Frequently Asked Questions
"Academic freedom" is a concept pervasive within the higher education sector that supports the understanding that the free search for truth and its free exposition -- which includes the freedom to research and teach a range of topics, ideas and ideologies -- is a democratic right, and benefits us all. SDSU is committed to academic freedom and both encouraging and protecting artistic, scientific, literary and political speech. The American Association of University Professors provides additional information about academic freedom.
The First Amendment protects various freedoms, including freedom of speech, assembly, petition, religion and press. The speech protections apply to written and spoken words as well as expressive conduct (i.e., actions that do not involve written or spoken words but do contain a message, such as art or gestures). But these protections apply only to activities regulated by the government, and the protections are not absolute. Governments are also concerned with the security of their citizens and borders, and with equal treatment of their citizens. In analyzing the application of the First Amendment, courts will consider the various security, equality and liberty interests involved.
The First Amendment does not prohibit any speech, but there are some types of speech for which there is no, or very limited, First Amendment protection. Unprotected speech may be regulated because of its content. Such speech includes but is not limited to the classifications below:
- Incitement of Imminent Lawless Behavior: Speech advocating for the use of force or lawbreaking where it is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.
- Fighting Words: Speech that tends to incite an immediate and violent response from an average person. As an important consideration, speech can not be restricted simply because some deem it to be upsetting or hurtful, and speaking generally about a topic that others may consider controversial or offensive typically will remain protected. The fighting words exception normally does not apply to speakers addressing a crowd on campus but may apply to speakers addressing specific individuals in the immediate area, no matter the size of the crowd (i.e., words directed to a person that are so abusive that they tend to incite an immediate physical retaliation).
- True Threats: Speech meant to communicate a serious expression of an intent to commit an act of unlawful violence to an individual; speech that promotes and incites actual, immediate and imminent violence and harm (i.e., when a reasonable person would view the speech as a serious intent to harm and there is the prospect of immediate execution).
- Harassment or Discrimination: Severe, pervasive and objectively offensive harassment that deprives the individual of equal access to resources.
- Defamation: False statements of fact made about a person. In cases concerning a public official or figure, the speaker must have acted with intent in making the false statement. In certain cases, the party alleging defamation must show actual damages.
- Obscenity: Speech depicts or describes sexual conduct in a patently offensive way and lacks literary, artistic, political or scientific value.
- Child Pornography: Speech is considered child pornography when it visually depicts sexual conduct by children below a specific age. Such speech is distinct from obscenity due to the criminal nature.
- Inappropriate Use of Public Resources: Use of public resources for partisan politics.
These and other categories are interpreted very narrowly; most speech will still be considered protected under the First Amendment.
Yes. The First Amendment (and other “Bill of Rights” amendments) apply to state governmental entities through the Fourteenth Amendment, and through them to public colleges and universities like SDSU. But just as the First Amendment freedoms are not absolute as against the U.S. government, they are not absolute in the state context either. The First Amendment does not require the university to provide a platform for speech, but if it does, then it cannot discriminate against speech on the basis of the speaker’s viewpoint. In addition, SDSU can regulate conduct to minimize the impact to nearby instruction or ongoing operations through “time, place and manner” policies.
Yes and no. Students do not give up their free speech rights while in school. But the campus may, and does, impose reasonable restrictions. For example, student speech while in class may be limited, and speech in on-campus housing units may be restricted (so long as that restriction is content-neutral). Students may not engage in speech (including expressive or other conduct) that materially disrupts class work or involves substantial disorder or invasion of the rights of others, including other students.
No, freedom of speech does not give someone the right to restrict the speech of others, or to silence others with whom they disagree.
Public universities, like SDSU, are permitted to enact “Time, place and manner”, which are policies regulate the time that speech may occur (e.g., limiting amplified sound to certain hours), the place that speech may occur (e.g., prohibiting demonstrations at the entrance to campus buildings), and the manner that speech may be made (e.g., limiting where signs can be posted). Also, and in support of free and open expression, the university maintains a Freedom of Expression Policy. The policy says SDSU can create “reasonable regulations” around speech and expression.
