FAQ's
What does the First Amendment protect?
Generally, the First Amendment to the U.S. Constitution protects all speech, although the following forms of speech enjoy varying degrees of less protection:
- Speech involving obscenity (e.g., child pornography).
- Speech involving defamation and/or libel.
- Speech involving illegal conduct, such as:
- Criminal threat: Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement is to be taken as a threat, even if there is no intent of actually carrying it out. The threat must be, on its face and under the circumstances in which it is made, so unequivocal, unconditional, immediate, and specific as to cause the person threatened to reasonably fear for his or her own safety or for his or her immediate family's safety.
- Hanging a noose on a college campus for the purpose of terrorizing members of the campus community with the knowledge that it is a symbol representing a threat to life.
- Obstruction of a police officer.
- Fighting or challenging another to fight in a public place.
- Use of offensive words in a public place which are inherently likely to provoke an immediate violent reaction (e.g., "fighting words").
- Inciting illegal activity.
- Willful disturbance of any lawful meeting (must "substantially impair" the meeting by intentional conduct in violation of implicit or explicit rules for the meeting that violator knew or should have known).
- Unlawful assembly and refusal to disperse.
- Vandalism and defacing property of another.
- Disturbance by loud and unreasonable noise.
- Trespass.
As evidenced by Tinker v. Des Moines in the historic Supreme Court ruling from 1969, students' rights to free speech and expression in public schools is protected so long as it in not disruptive to the educational process.
Does the First Amendment protect civil disobedience on campus?
Protests and civil disobedience have played a historic role on university campuses in bringing important and beneficial changes within society and in the development of our democracy. However, the Constitution does not guarantee any right to engage in civil disobedience - which, by its very definition, involves the violation of laws or regulations - without incurring consequences. Civil disobedience may have a negative effect on the protected interests of others and may interfere with university business or threaten public safety or university assets, in ways that require the university to act to protect those other interests.
What is hate speech and is it illegal?
The term "hate speech" is not defined by law and no such category exists as an exception to the First Amendment. Thus, even if speech is hateful or offensive, it is still protected by the First Amendment.
Legal scholars have supported the idea that the best way to respond to hateful or offensive speech is not to attempt to limit it but instead to encourage more speech. For example, as Justice Louis Brandeis famously wrote,
If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.
Whitney v. California, 274 U.S. 357, 377 (1927)
Likewise, the American Civil Liberties Union believes that:
Where racist, misogynist, homophobic, and transphobic speech is concerned, the ACLU believes that more speech - not less - is the answer most consistent with our constitutional values.
Speech on Campus, ACLU
It is important to note that while hate speech in itself is not a category protected by the First Amendment, the First Amendment does not protect conduct just because it is motivated by an individual’s beliefs or opinions. Thus, hate crimes may be regulated by law and are not subject to protection by the First Amendment.
CSUCI offers tools to address words or actions that impact campus climate or violate the Student Code of Conduct and/or other University policies. Students who encounter hurtful or offensive speech are encouraged to reach out for support.
What is academic freedom?
The principles of academic freedom protect freedom of inquiry and research, freedom of teaching, and freedom of expression and publication. These freedoms, outlined in the Constitution of the Academic Senate, enable the University to advance knowledge and to transmit it effectively to its students and to the public. The University also seeks to foster in its students a mature independence of mind, and this purpose cannot be achieved unless students and faculty are free within the classroom to express the widest range of viewpoints in accord with the standards of scholarly inquiry and professional ethics.
When does speech become harassment?
The University's Statement of Harassment defines harassment as follows: conduct that is so severe and/or pervasive, and objectively offensive, and that so substantially impairs a person's access to university programs or activities that the person is effectively denied equal access to the university's resources and opportunities. Harassment includes, but is not limited to, conduct that is motivated on the basis of a person's race, color, national or ethnic origin, citizenship, sex, religion, age, sexual orientation, gender identity, pregnancy, marital status, ancestry, service in the uniformed services, physical or mental disability, medical condition, or perceived membership in any of these classifications.
Is speech on the internet and social media entitled to the same level of protection?
Yes. In the case Reno v. ACLU, the Supreme Court rejected the government's argument that speech on the internet could be more carefully regulated as it is with radio and television broadcasting and concluded that the internet, as with print media, should be given the full protection of the First Amendment.
What criteria is used to evaluate speakers coming to campus?
As a public university, we cannot deny access to the campus based on content, even if it might be offensive. However, the campus has several strategies in place to mitigate the potential impact to the campus community and to encourage safe/effective counter events. One such strategy is enforcement of the Policy on Time, Place, and Manner and the Use of University Buildings and Grounds which guides when, how, and where people can engage in free speech on campus. Additionally, the University has a campuswide leadership team called the Preparedness Working Group (PWG) that is focused on fostering a climate of civil discourse, open inquiry, and discussion of ideas and free expression on campus while maintaining a safe and welcoming environment for diverse points of view. The PWG reviews requests that include speakers and other gatherings to assess and review potential impact to the campus community and implements mitigations if necessary. This group also works closely with staff, faculty, and students across campus to assist with communication regarding such events, to plan effective counter events, as well as to provide support and intentional outreach in advance of an event that may be harmful to certain populations.