has to demonstrate that he or she wants the crowd to engage in the violent act. If he's talking in a way that you can tell it's more of a symbolic, political protest—it could be caustic, it could be offensive, it could even be threatening in the general sense, but unless there's a specific intent for the crowd to carry out a specifically violent act and that it's immediately going to happen, you're not going to reach that test for incitement. And again, you'll see this theme running through all of these exceptions to the First Amendment, and that is: they are very tough tests…

Wyatt: That's narrow.

Landward: Yeah, that threshold is high. And really the intent there is because if it's not high, it's too easy for government to censor speech under the guise of prevent threats of preventing incitement of threats.

Meredith: We've seen that fairly recently in Great Britain, isn't that right? We've…there's been a tremendous uptake in the policing in online Facebook posts and that kind of stuff which seem to lack that immediate threat. And I realize they have a different legal structure than we do, but that's sort of what you're talking about. If it lacks that immediacy…

Wyatt: And they intent to carry it out.

Meredith: And the intent to carry it out, right, it's not just rhetoric posted somewhere randomly.

Landward: That's right, that's a very good point. And online communication has certainly clouded the case law that governs our First Amendment. I mean, our First Amendment is just a few words, but the case law that the Supreme Court has given us to try and interpret those words becomes quite large and as new things change the way we communicate, the laws also have to change. And I think that one thing that campuses have struggled with over the years as the advent of social media has taken place is how much can they restrict on student's expression online? And that's been sometimes difficult for campuses to appropriately craft a policy that addresses that. And that brings me to another one that is probably one of the most difficult ones to deal with, and that's harassment. So, harassment…the idea is that harassment crosses the line from speech to action. And so, we're not just talking about expressing ideas, maybe they're repugnant—they could be bigoted ideas or something like that. And now, I know that you've talked about the importance of free speech in your previous podcast and so I won't rehash the idea, but one thing that takes a lot of people by surprise is that one of the protections under the Frist Amendment is hate speech. That hate speech is protected.

Wyatt: Yeah, the fact that…

Landward: And the reason why…yeah, go ahead.

Wyatt: The fact that we call it "hate speech" makes it sound like it's a category of speech.

Landward: Precisely.

Wyatt: Which it isn't, it's just speech.

Landward: It isn't. It's speech that hasn't risen to the level of any of these exceptions that we've talked about, and that's it.

Wyatt: One of the problems with hate speech is that it's associated with hate crimes. And so, we think that hate crimes are against the law and therefore, hate speech must be against the law. But they are two totally different things. Hate crime is a crime.

Landward: Right.

Wyatt: That is motivated or one of the reasons for doing it is hate. But it's…but still, it's the crime that it's all about. So, I committed an assault, that's an assault, it's a crime. But if I add to it that I'm doing it because I hate somebody, then we haven't created a new crime, we've just, perhaps in some jurisdictions, created an enhancement, right?

Landward: Yes.

Wyatt: And that's a whole other issue to talk about. But that's totally different than

Wyatt and Meredith: Hate speech.

Landward. That's right. And that's, I think, why people have so much trouble understanding why hate speech would be protected under the First Amendment. Because of that association, because they associate hate with violence, they assume that the speech is violent but it's not. In most cases, hate speech is an expression of an idea, an expression of a view point. And you have to remember that even decades ago, a lot of what we consider now to be hate speech was acceptable and over time has been viewed as less and less acceptable now, ugly and horrid, but the thing…the distinguishing factor is that when we're talking about hate speech, we're talking about a speech that's been categorized, but really, it's not a category. It's just the expression of a viewpoint and an idea. And that's why it's so difficult to try and regulate hate speech, because you're ultimately regulating a viewpoint and regulating an idea, and that's notoriously hard. In fact, sometimes, it has intended consequences. In the Civil Rights era, many schools enacted speech codes on their campuses that prohibited hate speech with the intent of protecting their minority students, protecting their African American students, for example. But what they found was that most of the complaints being filed with the school for violations of that code were coming from white students complaining about speech coming from African American students who were protesting racism. So, it really got turned on its head and it just exemplifies why it's so difficult and dangerous for the government to be put in the role of determining what is and what is not hate speech, because really, it's just giving the government the authority to say, "One viewpoint is OK and one viewpoint is not" and that's the opposite of what the First Amendment was intended to do. And that's what is perplexing because people view hate speech as causing…it could make people feel threatened, it could make people feel…they feel the harm, the impact that hate speech could have on a person is very real and has been tried to be used as a justification for restricting it. But it isn't a true threat in most cases and it isn't incitement in most cases. So, then people turn to harassment and they say that hate speech is a form of harassment, just like sexual harassment or religious harassment. And so you add onto that hate and this hate speech, it gets to be very difficult for schools to deal with because—and, President Wyatt, you probably can attest to this more than anyone—your students come to school, and rightly so, with an expectation that your place of learning will be one that's safe for them to be and that it will be free from violence or harassment or discrimination.

