Media Law for the Real World, special edition: The limits of campus speech
This special edition of 'Media Law for the Real World' is in response to a post from the Foundation for Individual Rights and Expression — published just yesterday.
When The Catholic University of America told a student group it couldn’t host an event about antisemitism without presenting “both sides,” the Foundation for Individual Rights and Expression (FIRE) pushed back, calling it compelled speech.
But here’s the first question worth asking: why is FIRE involved at all? Catholic is a private university. Private universities are not state actors, which means the First Amendment doesn’t apply to them. FIRE can’t threaten a lawsuit on constitutional grounds here.
So what’s the play?
FIRE’s mission isn’t always litigation. Sometimes it’s advocacy by publicly pressuring an institution into following its own stated commitments.
What the policies actually say
Catholic’s demonstrations policy states that the university “values and defends the right of free speech and the freedom of members of the University community to express themselves on University property” — with one significant qualifier: “provided that such expression does not violate the law or applicable University policies.” That last clause does a lot of heavy lifting.
What are those applicable policies? Catholic’s presentations policy states that “balanced programs explaining positions on both sides of a controversial societal, political, moral and/or ecclesiastical issues may be staged in the pursuit of a more complete educational experience and a greater understanding of the issues.” The operative word is may — not must or shall. The balancing requirement was never a firm rule. It’s discretionary.
The same policy also makes clear that Catholic, as a private institution, “is not required to provide a forum for advocates whose values are counter to those of the University or the Roman Catholic Church.”
So where does that leave FIRE?
Their strongest argument isn’t the compelled speech framing — it’s consistency. FIRE claims other student groups have hosted Democratic officials and pro-life activists without being required to include opposing speakers. If that’s accurate, Catholic isn’t applying a neutral policy. It’s making selective judgment calls. And while Catholic’s policies give it broad discretion, discretion applied unevenly is harder to defend — both legally and publicly.
Can Catholic do this? Legally, yes. Should they, given their own stated commitments? That’s a harder question. And it’s exactly the one FIRE is forcing them to answer out loud.
See FIRE’s full letter to The Catholic University of America: