What is Freedom of Speech?
The First Amendment of the U.S. Constitution states, “Congress [i.e., the government, and by extension, employees of the state including public institutions such as ISU] shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Freedom of speech is the right of a person to articulate opinions and ideas without interference, retaliation or punishment from the government. The term “speech” is interpreted broadly and includes spoken and written words as well as symbolic speech (e.g., what a person wears, reads, performs, protests, and more). The First Amendment protects speech even when the ideas put forth are thought by some or even by the majority of individuals to be illogical, offensive, immoral, or hateful. Indeed, in Texas v. Johnson (1989), the Supreme Court stated, “If there is a bedrock principle underlying the First Amendment, it is that government may not prohibit the expression of an idea simply because it finds it offensive or disagreeable.” Public universities such as Iowa State are subject to the constitutional restrictions set forth in the First Amendment, both in state / federal law, and so may not take action infringing on an individual’s freedom of speech.
Freedom of speech and a commitment to vigorous debate and open inquiry does not mean that individuals may say whatever they wish, wherever they wish. The university may restrict speech that falsely defames a specific individual; that constitutes a genuine threat or harassment; that is intended and likely to provoke imminent unlawful action, or that otherwise violates the law. In addition, the university may reasonably regulate the time, place, and manner of speech to ensure that it does not disrupt the ordinary activities of the university. The exceptions have been interpreted narrowly by the Supreme Court and other state and federal courts.
Some content adapted from: https://www.ncsu.edu/free-speech/.
The First Amendment
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” - United States Constitution
The First Amendment to the U.S. Constitution protects the freedom of speech, religion and the press. It also protects the freedom to peacefully assemble or gather together or associate with a group of people for social, economic, political or religious purposes, as well as the right to protest the government. The amendment was adopted in 1791 along with nine other amendments that make up the Bill of Rights – a written document protecting civil liberties under U.S. law.
The First Amendment played a significant role in the Civil Rights movement, as the movement drew upon several First Amendment freedoms — primarily speech, assembly and petition — to protest racial injustice and promote racial equality. In addition, the U.S. Supreme Court strengthened these First Amendment freedoms through its rulings in court cases arising out of the civil rights movement. For example, in NAACP v. Alabama (1958), the Supreme Court recognized the right of association within the First Amendment and protected membership lists against state investigation. In Garner v. Louisiana (1961), the Supreme Court overturned the disturbing-the-peace convictions of five civil rights protestors who engaged in sit-ins. And in Edwards v. South Carolina (1963), the Supreme Court struck down the breach-of-the-peace convictions of over one hundred students who had marched to the South Carolina statehouse, protesting segregation and carrying signs with such messages as “Down with Segregation.” The Court stated that the government of South Carolina could not criminalize “the peaceful expression of unpopular views.”
Some content adapted from the History website: https://www.history.com/topics/united-states-constitution/first-amendment (accessed November 22, 2019).
Which types of speech are not protected by the First Amendment?
Types of speech that are not protected by the First Amendment include the following:
The First Amendment does not protect speech that incites people to break the law, including to commit acts of violence. In Brandenburg v. Ohio, the Supreme Court ruled that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” In Hess v. Indiana, the Supreme Court clarified what constitutes unprotected incitement speech noting that the speech must be directed at a specific person or group and there must be evidence, or a rational inference from the import of the language, that the speaker’s words were intended to produce, and likely to produce, imminent disorder.
The Supreme Court first identified the so-called “fighting-words” exception to the First Amendment in 1942. Over the ensuing decades the Court has limited the fighting words doctrine. Generally, unprotected fights words are words that by their very utterance inflict injury and tend to incite an immediate breach of the peace. There is no list of “fighting words” instead, courts examine the totality of the circumstances and decline to protect clear and directed insults intended to start a fight or lawlessness. Speech can still be protected if it is angry or profane and laws prohibiting fighting words must be very narrowly tailored.
In its most recent case examining “true threats”, the Supreme Court defined unprotected true threats to encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence against a particular individual or group of individuals. The speaker need not actually intend to carry out the threat but the speaker must have spoken with “the intent of placing the victim in fear of bodily harm or death.” In United States v. Dinwiddie, the federal Eighth Circuit Court of Appeals applied a five-factor test to determine whether speech constitutes a true threat, including: (i) the reaction of the recipient of the threat and of other listeners; (ii) whether the threat was conditional; (iii) whether the threat was communicated directly to its victim; (iv) whether the maker of the threat had made similar statements to the victim in the past; and (v) whether the victim had reason to believe that the maker of the threat had a propensity to engage in violence.
