First amendment and the court
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
The First Amendment to the Bill of Rights guarantees American citizens the right to free of speech. Throughout American history, when the legislature and executive branches have enacted laws that violated this right, citizens have been able to challenge those laws in court against the text of the Bill of Rights. From the onset, the Supreme Court has recognized that the right to speech is not absolute, that speech can be prohibited if it causes a clear and present danger. No citizen has the right to yell "Fire!" in a crowded movie theater. While the Supreme Court has fluctuated in allowing restrictions on free speech during times of war, today speech is understood to be one of the most fundamental rights guaranteed to American citizens, especially speech that is related to the political and social issues of the time.
Although the Bill of Rights initially only applied to the federal government, after the passage of the 14th Amendment, specific rights were incorporated to apply to the state governments as well. The First Amendment was incorporated in 1925 in the majority opinion of Gitlo v. New York.
In R.A.V. v. City of St. Paul the Supreme Court struck down a hate speech ordinance that made placing "on public or private property a s ymbol, object, appellation, characterization or graffiti...which knows or has reasonable grounds to know arouses anger, alarm, or resentment in others on the bass of race, color, creed, religion or gender" a misdemeanor. The ordinance was ruled over-broad and unconstitutionally content-based (Shiell, 82).
State universities are funded by state governments. Therefore, they must abide by the rights that have been incorporated by the Supreme Court. This is why public universities must create policies that do not restrict the freedom of expression, that are not "over broad," aren't "content-based," and don't create a "chilling effect."
Emory University is a private school, which is why it does not have to abide by the rights guaranteed in the Bill of Rights. However, any liberal arts university that has a real commitment to free expression and the exchange of ideas should create standards of speech that, at the very least, are no more restrictive than those allowed by public universities.
Image borrowed from the Constitution Center.
Shiell, Timothy C. Campus Hate Speech on Trial. Lawrence, Kan.: U of Kansas, 1998. Print.