Free speech, protected speech and college campuses

The issue of free speech and a university’s role in establishing an inclusive as well as safe learning environment can be a controversial topic.

UAB is against racism, white supremacy, discrimination and hate in all its forms. As a public institution and an institution of higher learning, UAB has a responsibility to follow policies, procedures and state and federal laws regarding individuals’ constitutionally protected rights to free speech. This responsibility applies even when speech is counter to the vision, mission and values we champion. To be clear though, if a policy or law is broken, UAB can and will take appropriate action.

The First Amendment of the U.S. Constitution states that Congress may make no law “abridging the freedom of speech.” But what does that mean in practice? In particular, what happens when offensive words are spoken or written on UAB’s campus or by a UAB student, employee or faculty member? Also, how does a diverse and inclusive campus balance maintaining a culture of Shared Values of integrity, respect, diversity and inclusiveness with legal and safety concerns?

In October 2019, the UAB Office of Diversity, Equity and Inclusion hosted a town hall meeting and a series of workshops for students, faculty and staff to promote education on First Amendment rights and discussion among the campus community. David Hudson Jr., a First Amendment specialist and renowned author and speaker, provided an overview of the key issues at the town hall on Oct. 14. Below is a summary of Mr. Hudson’s presentation. The views expressed are his and do not necessarily reflect the views and policies of UAB.

What does “freedom of speech” mean at a public institution?

The Supreme Court has established legal principles explaining how the First Amendment right to free speech applies at public institutions such as UAB.

As the Court stated in Brandenburg v. Ohio in 1969, “the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.” And in the 2011 Snyder v. Phelps ruling, the Court acknowledged that while speech can “inflict great pain.… we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course — to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”

The First Amendment also protects more than the spoken or printed word. In Tinker vs. Des Moines Independent Community School District in 1968, the Court ruled that students at a public high school had the right to wear black armbands to school to declare their support for a truce in the Vietnam War. Similar rulings uphold the First Amendment right to burn flags and other symbolic actions.

What about “hate speech”?

There is no exception to the First Amendment banning “hate speech,” or any case law defining what constitutes hate speech. In Police Department of the City of Chicago v. Mosley in 1972, the Court unanimously stated that the “government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views. And it may not select which issues are worth discussing or debating in public facilities.… Government must afford all points of view an equal opportunity to be heard.”

Content-based restrictions on speech on the part of public institutions such as UAB are presumptively unconstitutional.

Is all speech protected?

These legal protections, however, do not mean that anyone can say anything at any time. The Supreme Court has ruled that there are several categories of speech that are not protected under the First Amendment.

  1. True Threats

    The First Amendment right to free speech does not confer the right to threaten someone’s life or cause others to reasonably fear for their physical safety. In Virginia v. Black in 2003, the Court ruled that a “true threat” is a statement communicating “a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals,” adding that “the speaker need not actually intend to carry out the threat.”

    The prohibition of true threats is designed to protect individuals from the fear of violence, from the disruption that fear engenders and from the possibility that the threatened violence will occur, the Court continued.

    A reasonable fear, in this case, means that a reasonable person would interpret the speech as a true threat to physical safety. It is not enough that one individual finds the speech to be threatening.

  2. Fighting Words

    In Chaplinsky v. New Hampshire in 1942, the Court said that “fighting words,” which it defined as “epithets likely to provoke the average person to retaliation, and thereby cause a breach of the peace,” are not protected by the First Amendment. The Court refused to overturn a Connecticut Supreme Court decision characterizing fighting words as “threatening, profane or obscene revilings.”

  3. Harassment

    Free speech does not mean a speaker has the right to harass an individual on the basis of race, ethnicity, sex, religion or sexual orientation. This protection falls under Title VII of the 1964 Civil Rights Act (for employees) and Title IX of the Education Amendments of 1972 (for employees and students).

  4. Destruction of Property

    The First Amendment does not encompass the right to destroy another person’s property under any circumstances.

  5. Disruption of Classes and Activities

    Freedom of speech does not convey the right to breach the peace, including occupying buildings, disrupting other speakers or interfering with normal university functions.

Physical abuse, sexual misconduct, offenses against property and offenses disrupting order, it should be noted, are all prohibited by a number of UAB policies including but not limited to the UAB’s Title IX Policy, UAB’s Equal Employment Opportunity Policy, the UAB Student Conduct Code and UAB Enterprise Code of Conduct.

What is an appropriate response to offensive or hateful speech?

In Whitney v. California in 1927, Chief Justice Brandeis wrote a concurring opinion for the Court arguing that “the remedy to be applied is more speech, not enforced silence.”

Students can help guide campus planning efforts to make UAB a more inclusive and welcoming environment by taking part in the UAB Diversity Campus Climate Survey.

Student Multicultural and Diversity Programs promotes a supportive, inclusive and equitable campus culture through education, training and other programs.

What UAB policies are in place regarding student protests and public speech?

The On-Campus Student Demonstrations policy, effective Sept. 12, 2000, states:

  1. Student demonstrations on the UAB campus, which by their nature may interfere with pedestrian or vehicular traffic or other activities, shall require prior notification to the Vice President for Student Affairs or designee at least 48 hours in advance of the event.
  2. Such demonstrations shall be subject to reasonable time and location so as not to interfere with other activities.
  3. Students participating in demonstrations are subject to ordinary standards of student conduct.

The Sidewalk Chalking on University Surfaces policy, effective Oct. 9, 2000, states:

  1. Sidewalk chalk on any UAB surface is prohibited except with prior approval and completion of the attached form. Interested groups may obtain the appropriate form and submit a completed form to the Office of Student Life. This office must receive the completed form at least seven (7) days in advance of the actual event.
  2. Requests for permission to chalk sidewalks/surfaces will be accepted from any funded programming entity of the University and/or recognized student organizations. All chalking must pertain to a particular event as stated on the request form and not reference other activities.
  3. If near a UAB building, permission will also be granted by the administrator responsible for that facility. For chalking near the Hill University Center, contact the Assistant Vice President for Facilities and Finance at 934-6290. For most academic buildings, contact the Provost Facilities Coordinator at 934-8751.
  4. Events will be considered on a case-by-case basis.
  5. No vulgar/profane language or illustrations may be chalked on any surface.
  6. Chalking is only permitted on sidewalks and outdoor walkways. Chalking is prohibited on any building surface.
  7. Approval for chalking will be granted for specific areas as stated on request form. Chalking in non-designated areas could result in loss of future privileges for the group or individual in violation. Groups should not chalk within 25 feet of building entrance doors so as to avoid tracking chalk into facilities.
  8. Any violation of this policy may result in damage/cleanup expenses being incurred by the organization/individual and/or sponsoring program, as well as other sanctions. A minimum fine of $50 will result for violation of above regulations.

What about Alabama law and “free speech zones”?

In 2019, Alabama lawmakers passed a bill specifying that public institutions of higher education in the state “shall not permit members of the campus community to engage in conduct that materially and substantially disrupts another person’s protected expressive activity or infringes on the rights of others to engage in or listen to a protected expressive activity that is occurring in a location that has been reserved for that protected expressive activity.” The law, which will go into effect on July 1, 2020, states that all outdoor areas of public college campuses are considered public forums for members of the campus community. Gatherings are nonetheless still subject to time and location restrictions so as not to interfere with other activities and cannot be a form of harassment.

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