Wyatt: Yeah, harassment in the broad sense of harassment.

Landward: Right.

Wyatt: "Everybody is going to treat me kindly."

Landward: Yeah, and that's where the courts are still working this out. And even last session and the session before our Legislature, there was legislation that tried to define, "What is harassment versus what is speech?" So, right now, the generally accepted concept of harassment is that the conduct itself is so severe, persistent, or pervasive as to deny or limit a student's ability to participate in or benefit from the institution's activities and programs. In that case, the courts have said a hostile environment exists and that means you've crossed the line from speech, and now the student, because of that persistent or pervasive harassment, cannot enjoy the reason they are there in the first place, and that is to receive their education. And that is when the school is obligated to act and to punish that action. But if you listen to those words, you can tell that there are going to be circumstance where people say something to another person that would be offensive, maybe objectively ugly and repugnant and all of the things that we stand against, but at the same time, is still protected. So, it has to be severe, it has to be persistent or pervasive. And offhand comment that could be offensive could cause emotional distress sometimes will not reach that level and so the only thing the school can do in that case is you can bring the student in, you can talk to them about it, but you cannot restrict that. And restriction means anything from a punishment to making them go to some sort of training on sensitivity. Anything that a student would view as restriction of their speech or punishment because of their speech would be prohibited in those cases.

Meredith: Now, that's very interesting to me because we…as we see a lot of our sister universities actually have incoming freshman go to sensitivity training like tha.t Is that a preemptive squashing of free speech?

Landward: Yeah, and that's really a great point, and it isn't. Because what the university is doing is engaging in a dialogue so that people have an understanding, but what happens is, in that training, sometimes schools have placed restrictions on speech by saying, "We support free speech, but we require that students engage in civil dialogue and that we don't accept any kind of uncivil behavior towards each other—screaming, yelling, obscenities, things like that. And that's where you start to cross the line, but just doing simple training up front to let people know that, "These are things that you need to think about when you talk" doesn't mean that you say, "You can't say these things."

Meredith: Right.

Landward: But it does help them understand the concept. The difference there is that you're not responding to someone's specific speech. You're presenting ideas for students to learn about, but when you have a student who engages in speech that doesn't rise to the level of harassment or a true threat or incitement, bringing that student in and punishing them would be a violation. And what becomes dangerous is just the mere fact of if it's more than just giving them some advice and helping them understand but it's requiring them that deemed as the school is saying, "What you did was wrong, and therefore, we have to correct you" that that becomes a very dangerous area. So, schools have to be very careful about how they address that, but that doesn't prevent a school or the students around them our professors from expressing the opposite idea. And I'm really…that's what that exchange, that marketplace, is supposed to be. It does, like you said, President, a liberal student should be confronted with conservative ideas and a conservative student should be confronted with liberal ideas. And that goes as far as saying, "Students should have to be confronted with ugly, repugnant, horrible ideas" because then, they can confront that, they can understand why it's wrong, how they feel about that, and how they can fight against it with other speech. Now, there is an area that is…that gives some flexibility to the schools and I think it's simply put like this: your purpose as a government school, a public school, is to teach and to research and that's why students go and that is your government purpose. So, if speech somehow interferes with that ability, you can restrict it. And they are called "time, place and manner restrictions."

