Freedom of Speech

What is Freedom of Speech? 

The First Amendment to the Constitution of the United States protects against government intrusion on the protected rights of individuals to express opinions, beliefs, and ideas. Expressive activity can take many forms - verbal, symbolic, posters, social media, etc. It is important to note that subject to certain limitations, including those identified below, speech with which individuals disagree, find offensive, distasteful, or wrong, and even hate speech, may still be protected speech. 

General Free Speech Concepts

Forum Analysis:

The Supreme Court has identified that expressive activity may be regulated based on the type of place where the expressive activity is being conducted. 

A traditional public fora is a place on that has traditionally been open for purposes of expressive activity, such as sidewalks, parks, and similar locations. At the University, outside areas are generally traditional public forums. A forum can also be be designated as a traditional public forum by the University. In this type of fora, time, place, and manner restrictions can still be implemented, that are not based on the content of the speech, so long as they still allow other ample opportunities for expressive activity and are carefully tailored to meet the compelling interests of the university.

Example: The university has a significant interest in allowing classes and other academic spaces be uninterrupted by expressive activity. As such, the university can create reasonable rules regarding sound amplification near such spaces.

A limited public fora is a place that has been opened for expressive activity, but limited to specific groups or topics. For example, if a speaker is invited to campus, that location may become a limited public fora where the purpose of opening the forum is to have a discussion on a specific topic. In those instances, regulations must be viewpoint neutral and reasonable based on the purpose of the fora. Note that the university is not required to open a forum for speech that is not a traditional public forum. It is only when it has decided to create such a forum that these rules apply.

Example: A speaker is invited to campus to discuss the scientific method. In that venue, that is the topic for discussion and people could share different views on that topic, as permitted based on the structure and appropriate rules set for the forum. The university could limit attendance to just students of the university. The university could also prohibit disruptive behavior or hecklers who attempt to limit the ability of the speaker to speak or listeners to hear.

A non-public fora is a location that has not been opened for expressive activity. Many indoor spaces on campus are non-public fora, for example classrooms, testing centers, offices, or libraries.

Example: An individual wants to pontificate on the benefits of vitamins to all individuals in a study hall. That individual can be asked to move to a different location appropriate for the expressive activity. 

What are the expressive rights of students?

Students do not shed First Amendment rights when they are on campus. Generally, particularly in public fora, students can and are encouraged to engage in expressive activity. However, not all speech is protected and speech can be regulated, depending on the circumstances, including those described above related to the type of forum and unprotected speech, discussed below. Important things to note:

  • As identified by the Utah Supreme Court, classrooms are not open fora for all expressive activity. Students may not be disruptive and may be required to follow the reasonable rules of the classroom based on the teaching and learning needs of the class, even when the restrictions govern the content of student speech. For example, a faculty member may create rules to limit disruptions, including prohibiting interruptions, requiring students to stay on topic, and not permitting speech that would limit the ability of others to learn, such as limiting students who monopolize or dominate the conversation. (See PPM 6-22.)
  • The university has also identified certain academic speech rights of students under PPM 9-5.

"Faculty members have a responsibility to their students to entertain all relevant questions and to discuss controversial questions objectively and freely. Where faculty members find it pedagogically useful to advocate a position on controversial matters, they should exercise care to assure that opportunities exist for students to consider other views. Faculty members shall not reward agreement or penalize disagreement with their views on controversial topics, but they can reasonably expect their students to learn the rationale behind certain positions."

Facutly should take care to engage with students, recognizing these rights. At the same time, faculty have the right to reasonably direct the course of their class. Care should also be taken by facutly to recognize the pedagogical purpose of the rules of their classroom, make those clear to students, and not restrict more speech than necessary to accomplish those pedagogical goals. 