This is the potentially unlawful suppression of particular speech due to an anticipated reaction for the audience that may be deemed hostile. Generally, action taken by the university to restrict protected speech must be based upon content-neutral factors, and the university may not prevent or stop speech based solely on how it believes the audience may or will respond. The First Amendment does, however, generally require that the university take reasonable actions to ensure a hostile crowd does not prevent speech that may be deemed controversial, hurtful or unpopular.
Freedom of Expression
Public universities and colleges are allowed to enact restriction on free speech activities as detailed in the “time, place and manner” policy so long as those restrictions meet the following criteria:
- They are viewpoint-neutral
- The university coordinates the appropriate use of a location for speech activities
- The restriction serves a significant government interest and is not more extensive than necessary
- They leave open other channels for the communication of the information.
The SDSU policy on free expression can be found online at Freedom of Expression.
The SDSU time, place and manner policy can be found online at Regulations for Use of Campus Buildings and Grounds.
These are called “time, place and manner” policies because they regulate the time that speech may occur (e.g., limiting amplified sound to certain hours), the place that speech may occur (e.g., prohibiting demonstrations at the entrance to campus buildings), and the manner that speech may be made (e.g., limiting where signs can be posted).
The SDSU time/place/manner policies ensure that speech does not unreasonably disrupt or interfere with university business, violate the legal rights of other persons, obstruct ingress or egress of campus buildings or obstruct walkways, endanger the physical safety of the campus community, unreasonably pose risk of damage to university property or campus environment, or disrupt the expressive activity of another person or group acting in compliance with university policy.
Hate Speech, Other Questions
There is no legal definition of “hate speech” and it is not a category of speech that the courts have held is an exception to the First Amendment. In fact, the courts have made it clear that no one has a constitutional right to not be offended by speech. For this reason, hate speech is as fully protected as any other form of protected speech. People, including those in the SDSU community, are as free to condemn any category of individual – whether on the basis of race, religion, national origin, ethnicity, sexual orientation, citizenship status, political party, ideology, hair style or taste in music. But remember that this applies only to speech and expressive conduct, and does not protect an individual’s conduct simply because it is motivated by that person’s beliefs. For example, hate crimes are regulated under both state and federal law.
The First Amendment is tested most severely when the person who is speaking is saying things that we find offensive or hateful, or that we disagree with. Yet that speech is also protected because when the government has the right to suppress certain ideas, everyone is subject to censorship.
The better way to respond to hateful or offensive speech is to encourage more speech that exposes the offensive speech for what it is. In one famous US Supreme Court case, Justice Brandeis wrote, “If there be time to expose through discussion the falsehoods and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.” (Whitney v. California, 1927). The ACLU agrees, and states on its website that “where racist, sexist and homophobic speech is concerned, the ACLU believes that more speech – not less – is the best revenge. This is particularly true at universities, where the mission is to facilitate learning through open debate and study, and to enlighten.”
The Supreme Court has made it clear that a public institution, like SDSU, cannot prevent speech on the grounds that it is likely to provoke a hostile response. While the campus is constitutionally required and committed to supporting the protection of individuals and to prevent disruption or violence, if despite all efforts by the university there is a serious and imminent threat to public safety and no other alternative, an event or activity can be canceled based on the threat, not on the content of speech. The university’s primary and paramount responsibility is the safety of students, faculty and staff.
The university's Principles of Community serves as an aspirational statement similar to others at universities throughout California and the nation. The statement was developed through SDSU’s shared governance process, involving input from students, faculty, staff and administrators. Importantly, this is not university policy; the statement does not carry or impose any requirement. It does, however, call on each of us to reflect on our collective values and also encourages us to uphold those values when we teach, conduct research, work, socialize and come together in dialogue around difficult topics. Read the statement on the Principles of Community page.