Wyatt: So, by…

Landward: The way these work…yeah, go ahead.

Wyatt: By time, place and manner, the speech itself is OK, it's just the time you're doing it or the place or the manner is…

Landward: That's right, that's right. So, this has nothing to do with the content of the speech and it has everything to do with making sure that if a professor is teaching a class, that nothing is going to disrupt them from teaching that class. And if you have a protest outside the window of that classroom and they are using bullhorns that are disrupting the ability for that professor to teach, then that is a restriction that you can place. So, a very common restriction is noise levels. Another restriction that you will see oftentimes is that gatherings cannot impede the flow of traffic or pedestrian traffic, something like that, to where you want to make sure that you're ensuring that public safely and public ability to transport and do all of that stuff, but at the same time, this doesn't matter what the speech is and so it's content neutral. It's viewpoint neutral. When you issue a time, place and manner restriction, you can't tie it to any kind of certain type of speech. And that's what has tripped up schools, again, is that safety thing. Because you have an obligation with the law under Title IX to keep students free from harm of harassment and discrimination and things like assault and other things like that, so, sometimes schools will say, "If the speech is likely to incite damage to property or violence, then you have to get a permit before you can do it." That starts to get into viewpoint tests, because now the government entity has to look at, "Well, what speech are you going to talk about? You know what, white nationalists, that's racist and so, you have to actually get a permit to walk around our campus and make your protest known." Well, now you've crossed the line into looking at the viewpoint and then making your decision based on that viewpoint. That's just not going to pass the test. It just has to simply be, "Noise levels are these. These are the areas where you're free to have your assemblies." And interestingly enough, all of our schools in Utah, all of the outdoor areas on our campuses are considered free speech zones.

Meredith: Hmm.

Landward: So, the other part of that is that they have to serve an interest. And so, that's why I brought up the fact that your school's interest is teaching students and research. So, a restriction that served to ensure that that takes place would be acceptable. But if there is no real reason why you're doing that particular restriction then you're going to see trouble. And then the last thing is that there are alternative means for the manner of communication. So, if you have noise level caps on your campus during the day saying, "You can't use bullhorns or loud speakers" is there an alternative method or way for them to get their message out? And an example would be posters and leaflets can still communicate the message to the same audience in the same place without using loud speakers and therefore, that's an alternative mean.

Wyatt: Time, place, manner…sometimes, we…when you were talking about this idea that once you implement a time, place, manner restriction, it has to apply to every kind of speech, regardless of the content, reminds me of some of the posters we've seen on many of our campuses lately on two sides of an issue. And one is "Black lives matter" and another one that's popped up is "It's OK to be white."

Meredith: Mhmm.

Landward: Mhmm.

Wyatt: And the…some people are offended by the one or the other and think that the one is a better form of speech than the other.

Landward: Yeah.

Wyatt: Because it makes the campus feel more inclusive and caring about different groups instead of a statement that might be viewed as being negative to another group. And frankly, somebody could see both of them as being positive and somebody could see both of them as being negative. But…

Landward: That's right.

Wyatt: But it's not our job to decide between opposing viewpoints. It's to just allow them to go.

Landward: And additionally,…go ahead.

Wyatt: And the best one rises to the top. Ultimately, the best one rises to the top. It takes time and it's a little messy, but that's what democracies are all about. Messy.

Landward: That's right. It's supposed to be messy. It's supposed to be tested and tested again and tested again and ideas should be subject to all sorts of scrutiny. Now, over the decades, some ideas have not withstood the test and discriminatory laws based on race or gender or religion or disability, those ideas of why those would be acceptable were testing in the marketplace of ideas and, for all intents and purposes, oftentimes have been found illegitimate. That doesn't mean that now that discourse ends, because it still continues, but that's how these things start, and that's why it's so dangerous to give a government entity the power to determine things like, "Well, what is hate speech and what is not?" Because you rob the opportunity for those ideas, for that speech, to be tested in that marketplace. And it's the government that decided what would be tested and what wouldn't be, and that's exactly the point of that Frist Amendment is to keep the government from doing that. Which means students, faculty, are going to be exposed to ideas that they find abhorrent, ideas that they find racist or ideas that they find disgusting, but that's the point. Is that they are free to hear those ideas and people are free to express them, but you're also free to oppose them vocally, and that's when that test starts.