  • Note that students cannot substanially interfere with the work of the school or impinge on the rights of other students, including doing things that would interefere with other's speech rights.
  • Off-campus, non-university student speech is generally not regulated by the university, unless it creates a substantial disruption or material interference on campus, threatens others, or is otherwise unlawful or unprotected. This type of speech may include in off-campus, non-university online activities. Care should be taken when students engage in online activity or off-campus activity not to limit speech that does not fit these criteria.

Tips for Students Planning a Demonstration or Expressive Activity:

  • Review PPM 5-38, Expressive Activity to understand where to engage in activity and what rules might apply.
  • The Union Building administration can help facilitate your event. Contact the Union Building if you desire to reserve space in order to make sure you get an advantageous location and have help with any needs you might have for services. Contacting the Union Building is not mandatory unless:
    • you are advertising your event in advance;
    • you want to use sound amplifcation equipment, tables, or displays;
    • you expect attendance beyond the capacity for the space (see the Union Building for area capacities);
    • there are any security or safety concerns (see the Union Building or WSUPD for event security guidelines);
    • you wish to engage in a demonstration indoors.
  • Communication is key to a successful event. Keeping the university and your attendees engaged can help everyone put on an event where individuals can be heard without threat of disruption or safety concerns. 

What are the Expressive Rights of Employees?

The University encourages faculty and staff to be civically engaged and to engage in fruitful academic dialogue. The United States Supreme Court has also identified that public employers have a strong interest in the operations of their workplaces. As such, the Court has determined that when employees are acting within the scope of their employment, their speech may be restricted by the government entity. This is also akin to how the courts view government speech. When the university is speaking, it speaks through its employees, and can generally ask its employees relay information as determined by the university. 

When an employee is not acting within the scope of their employment, such as off-campus or on social media, employees have rights as private citizens. However, the university may still restrict employee speech that is disruptive to the operations of the university. Where employees are speaking as private citizens, courts apply a test that examines whether the speech engaged in by the employee is a matter of public concern (not a personal grievance of the individual) and whether the interest of the employer in protecting against disruption, efficiency, harmony, and interference with business operations outweighs the interest of the employee in engaging in the expressive activity.

Additional protections are outlined when faculty are engaged in teaching, scholarship, and research to help foster the ability of faculty to engage in academic and scholarly research, instruction, and debate. See PPMs 9-1 and 9-2 for further information.   

What Kinds of Expressive Activity is not Protected?

The First Amendment only applies when the government is an actor in the speech. This means that private entities, those that are not acting as a government entity, do not have to follow First Amendment principles. 

Even when the government is an actor, certain types of speech are not constitutionally protected:

1) obscenity;

2) child pornography;

3) defamation;

4) speech that tends to incite an immediate violent reaction in the hearer;

5) speech that incites or produces imminent lawless action and that is likely to incite or produce such an action;

6) discriminatory harassment (see PPM 3-32);

7) speech that substantially disrupts, obstructs, or interferes with classes, teaching, the use of offices, ceremonies, sporting events, or other university activities;

8) speech that damages property (vandalism);

9) speech that discloses confidential information (FERPA, HIPAA, etc.) or trade secrets;

10) violent behavior intended to cause a reasonable person to fear for their safety (see PPM 3-67); 

11) employee speech carried out as part of the employee's job duties;

12) employee speech that is not a matter of public concern and is significantly disruptive to employer activities.

 

Bulletin Boards

Boards are designated for their specific purpose throughout the university. Board may be designated for specific uses and their designations should be noted on the board. For example, a department may use a bulletin board for their own university purposes to convey their university message. In that event, outside messages may not be allowed. However, other boards are open for posting for specific purposes (events for students) or for any postings. Postings not made by the university are governed by PPM 7-10, Posting and Distribution of Written Materials On Campus. Questions are directed to Union Building administration.

 

Other information and helpful resources:

PPM 5-38, Use of Facilities for Events

PPM 5-39, Use of Facilities for Expressive Activity

 

Note: The information above is for general overview purposes only and does not constitute legal advice. Each situation is different and legal review is fact-specific. Consult policies for specific information.