Frequently Asked Questions
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.
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 through student conduct codes and “time, place and manner” policies.
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. These include: (1) speech that promotes and incites actual, immediate and imminent violence and harm; (2) “fighting words” (i.e., words directed to a person that are so abusive that they tend to incite an immediate physical retaliation); (3) true threats (i.e., when a reasonable person would view the speech as a serious intent to harm and there is the prospect of immediate execution); (4) defamation (i.e., libel and slander); (5) obscenity; (6) severe, pervasive and objectively offensive harassment that deprives the individual of equal access to resources; (7) false advertising; and (8) use of public resources for partisan politics. But these exceptions are interpreted very narrowly; most speech will still be considered protected under the First Amendment.
What this means at SDSU is that we can restrict speech based on what people are saying only when it reasonably appears that the speaker will advocate violent (and immediate) overthrow of the government, willful destruction or seizure of campus buildings or property, disruption or impairment by force of the campus’s regularly scheduled classes or other educational function, physical harm (including coercion or intimidation) or other invasion of lawful rights of campus community (including administrators, officials, faculty and students), or other campus disorder of a violent nature.
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.
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.
How much one values 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 U.S. Supreme Court case, Justice Louis 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.”