The Law

The Basics

The First Amendment

The First Amendment protects people’s rights to free speech, expression, press, and assembly, as well as the right to petition the government. These fundamental rights extends to all individuals in the United States, regardless of factors such as religion, gender, race, citizenship, or sexual orientation. Under the First Amendment, people have the right to create, publish, convey and receive information; to express their views; to speak freely; and to be free from retaliation or efforts to restrain their expression. Although free speech is an essential value of the United States, it is important to note that it is not absolute. The government may impose regulations on certain kinds of speech, including but not limited to harassment, threats, slander, and instances in which an individual participates in incitement of violence. In addition to jurisprudence and precedent, there are several federal statutes that regulate certain kinds of speech, including Title VI and Title IX.

Public Universities

Public and private universities are held to different legal standards when setting internal regulations for First Amendment rights on campus. While public universities are beholden to principles of the First Amendment, they may impose what are known as time, place, and manner restrictions on the exercise of those rights by individuals on campuses. A public university may impose these restrictions as long as they are reasonable and content-neutral, are in the interest of preventing significant disruption, and leave open other means of communication. Any campus policy that regulates speech based on content is unconstitutional unless the university can show that the regulation is narrowly tailored to serve an important university function. Often, the context that a policy seeks to regulate on campus—such as speech in a classroom versus in public areas versus in student dormitories—is relevant to understanding whether it is constitutional.

Private Universities

Because private universities are not government entities, they are not required to uphold First Amendment protections in the same manner as public universities. In other words, private universities may impose stricter limitations on free speech. Still, most adhere to free speech principles and support academic freedom. Private colleges that receive federal funding must also adhere to federal anti-discrimination laws, such as those applicable under Title IX. 

There are some exceptions to this rule. Private universities that accept government funding or which otherwise engages with government closely may be required to adhere to the First Amendment more closely. State governments may also pass statutes requiring private universities to respect free speech rights as a matter of state law, even when the US Constitution imposes no such requirement. For example, California law applies First Amendment protections to both public and private universities. Congress also has the power to propose and pass federal laws which would require private universities, by statute, to adhere to various free speech guidelines.

Campus Policies

In an effort to balance the educational value of free speech against the value of providing a safe and supportive community for all students, some universities have considered or adopted policies that regulate or prohibit speech deemed hateful or offensive. Public universities, however, must be sure that their policies do not contravene the First Amendment. Some policies promulgated by public universities have been found unconstitutional, particularly related to university regulation of offensive speech, bias reporting, and other expressive speech. To learn more about how to evaluate these policies at public universities, see FIRE’s “Correcting Common Mistakes in Campus Speech Policies.

Private universities are able to impose even greater restrictions as long as they do so within the bounds of their legal obligations to members of the campus community. Private universities should also ensure that their policies allow the campus to remain open to a broad range of diverse ideas and perspectives. Students seeking to understand the parameters of conduct on campus should consider both relevant law and university policies.

Time place and manner restrictions are limitations imposed by the government on expressive activity, such as limits on noise, the number of protesters allowed in a public space, or barring early morning or late night protest. The restrictions must leave ample alternative channels for communicating the speaker’s message.

Federal Statutes

Beyond the contours of free speech rights afforded by the Constitution and the First Amendment, the two most significant federal statutes regulating speech in higher education are Title VI and Title IX, which prevent discrimination on the basis of race and sex, respectively. 

The Office of Civil Rights in the Department of Education has stated that these federal regulations are “not intended to restrict the exercise of expressive activities protected under the U.S. Constitution.” Rather, they apply only to unprotected speech that constitutes discrimination and harassment and creates a hostile environment. The offensiveness of speech alone is not sufficient to establish that it has created a hostile environment. A hostile environment is created when the harassment is “severe, persistent, or pervasive” and “sufficiently serious to deny or limit a student’s ability to participate in or benefit from an educational program.” Schools are obligated to take action if speech or conduct contributes to a hostile environment.

Title VI

Title VI of the Civil Rights Act of 1964 states that 

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

This applies to both public and private schools that receive federal funds.

Title IX

Title IX of the Education Amendments Act of 1972 states that 

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.

This applies to both public and private schools that receive federal funds. Title IX has been contentious, with some arguing that its implementation goes too far in its definition of sexual harassment and has a chilling effect on speech and others arguing that it does not go far enough to protect people from sexual harassment.While Title IX is still governed by Obama-era guidance, Secretary of Education Betsy DeVos proposed a series of changes in 2018 that would narrow the definition of sexual harassment.

Hateful Language and Offensive Speech

Hateful language and offensive speech may be subject to punishment in a variety of contexts. However, hate speech remains constitutionally protected speech under the First Amendment, as the United States Supreme Court has regularly upheld. The United States adheres to the principle that the solution to offensive speech is more speech. Within this principle are nuanced exceptions, such as instances in which speech that intentionally incites violence may be found punishable.

While many countries ban hate speech, the U.S. has taken a different path. The Supreme Court has consistently ruled that such speech enjoys First Amendment protection unless it is directed to causing imminent violence or involves true threats against individuals.

It is important to distinguish between hate crimes and hateful speech. There are various federal and state-level hate crime statutes. For the purposes of data collection, the FBI defines a hate crime as a “criminal offense against a person or property motivated in whole or in part by an offender’s bias against a race, religion, disability, sexual orientation, ethnicity, gender, or gender identity.” Unlike hate speech, all hate crimes are punishable criminal acts that are treated with priority by the federal government, and by almost all states, due to their extreme impact on individuals, groups and society. As the FBI articulates, “a hate crime is a traditional offense like murder, arson, or vandalism with an added element of bias…Hate itself is not a crime.” State-level hate crime statutes are typically “penalty enhancement” statutes, which means they increase the punishment for a defendant if the target of a hate crime is intentionally selected because of his/her personal characteristics.

State Legislation

Since 2017, over 30 states have proposed or passed new laws specifically focused on campus speech. As these debates often prompt heated debate around campus communities, different political actors and free speech groups continue to propose new legislative or regulatory “solutions.” Most of these proposals have been based on a handful of model bills, such as the Campus Free Expression Act (CAFE), authored by the Foundation for Individual Rights in Education (FIRE), the Campus Free Speech Act, authored by the Goldwater Institute, and the FORUM Act, authored by the American Legislative Exchange Council (ALEC). PEN America has discussed each of these bills in our reports, including Wrong Answer: How Good Faith Attempts to Address Free Speech and Anti-Semitism on Campus Could Backfire and Chasm in the Classroom: Campus Free Speech in a Divided America.

Other legislative proposals with repercussions for free speech on campus have been taken up at both the federal and state levels. Most notably, this includes the proposed Anti-Semitism Awareness Act, first introduced in Congress in 2016. Other actions which have widespread implications for speech on campus include recent Department of Education changes to its guidance strictures for Title IX investigations, and President Trump’s Executive Order on “Free Inquiry” in March 2019. PEN America has also previously commented on each of these developments, and continues to monitor them.

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