Wyatt: Yeah. This is…the Slants case which is a year and a half old where the Supreme Court said, "One of our most…"—and I am paraphrasing because I don't have it in front of me—but "One of the most prized things about our Constitution is that we protect the speech that we hate."

Landward: That's right.

Wyatt: And I've been teaching in my class about Abraham Lincoln and we just read a speech that's not a speech, it was a letter from Martin Luther King Jr. from Birmingham Jail and it just reminds us that some of this speech that at the time was kind of offensive and difficult to listen to has changed the world in a positive way.

Meredith: That's right.

Wyatt: And it's hard to predict exactly what's going to happen, but speech, good and bad, can motivate us to good and bad. But maybe government should be careful about choosing sides.

Meredith: Geoff, I've wondered about—again, I apologize for brining sister institutions into this and I won't necessarily mention the place—but I think within the last year, there was a conservative speaker invited to one of our state universities and a significant backlash, a protest, against that speaker's appearance was organized and there was, I think, hundreds of thousands of dollars spent in security sort of keeping the two sides from one another. Is the idea of a university de-platforming or…and I'm sure this is equally true on both sides of the political spectrum, but we have to be careful to not be seen as taking away a free speech platform, even despite the fact that a large group of people on the campus might really, as you say, loudly protest that particular speech. Is that correct? Is that what you're saying?

Landward: That's right. In fact, what you're referring to is sometimes called "the heckler's veto" and the idea is that you have a controversial speaking coming to your campus and because they are so controversial and the university finds out that there is going to be a counter protest and we have strong reason to believe that it could turn violent, and because we have these safety concerns, we're going to cancel the speaker in the name of safety for our students, which, on its face, sounds pretty good. You know, if you have a threat or cause for concern about the safety of your students, you normally need to make sure that you've taken steps to protect them. The problem is the steps. So, you can't use safety concerns because of counter protests or hecklers as a basis for cancelling a speaker. It may cost money to ensure the safety of the speaker or the participants and the listeners and the counter protestors, but you are required to still take reasonable steps to ensure that safety so that the speaker can come and speak in your forum. And that's one of the responsibilities unfortunately, or fortunately depending on how you look at it, that comes with being a government public school is that you are a traditional public forum. And that means that it is normal for people to come onto your campus and to speak. That means you have an obligation when you're faced with a speaker who could cause unrest because of counter protests to put the resources that are necessary to protect them. And we don't want to start getting in a position where we just say, "We can't have any controversial speakers on our campus because the resource drain and the controversy that it sparks up is too much." Because then you have lost your place as that marketplace of ideas. And so, that is a difficult one for people to understand, but at the same time, you want to bring those ideas. Now…

Wyatt: Yeah, and…

Landward: The thing about…go ahead.

Wyatt: So, what you're describing on an institutional level is what we would call on an individual level "academic freedom."

Landward: Mhmm.

Wyatt: That we've put in all these mechanisms to give faculty members some academic freedom to protect them from saying something that other people would find objectionable.

Landward: That's right. That's exactly right.

Wyatt: And it applies, in some ways, it applies to the institution as a whole as it does to an individual faculty member in teaching or research. It's kind of interesting to think of it that way.

Meredith: Yeah.

Wyatt: Anyway, you were saying?