The Supreme Court has struggled to define unprotected “obscenity” for decades. In Jacobellis v. Ohio the Supreme Court noted that in attempting to identify obscenity, the Court “was faced with the task of trying to define what may be indefinable.” After attempting to approach the issue on a case-by-case basis, the Supreme Court established “basic guidelines” in Miller v. California. Speech or materials may be deemed obscene (and therefore unprotected) if the speech meets the following (extremely high) threshold: It (1) appeals to the “prurient” interest in sex (defined as a morbid, degrading and unhealthy interest in sex, as distinguished from a mere candid interest in sex), (2) is patently offensive by community standards / applicable state law and (3) lacks literary, artistic, political, or scientific value.
An intentional and false statement about an individual that is publicly communicated in written (called “libel”) or spoken (called “slander”) form, causing injury to the individual. To be defamatory, a statement must be an assertion of fact (rather than mere opinion) and capable of being proven false. In addition to being false, the statement, to be defamatory, must identify its victim by naming or reasonably implicating the person allegedly defamed. The Supreme Court has strove to balance the interests of a free press with the privacy and dignity of others. As a person becomes more well-known or takes official positions in the government, the Court has afforded them less protections.
The Supreme Court in Davis v. Monroe County defined unprotected harassment as unwelcome conduct based on an individual’s protected status or perceived protected status that is sufficiently severe, persistent, and pervasive to unreasonably interfere with that individual’s educational (or employment) environment, thereby creating an environment that a reasonable person in similar circumstances and with similar identities would find hostile, intimidating, or abusive. In determining whether an environment is sufficiently hostile, intimidating, or abusive to constitute prohibited harassment, courts generally consider the totality of the circumstances including the frequency of the discriminatory conduct, the severity of the conduct, whether the conduct is physically threatening and whether the conduct unreasonably interferes with an individual’s educational/employment performance. Typically, courts find a hostile environment is created when a series of serious incidents based on prohibited animus occurs within a defined period of time and no remedial action is taken to prevent or remediate the conduct. The more severe the conduct, the less need there is to show a repetitive series of incidents to show a hostile environment, particularly if the conduct is physical.
In Tinker v. Des Moines Independent Community School District, the Supreme Court recognized that conduct that creates or reasonably threatens to create a material and substantial disruption to the functioning of a school is not protected under the First Amendment. Courts have applied this standard on a case-by-case basis closely analyzing the specific context of the speech.
Historically, the Supreme Court has narrowly defined speech that is not protected under the First Amendment, thereby limiting the authority of the government and public officials to prohibit or prosecute speech, even if it is unpopular or deeply offends many people.
Content adapted from: https://constitutionallawreporter.com/amendment-01/freedom-speech/defamation/, https://constitutionallawreporter.com/amendment-01/freedom-speech/unprotected-speech/, https://fas.org/sgp/crs/misc/IF11072.pdf, https://www.thefire.org/get-involved/student-network/learn-more-about-your-rights/unprotected-speech/
What is “hate speech”? Is it protected under the First Amendment?
The term “hate speech” is often misunderstood. “Hate speech” doesn’t have a legal definition under U.S. law, just as there is no legal definition for lewd speech, rude speech, unpatriotic speech, or other similar types of speech or expression that people might condemn. The term often refers to speech or expression that the listener believes denigrates, vilifies, humiliates, or demeans a person or persons on the basis of membership or perceived membership in a social group identified by attributes such as race, ethnicity, gender, sexual orientation, religion, or other protected status. Speech identified as hate speech may involve epithets and slurs, statements that promote malicious stereotypes, and speech denigrating or vilifying specific groups. Hate speech may also include nonverbal depictions and symbols.
In the United States, hate speech receives substantial protection under the First Amendment, based upon the idea that it is not the proper role of the government to attempt to shield individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive. Instead, the government’s role is to broadly protect individuals’ freedom of speech in an effort to allow for the expression of unpopular and countervailing opinion and encourage robust debate on matters of public concern even when such debate devolves into offensive or hateful speech that causes others to feel grief, anger, or fear.
While Iowa State University greatly values inclusion, and mutual respect, and encourages community members to observe the Principles of Community when engaging with each other, hate speech may only be prohibited and punished if it falls into one or more of the categories of unprotected speech described previously (e.g., “harassment” or “true threats”).
