The First Amendment and the Commencement Provocateur

This Article explores an untheorized area of First Amendment doctrine: students’ graduation speeches at public or private universities that embrace free speech principles, either by state statute, state constitutional law, or internal policy. Responding to recent graduation speech controversies, it develops a two-tier theory that reconciles a multiplicity of values, including students’ expressive interests, universities’ institutional interests in curating commencement ceremonies and preventing reputational damage and political reprisals, and the interests of captive audiences in avoiding speech they deem offensive or profane. The Article challenges the prevailing view that university students’ graduation speeches implicate individual First Amendment rights. It develops a site-specific understanding of the ritualistic sociology of the university commencement speech, which the Article argues is firmly within the managerial purview of the university. But it also argues that heavy-handed administrative regulation of student graduation speeches has the potential to undermine the academic freedom of students and professors. Reflecting on the history of the university commencement speech in the American intellectual tradition, it urges university administrators to exercise their authority to regulate speeches through transparent standards, a longitudinal view, and collaborative negotiation with student speakers. It concludes by discussing the conceptual dangers of turning the First Amendment into a metonym for every instance of speech abridgment within a managerial sphere.