Protected and Unprotected Speech
Protected Speech
Speech that is unpopular, offensive or even abhorrent may be protected by the First Amendment. This does include speech that is political in nature, racist, sexist or otherwise unbecoming. And, like individuals can have and express controversial points of view, student groups are also allowed to invite provocative speakers to campus as long as relevant University policies are followed. (adapted from the Stanford Office of Community Standards)
Examples of Protected Speech (from the Stanford Office of Community Standards)
- Wearing controversial political attire, buttons or insignia. Free speech is about more than just what is spoken, and messages on clothing are also protected by the First Amendment. This includes anything from a Black Lives Matter shirt to a Make America Great Again hat (Minnesota Voters Alliance v. Mansky, 2018).
- Hate speech. Speech that is offensive to a group of people, but not directly targeted at any specific person(s), is generally protected. Even if that speech makes non-specific threats against the group being targeted.
- Speech that might provoke a violent response. While the University can take some proactive steps to prevent violence when speech might provoke a hostile response, in general, such speech cannot be stopped just because it might produce violence. Doing so would be legally classified as “prior restraint” and is illegal unless done as a last resort in light of a serious safety threat.
Unprotected Speech
Some speech may be subject to discipline if specific legal thresholds are met. The threshold varies based on the issue and type of speech. Speech that may rise to the legal threshold of unprotected speech may include Sexual Harassment; Race-based Harassment; Obscenity; Fighting Words; Incitement of Imminent Lawless Action; True Threat; and Defamation. (See Glossary of Terms for details)
Of note to remember is that these thresholds are not easily met and much of the speech on campus will remain protected. Even abhorrent speech may be protected under the First Amendment and may not be subject to university discipline.
Examples of Unprotected Speech (adapted from the Stanford Office of Community Standards)
- Speech that establishes a genuine physical threat toward a specific individual. While any form of hateful speech may feel threatening, only speech that communicates or incites a serious intent to harm is no longer protected under the First Amendment. This speech must be directed toward a particular individual or a group of specific individuals and does not include hyperbole, jest or emotional rhetoric.
- Speech that falls under the legal definition of harassment. Speech that meets a specific legal standard of harassment is not protected by the First Amendment. This goes far beyond offending someone. In higher education, speech must be “so severe, pervasive and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.” (Davis v. Monroe County Board of Education, 1999).
- Speech intended to provoke someone else to commit an act of violence. Otherwise known as the “Fighting Words” doctrine, speech targeted at an individual with the express purpose of causing a fight is not protected under the First Amendment. This is a narrow exception that only applies to speech directed at individuals in face-to-face encounters that include physical threats or intimidation.
- Speech that is excessively sexual to the point of being patently offensive and without any redeeming value. Speech can be restricted if it meets the legal standard of Obscenity. To be legally obscene, speech must appeal to the “prurient interest”, violate state law by depicting/describing excessively sexual material in a clearly offensive way, and also have no serious literary, artistic, political, or scientific value.
- Speech that materially impacts the educational function of the University. A student interrupting a classroom lecture, speech outside of a classroom that is so loud it impacts the learning environment, or protests that block access to a classroom and keep a regularly-scheduled class from convening are examples of speech that directly interferes with the University’s ability to fulfill its educational mission.
For additional information, visit University of California-National Center for Free Speech and Civic Engagement
For First Amendment/Freedom of Expression Education Resources, visit University of California Center for Free Speech Resources
Expression on Campus
It is important to note that all individuals must abide by the University space-usage policies as well as understand the SIUE policy regarding Expressive Activity. Understanding the policies governing the general operations of the University assists all constituents with accountability and responsibility for following those policies. The Policy on Expressive Activity includes an outline of which spaces are open for freedom of expression and in what format.
One must remember that outside of designated areas, there may be site-specific space-usage policies that must be abided by. Under most circumstances, University spaces can be reserved by student organizations, campus departments and community members. There are some spaces that are restricted for a specific purpose and cannot be reserved. If this is the case, it is imperative to understand that restrictions are content-neutral and uniformly applied regardless of the event’s focus. Those who gather in these restricted spaces may be disciplined for failing to abide by the space-usage policies.
It is also relevant to understand that while some speech is unprotected, the speaker still has procedural rights. This means that although the University may promptly limit the impact of unprotected speech, the speaker is still afforded appropriate rights under applicable codes and policies (e.g. student under the Student Code of Conduct or employee under their specific bargaining unit’s contract or University policy) and any disciplinary course of action would still follow the outlined policies and procedures.
What are you going to do?
Even though speech may be protected, it may not be in alignment with our values as an antiracist, diverse, equitable and inclusive community, and can still be addressed by the University. On campus, protected speech is best addressed by understanding and communicating impact. This communication can be done in multiple ways, including individual or group interventions. These interventions are often arranged informally by student-facing staff and or members of the Campus Climate Reporting System Support Team who connect with those who submit concerns. You can seek a formal response to harmful speech by completing a campus climate reporting form.
Conversations resulting from a campus climate reporting form are intentionally individualized per the reported concern and do not always address the harm done to the campus community as a whole. While there may be times when the campus community is addressed as a whole, it cannot be expected that the campus will receive a message for every individually reported incident, especially those that may warrant consideration of an investigation. However, to view messaging that has been initiated or for a greater understanding of how different situations are addressed, visit our Campus Climate Reporting System Dashboard for more information.
What Should I Do?
It is imperative for us all to understand the complex connection between protected speech and building and maintaining a campus climate that supports all constituents' ability to engage in campus activity without concern for their psychological or physical safety.
In this environment, you have the ability to determine which thoughts and ideas have an impact on you; which are worthy of merit and attention and those which are not. Having the right to free speech means having the freedom to walk away when faced with abhorrent speech. You do not have to be a captive audience or engage with those who may cause you harm, whether intentionally or unintentionally. Remember this very important aspect of your own rights.
Also know that there are a multitude of support resources on campus for those who have been impacted by hateful speech, and for our community as a whole. These include SIUE’s Kimmel Belonging and Engagement Hub (The Hub); Office of Equal Opportunity, Access and Title IX Coordination; Counseling Services, as well as a variety of offices in the Division of Student Affairs.
Any feelings you experience of distress, hurt, confusion, frustration and anger are all understandable emotions when experiencing isolating or polarizing speech. When you experience any of these feelings, need a place to process things, or simply need an empathetic and listening ear, please reach out to the resource that feels best. There is a community of care here to support you.