Landward: Oh, well let's…I think that it's important that people understand that your right to speech does not mean that you can use that speech to prevent another person from speaking. And so, you can protest, you can do all those things, but what you can't do is do it to the point where you are disrupting another person's right to speak. So, what you'll see sometimes in a large…large groups where you have a controversial speaker, you'll have people start to stand up during the speech and interrupt and cause that disruption to try and stop the speech from happening. The school can remove that person from that forum, because they are interrupting that speech and preventing another person from speaking. And so, that's the concept. You can't use the ability to protest, even if it's potentially violently, to stop another person from expressing that viewpoint. The last thing that, unfortunately, I think could take up an entire podcast to talk about are basically just obscenity. And, of course, the trick of the obscenity laws is to determine what is obscene and what has serious literary or artistic political or scientific value? And that's where local governments have really struggled to determine what would be considered pornographic versus what would be considered artistic. Because if it's being obscene, it can be restricted. But if there is any kind of serious value to the expression, to the work taken as a whole, it can't be viewed as obscene under the law. And so, that…there's a whole, large, vast group of cases that deal with obscenity laws. They are fascinating. Especially how things have changed over the decades between what used to be obscene and what is now accepted.

Meredith: Yes.

Landward: That changes over time.

Wyatt: Yeah. We…yeah. So, obscenity is a type of speech that lacks, taken as a whole, any scientific, political, or artistic value, right?

Landward: Yeah.

Wyatt: Did I get that close enough?

Landward: Yeah, it has to be…and so, what we're talking about is, under the law, you're talking about speech or visual speech meaning symbolic in a painting or something, where the average person applying the contemporary community standards looks at that and, taken as a whole, it appeals to prurient interest and depicts or describes in a patently offensive way sexual conduct or excretory functions specifically defined by the applicable state law. And then, lastly, whether that work taken as a whole lacks any serious literary, artistic, political or scientific value. That's called The Miller Test and that's where we operate now for obscenity. And so, it's not just anything. It's the type of art or type of speech that appeals to that prurient interest that describes those sexual conduct or excretory functions or things like that and to have no value whatsoever artistically, literarily and that's kind of…and interestingly, that is a reasonable person standard on a national level when you look at whether or not it lacks serious literary, artistic, political or scientific value. But the first part of that test, the average person applying contemporary community standards, would find that work, taken as a whole, appeals to the prurient interest. That's combining this idea of there are local customs and standards in the community that may be different from Manhattan in New York to Moscow, Idaho. And you would have to look at that community first, but when determining if there's value, you have to take it as a reasonable person at a national level.

Wyatt: That's interesting.

Meredith: That is.

Wyatt: So, when we talk about some kind of serious political, artistic, or scientific value, that has nothing to do with community standards?

Landward: That's right.

Wyatt: So, you can…

Landward: You're now at a national level.

Wyatt: So, you can find that something is, and I'm cutting this in pieces, but you can find that something is obscene based on community standards, but the trump card is still if it's got, based on national standards, some serious scientific, literary, or political value?

Landward: Precisely. That's exactly right, you've got it.

Wyatt: And this is really a hard thing to talk about, or a hard thing to get a handle on, as you've mentioned, and I think the Supreme Court—I can't remember which justice said it—says, "I can show it to you when I see it, but I can't define it."

Landward: [Laughs] Yeah, "I'll know when I see it." And…

Wyatt: But that makes it really hard to make it a law.

Meredith: Yeah, it does.

Wyatt: Because if you can't define it, then it's really hard to prohibit it.

Landward: Yeah.

Meredith: Yeah, I remember a…coming from the world of fine arts like I do, I think there was a Rodin exhibit that was traveling around and it was coming to Utah, which is a fairly conservative place, and when they unpacked the statues, they didn't realize everyone was naked and there had been all of these school field trips and so there was a significant amount of discussion about whether or not they could, in fact, put a fig leaf up I think is probably the right way to say it. And the folks with the Rodin exhibit said, "Uh…no. The artwork is what it is. It's widely recognized as masterworks of western art. You're either going to have it, or you're not." And I think eventually, the organization boxed it back up and sent it back. So, that kind of thing is always interesting because, again, I've been in this business for about 30 years in higher ed, and there is inevitably someone that is offended by nude modeling in an art class, for example.

Landward: Mhmm.