However, it goes without saying that just because there is a First Amendment right to say something, doesn’t mean it should be said. The First Amendment protects a right to say hateful things, often even when they stand in direct opposition to Iowa State’s values of diversity, inclusion and mutual respect, and the Principles of Community. However, as a campus, we can all work together to promote and ensure an environment where all students, faculty and staff are welcomed, respected and supported, and where members of this community are tolerant of the ideas and expression of others. The university maintains its own First Amendment rights and actively condemns acts of hate. Indeed, as an educational institution, the university plays a critical role in educating our community members so that they can effectively counter hate, racism, and bigotry.
The First Amendment does not protect illegal conduct just because that conduct is motivated by an individual’s beliefs or opinions. Therefore, even though hate speech is protected by the First Amendment, illegal conduct motivated by an individual’s hate for a particular protected group may be regulated by local, state, or federal law, and / or university policies. These laws are sometimes identified as “hate crimes.”
Iowa State is dedicated to fostering free speech in an environment where members of our community can learn from one another and where all are treated with dignity and respect. Bigoted messages and conduct are inconsistent with ISU’s Principles of Community, and the values we expect on our campus. The university encourages faculty, staff and students to use their free-speech rights, consistent with federal and state laws, to condemn hateful speech and to help create opportunities for the campus community to understand and learn from these actions. Students who encounter hurtful or offensive speech are encouraged to reach out to university administrators, including the Office of Equal Opportunity, to make a report.
Speech on the Internet/Social Media
This issue was first considered in the Supreme Court case Reno v. ACLU, where the Supreme Court concluded that the internet should be given the same full protection as print media of the First Amendment. While the University can control the content on its official and sponsored websites, it cannot regulate the content posted on unaffiliated sites, including personal or group Facebook pages, or Twitter, Instagram, or Snap Chat postings, any more than it can regulate direct speech. Universities are not permitted to censor content, nor can they punish someone who posts an offensive message. Free speech exists even online. However, it is important to note that in general, websites like Twitter, Facebook, Reddit, and others may make banning decisions based on individually posted content that are in the best interest of their company, or due to general disagreements with the political bent of the posters.
More information on Free Expression on Social Media: https://www.freedomforuminstitute.org/first-amendment-center/primers/free-expression-on-social-media/
Academic freedom is foundational to higher education because it encourages and guarantees the right to inquiry, discourse, and learning that characterize a community of scholars. Iowa State supports full freedom, within the law, of expressions in teaching, investigation in research, and dissemination of results through presentation, performance, and publication. When faculty are engaged in scholarly discourse they may not be disciplined for discussion or presentation of material, ideas and topics that are germane to the scholarly subject matter. In order to be germane, the material presented must be both relevant to the scholarly subject matter and must be presented by appropriate means. Faculty must remember that students may be constrained in their freedom of choice of classes and in continuation in classes.
Accordingly, teaching methods that target individual students in an unfair way so as to prevent them from full participation in a course will not be regarded as appropriate.
More information on Academic Freedom may be found in Board of Regent policy at https://www.iowaregents.edu/plans-and-policies/board-policy-manual/39-academic-freedom.
Employees and Free Speech
University employees (including faculty and staff, as well as student employees in the context of their employment) do not give up their free speech rights as citizens by virtue of being public employees. However, the University does have the right to restrict speech within or that affects the workplace.
Generally, there is a three-step test for determining whether an employee’s speech is protected. At step 1, the employer asks whether the speech was made pursuant to an employee’s official duties. If the answer to this question is “yes,” then the employer has an interest in that speech, and may regulate the speech. If the answer to this question is “no,” then the analysis proceeds to the second step. At step 2, the employer asks whether the speech was on a matter of public concern (e.g. wider political or social issues and not strictly a personal issue). If the answer is “no” (e.g., a personal workplace critique), then it is not protected speech. If the answer is “yes,” then the analysis moves to the third and final step. At step 3, there is a balancing of interests, weighing the interests of the employee in speaking against the employer’s interest in an efficient and effective workplace. If the employer’s interests outweigh the employee’s interests, then it is proper for the employer to act to protect its interests, including regulating the speech or disciplining the employee for disrupting those interests. Speech related to academic scholarship or classroom instruction might implicate additional interests such as academic freedom.
More information on faculty and staff free speech: https://www.cupahr.org/hew/files/Faculty-Staff-Free-Speech.pdf [PDF]