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Academic Freedom and The Patriot Act

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Freedom of speech, of the press, of association, of assembly, and petition comprises what we refer to as freedom of expression. Without it, other fundamental rights would cease to exist. Despite it being the core of our constitution, our commitment to freedom of expression has been tested over and over again. People exercising their First Amendment rights have been censored, fined, even jailed. Those with unpopular political ideas have sometimes suffered the wrath of the government. During WWI, a person could be jailed for handing out anti-war leaflets. This was a time of evolution for the First Amendment. We now live in the most speech-protected country in the world.

In 1969, in Brandenberg v. Ohio, it was decided that speech can be suppressed only if it is intended, and likely to produce, “imminent lawless action.” Otherwise, even speech that advocates violence is protected. The Brandenberg standard prevails today. First Amendment protection is not limited to “pure speech” — books, newspapers, leaflets, and rallies. It also protects “symbolic speech” — nonverbal expression whose purpose is to communicate ideas. This may include works of art, armbands in protest, or t-shirts.

When a protest crosses the line from speech to action, the government can intervene more aggressively. Political protesters have the right to picket, to distribute literature, to chant, and to engage passersby in debate. But they do not have the right to block building entrances or to physically harass people.

There has always been controversy for defending the free speech rights of groups that spew hate. If only popular ideas were protected, we wouldn’t need a First Amendment. Freedom of speech does not prevent punishing conduct that intimidates, harasses, or threatens another person, even if words are used. Threatening phone calls, for example, are not constitutionally protected.

The Supreme Court has recognized the government’s interest in keeping some information secret. The Court has never actually upheld an injunction against speech on national security grounds. The amount of speech that can be curtailed in the interest of national security is very limited and the government has historically overused the concept of “national security” to shield itself from criticism. This also discourages public discussion of controversial policies or decisions. The public’s First Amendment “right to know” is essential to its ability to fully participate in democratic decision-making.

The Supreme Court has recognized several exceptions to First Amendment protection. “Fighting words” or those by their very utterance inflict injury or tend to incite an immediate breach of the peace are not protected. Defamatory falsehoods about public officials can be punished only if the offended official can prove the falsehoods were published with actual malice. For a work to be deemed legally obscene, three conditions must be present:

  • It must appeal to the average person’s prurient (shameful, morbid) interest in sex
  • It must depict sexual conduct in a “patently offensive way” as defined by community standards
  • It must lack serious literary, artistic, political or scientific value.

In the aftermath of the September 11, the boundaries of the first amendment can sometimes seem blurry. Your school can collect a wealth of personal information about you, including your medical records, your financial records, and your disciplinary records. They are permitted to release this information to the federal government. About 200 colleges and universities have turned over student information to the FBI, INS and other law enforcement officials. The FBI is employing campus police on a part-time basis to monitor political and religious activities on campus and investigate student, faculty and staff backgrounds. These police are prohibited from reporting this information to the university. Universities may institute policies that restrict when and where students, faculty, and staff may communicate a certain issue. Universities may sanction students or faculty for written or spoken commentary. Both the government and universities may institute policies that prohibit the research and writing about certain topic areas in the interests of “national security.”

The US Patriot Act has broadly expanded the need for first amendment rights. This means that student groups and other activists that engage in civil disobedience could very well find themselves labeled as terrorists and have their assets seized. – Even if this so called civil disobedience is sharing a viewpoint. The patriot act allows federal law enforcement to get a court order to conduct secret “sneak and peek” searches of a dorm room, apartment or home. Investigators can secretly enter your residence, take pictures, copy computer files and seize your belongings without informing you that a search was conducted for an indefinite period of time. The Justice Department has recently admitted that 88% of these “sneak and peek” searches have been carried out in cases that have nothing to do with terrorism. The Patriot Act does not actually require any link to terrorism.

While parts of the US Patriot Act seem to violate the First Amendment and others the fourth amendment, the fact that the government is violating your rights is an important one. They are in direct violation of your academics freedoms. Academic freedom is essential for three reasons:

  • Academic freedom is necessary for a higher education. The free exchange of ideas is crucial to a college education. Unless students and faculty are provided liberty to write, research, speak, and teach without punishment, no genuine higher education is possible.
  • Academic freedom is necessary for a free society. Colleges and universities are the primary sources for dissenting ideas and vibrant debate in American society. Nowhere else are intense intellectual debates a common part of American culture. When academic freedom is restricted, and students, faculty, and staff feel that their speech is restricted, the larger culture is affected and silenced.
  • Academic freedom is necessary for the quality of education. Academic freedom is more than a good in itself; academic freedom also attracts the best teachers to the field of higher education and encourages student learning. While America’s universities are widely regarded as the best in the world, American elementary and high schools—where teachers and students have far less academic freedom—commonly rank poorly in international comparisons.

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