Meredith: And, you know, you go to that national level and sketch artists have to see the human body to be able to draw it accurately and that's the way it is. And so, I'm intrigued by that local versus national concept. You can be offended locally, but the standard is a national standard.

Landward: That's right. That's right. And you know, there's a phrase that one of the justices in the Supreme Court used, and I'll probably butcher it, but essentially it was, "One man's trash is another man's muse." And therein lies the difficulty of obscenity laws. And so, again, like all of these other restrictions on speech, very high threshold to reach before the government can effectively restrict that kind of speech based on an obscenity. And so, it's a fascinating area of law. This is why I love talking about this stuff so much because it is so interesting, but yet, so important.

Wyatt: Well, it's…it might have been random that the First Amendment ended up being the first, but nevertheless, it is number one and it's the foundation of democracy. Once you start giving somebody…once you give the Executive branch of government the power to restrict speech, bad things happen.

Landward: That's exactly right. One thing I like to tell people is without the First Amendment, you probably wouldn't have ended up with any of the others. And it is, like you said, it is truly the foundation of democracy and of learning.

Wyatt: Yeah. There is nothing more important that being able to worship the way you want to worship.

Landward: That's right.

Wyatt: And think the way you want to think and assemble together as a group to think and worship or talk the way you want to without restrictions of government. Otherwise, government does everything to protect itself. And that's not their job, their job is to protect us. [All laugh]

Meredith: That's right.

Wyatt: At least that's our foundation document here. We've been talking about speech, and when you got to this last point on obscenities, it because a bit more clear, but I think it's helpful for us to remember what you have eluded to and that is speech is more than words. It's conduct and images and all that kind of stuff. Burning a flag is speech.

Landward: That's right.

Wyatt: Even if done silently, it's speech.

Landward: Yes.

Wyatt: Yeah. It's communication.

Landward: Body language can be speech, symbols of any kind are speech. Yeah, that's exactly right.

Wyatt: Yeah. Well, OK. So, we've got five things that you've listed for us. We can restrict threats if they are immediate threats. We can restrict incitement if that is the intent of the person to motivate the crowd to do violence. So, both of these…

Meredith: Again, imminently.

Wyatt: Imminent.

Meredith: Yeah.

Landward: Yeah, imminent violence right then.

Wyatt: Both of these are really the same thing. Either yourself doing it or encouraging somebody else to do it.

Landward: Exactly.

Wyatt: And the tricky part, as you mentioned, is the intent has to be that the specific intent is to commit violence. It's got to be there for either of those.

Landward: Yeah.

Wyatt: And harassment, that one is…it's got to be pervasive. It can't be a causal comment or multiple comments. It's got to be a pervasive kind of thing that…

Landward: Yes.

Wyatt: That undermines the mission of teaching.

Landward: That's right. It has to prevent the student from participating in learning and in teaching. And so, that requires something that is pretty severe persistent or pervasive.

Wyatt: It has to prevent the student from being able to get an education.

Landward: Yep.

Wyatt: Yep, that's a big burden to meet.

Landward: It is.

Wyatt: And then you've got the time, place, manner which is nothing to do with content. The first three we've talked about are content based restrictions, but time, place and manner is not content based.

Landward: Right.

Wyatt: As you've said, it's just when can you do it? How loud can you do it? You can't go around town with a bullhorn in the middle of the night or during classes.

Landward: Yes.

Wyatt: And then the last one is one that we all know about, and that's obscenity. Which might be the most controversial of all of them, especially in small communities like we are in Cedar City.

Meredith: Yeah, sure.

Wyatt: Every time the art department puts out figure paintings, I get a comment from the community.

Meredith: Oh, yeah. Or if the theater department puts on something that is particularly controversial or whatever. That's, like I say, that's been a part of my life throughout my career, and I had not heard the national standard of the reasonable person. I think that's quite interesting.

Wyatt: Those are the five we've listed, Geoff. Are there others? Is this the full list?

