FAQ: Free Speech on Campus

A: The First Amendment generally allows persons to speak freely while located in a public forum.  A public forum is defined as all generally accessible outside areas of the University’s campus.  Generally, almost any topic is permissible, as are most printed materials, visual images, photographs, or physical items put on display. A broad array of language is permissible, including words that some may consider to be hateful, offensive, profane, vulgar, or extremely descriptive. A topic is not excluded from First Amendment protection simply because it may be considered controversial within the community, such as religion, politics, sexuality, gender identity, government, military or police issues, etc.  However, there are some categories of speech that do not qualify for First Amendment protection, which are addressed below.

A: Unprotected speech is speech that does not enjoy the protections of the First Amendment and may be regulated because of its content.  Such speech generally can be classified into the following categories: obscenity, fighting words, defamation, child pornography, fraud, speech integral to criminal conduct, incitement of imminent lawless behavior, and true threats.  The application of these exceptions is narrowly applied and fact specific.

• Obscenity:  The speech must appeal to the prurient interest in sex, as judged by contemporary community standards; depict or describe sexual conduct in a patently offensive way; and lack serious literary, artistic, political, or scientific value.
• Fighting Words: Speech that tends to incite an immediate and violent response from an average person.  But speech will not be restricted just because it is upsetting or arouses contempt.  Speaking generally about a controversial or offensive topic typically will remain protected. The fighting words exception normally does not apply to speakers addressing a crowd on campus but may apply to speakers addressing specific individuals in the immediate area, no matter the size of the crowd.
• Defamation:  False statements of fact about a person.  In cases concerning a public official or figure, the speaker must have acted with intent in making the false statement.  In certain cases, the party alleging defamation must show actual damages. 
• Child Pornography:  Such speech is distinct from obscenity because of the criminal nature of the speech.  Speech is considered child pornography when it visually depicts sexual conduct by children below a specific age. 
• Fraud:  Speech may be regulated to prevent public or consumer deception. 
• Speech Integral to Criminal Conduct: Speech used as an integral part of conduct in violation of a valid criminal statute.
• Incitement of Imminent Lawless Behavior:  Speech may advocate the use of force or lawbreaking except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.
• True Threats: Speech meant to communicate a serious expression of an intent to commit an act of unlawful violence to an individual.

A: The term “hate speech” is often misunderstood. While the term is commonly used, “hate speech” does not have a legal definition, and individuals differ on what is considered “hateful.”  The term “hate speech” is often used to refer to speech that uses pejorative language with reference to a person or a group on the basis of who they are (i.e., religion, race, ethnicity, nationality, gender, or other identity factor).  However, such speech is not categorically considered unprotected speech. Rather, it will generally still enjoy First Amendment protection unless it otherwise falls under one of the categories of unprotected speech addressed above.

A: Even if speech enjoys First Amendment protection, it can still be restricted in certain ways. Content-neutral restrictions may be placed on the time, place, and manner of speech.  For example, persons in outdoor venues of the University not generally accessible to the campus community (e.g. Nippert Stadium) have limited free speech rights in that they may not engage in conduct that interrupts any regularly scheduled event, game, performance, etc.  Time, place, and manner restrictions can be found in the University’s Facilities Use Manual.

A: This is the potentially unlawful suppression of particular speech due to an anticipated hostile reaction from the audience. Generally, action taken by the University to restrict protected speech must be based upon content-neutral factors and the University may not prevent or stop speech based solely on how it believes the audience will react to the speech.  The First Amendment will generally require the University take reasonable measures to ensure a hostile crowd does not prevent unpopular speech.

A: The First Amendment does not protect behavior on campus that meets the definition of “harassment” under applicable University policy and rules. Relevant University policies and rules may include:

• Policy on Harassment
• Title IX Sexual Harassment Policy
• Sex- and/or Gender-Based Misconduct Policy
• Discriminatory Harassment
• Student Code of Conduct

Violation of any University policy or rule by members of the Campus Community could result in disciplinary procedures in accordance with the applicable policy or rule.