Lawyer outlines free speech on college campuses

By Jim Heffernan (’96, ’17M) 

College campuses present unique challenges when it comes to free-speech protections afforded under the Constitution, guest lecturer Emerson Sykes said during a virtual Madison Vision Series event co-hosted by James Madison University and Bridgewater College. 

“On the one hand, they’re a place where new ideas are supposed to be interrogated and explored, a place for robust debate and discussion,” said Sykes, a staff attorney with the American Civil Liberties Union who specializes in First Amendment issues, the right to protest, the intersection of free speech and racial justice, and campus speech. “At the same time, they’re a place where students live, learn and work … and we’re subjecting them to potentially offensive speech in a way that professional adults are not.” 

Sykes cited a case involving Arkansas State University, where a conservative student group was trying to set up a table in a public area of campus to solicit signatures to start a chapter at the school. Campus police intervened, telling the students they were in violation of the school’s free speech-zone policy, which required that a group obtain university approval 72 hours in advance of setting up a table.  

In 2019, Sykes and his ACLU colleagues filed a friend-of-the-court brief arguing that such zones violate the First Amendment. “We argued that the sidewalk of a public university must be considered a public forum,” requiring the highest level of free-speech protection, Sykes said. 

The First Amendment to the Constitution is, in essence, a restriction on government, Sykes said. It begins, “Congress shall pass no law” infringing on freedom of religion, expression, assembly or the right to petition.  

Public universities like JMU, which receive government funding, are thus restricted in how they can regulate free speech among their community members, Sykes said, whereas private institutions, such as Bridgewater College, largely are not. 

Government cannot restrict speech based on the viewpoint being expressed, Sykes said. “So, you can’t allow one viewpoint,” he said, “and not allow [an opposing] viewpoint.” 

Restrictions to free speech have to be content-neutral, Sykes said. Speech that is potentially offensive or hateful, or counter to social and cultural norms is, in fact, protected by the First Amendment, he said. 

Of course, not all speech is protected. Harassment, defamation and speech intended to incite violence are among the types not protected under the First Amendment. However, these categories are narrowly drawn, he said. 

Sykes, who was a legal adviser for Africa at the International Center for Not-for-Profit Law prior to joining the ACLU, said his belief in the need for free-speech protections is rooted in international human rights.  

“I believe in a fundamental right that we all possess—to hold opinions, to have a voice, to disagree with our leaders and to hold folks accountable,” he said. “I also have a fundamental distrust of government to make decisions about what is OK or not OK to say. 

“I’ve seen firsthand what happens when you don’t have robust protections of free speech,” he said of his time in Africa, “when the government does have the right and the authority to discriminate against people based on their viewpoints.” 

Sykes said he came to work at the ACLU “out of admiration for activists, specifically campus activists, in recognition of the great power that they hold to shape their campuses, their communities and our society as a whole.” 

He recently conducted a workshop for student activists at the University of California San Diego to help them understand their rights under the First Amendment and achieve their goals. 

“Unlike many people, I don’t lament the state of kids these days,” he said. “I think we’re in great hands with their energy, empathy and passion.” 

Sykes fielded questions from JMU President Jonathan R. Alger and Bridgewater College President David W. Bushman, as well as audience members, on a range of topics, including time-based restrictions on free speech, social media and best practices for colleges and universities. 

“When these difficult questions come up about speech, your first reaction should be to look at the person across from you, have some empathy and listen,” Sykes said. “Be community members first. Be willing to listen and willing to address these issues together. 

“If someone feels heard, you’re less likely to run into these same problems in the future,” he said. “These issues tend to blow up when a university’s response is tone deaf or dismissive.” 

 ###