Landward: You know, that's really about it. And probably rightfully so. The court has not come to those five areas lightly. It has taken decades and decades of testing and figuring out, "When will it be OK for the government to do this, to restrict any kind of speech?" And again, on campuses, it gets a lot more scrutiny, a lot more attention, because that is a place where students are supposed to be challenged. And it puts pressure on schools and school administrators…it puts them sometimes in a very difficult position to have to explain that, while we understand how hurtful the speech may be, that we are still obligated to protect it. And that may seem conflicting to students and without understanding the dangers of allowing restrictions to be placed on speech, it's very hard to understand why the school is in that position. But it's so important.

Meredith: It's safe to say…

Landward: And…

Meredith: Sorry, Geoff.

Landward: Yeah, go ahead.

Meredith: It's safe to say, isn't it, that despite the makeup of our Supreme Court—whether it's been primarily what people might think as being leaning liberal or leaning more conservative—that it doesn't matter. The court has taken very, very small steps in abridging speech. They have traditionally just stayed as far out of it as they can. Is that safe to say? Or at least placed a very high bar on what they feel can be abridged?

Landward: Very much…that's very accurate. And the court has stated again and again that they don't want to ever err on the side of giving the government actor too much. Too much ability to restrict speech in any way. And so, you'll always see them looking at ways to make sure that if there is going to be restriction on speech, it has to be very narrow. It has to be specifically tied to something that's very important that the government is supposed to be going before they'll allow for that to take place. And I think that's the right way to do that.

Wyatt: Yes. Geoff and Steve, that's an interesting point that you're talking about because while the speech itself is highly controversial, it seems that amongst our jurist, there's no controversy at all.

Meredith: It seems to be highly prized regardless of where you are on the political spectrum as a judge.

Wyatt: Yeah. It's the peak of who we are. Well, Geoff, anything else that you've got to throw out for us tonight on speech?

Landward: Well, I think that the bottom line is that if the expectation is that students and the community goes to our campuses and they expect to be kept safe from speech that they disagree with or they find harmful, they've got the wrong idea about what it's supposed to be. It's supposed to be a place where students are given a safe place to be exposed to those ideas. And that's really the goal is yes, come. We want to make sure you're here and able to learn in a safe environment, but we're not going to keep you from being confronted with ideas that you may find hard to deal with, hard to understand or hard to accept. But that's why they are there, and I think, ultimately, that was what the framers had in mind was we always want to be able to challenge ideas. We always want to have the ability to expose ideas that we find ugly or racist or any of those descriptors but that the only way to make that determination truly is to have the discourse and to always allow people to engage in that discoursed unfettered and unrestricted.

Wyatt: Yeah, there's a saying that I've heard several times and it goes something like this, and that is that "The purposes of the school, the university, is not to make ideas safe for people but to make people safe for ideas."

Landward: Yes.

Wyatt: And if we're confident that we're right, if we're confident that we're right to the point that we want to restrict the speech of those that are "wrong"…[Laughs] If we're that confident that we're right, then we should welcome opposing viewpoints because we know that the right ideas will surface at the end as triumphant. That's the marketplace of ideas.

Landward: Well put.

Wyatt: That when you take something that's bad to the market, eventually it goes away. Not because government said it had to, but because people on their own discovered that it was not good, so it was discarded. Nobody is buying what you're selling.

Landward: Well done, I think that's exactly right.

Wyatt: Well, thank you so much, Geoff. This has been really a delight to visit about this topic and remind us the…not only the "why" but some of the technical pieces of how this all fits together.

Landward: My pleasure. It's been really fun for me and I hope that there are those who find this helpful maybe to expand their understanding of when and when you cannot restrict speech and also the importance of why you shouldn't in as many circumstances as possible.

Meredith: You've been listening to Solutions for Higher Education, a podcast featuring Scott L Wyatt, the president of Southern Utah University. We've had as our guest today joining us by phone from his office in Salt Lake City Geoff Landward who is the Assistant Commissioner for Law and Policy and also the General Counsel for the Utah Board of Regents. Thanks for joining us, Geoff, and to all of our listeners, thank you for listening. We'll be back again soon, bye bye.