Free Speech and the First Amendment
What is freedom of speech, and what does it protect?
Freedom of speech is the right of a person to articulate opinions and ideas without interference, retaliation or punishment from the government. In this context, the term “speech” is not limited to spoken words; it also includes symbolic speech, such as what a person wears, reads, performs, protests and more.
Freedom of speech is strongly protected by the First Amendment of the United States Constitution, as well as many state and federal laws. The United States has some of the strongest free-speech protections in the world, and they help form the bedrock of our democracy. The First Amendment protects even speech that many would see as offensive or hateful.
Which types of speech are not protected by the First Amendment?
Broadly speaking, the First Amendment protects all types of speech, but exceptions do exist. Types of speech that are not protected by the First Amendment include the following:
- Incitements of violence or lawless action: There is no right to incite people to break the law, including to commit acts of violence. For an action to constitute incitement, the Supreme Court of the United States has determined that there must be a substantial likelihood of imminent illegal activity, and the speech must be directed to causing imminent illegal activity. For example, a speaker on campus who exhorts the audience to engage in acts of vandalism and destruction of property is not protected by the First Amendment if there is a substantial likelihood of imminent illegal activity.
- Fighting words: Speech that is personally or individually abusive and is likely to incite imminent physical retaliation.
- True threats: Statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. The speaker does not have to act on his or her words (e.g., commit a violent act) in order to communicate a true threat. For example, if a group of students yelled at a student in a menacing way that would cause the student to fear a physical assault, such speech would not be protected.
- Obscenity: 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, (2) is patently offensive by community standards and (3) lacks literary, scientific or artistic value.
- Defamation: 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.
- Harassment: Conduct based on a protected category that is so severe, pervasive and objectively offensive, and that so undermines and detracts from the victim’s educational experience, that the victim is effectively denied equal access to an institution’s resources and opportunities.
- False advertising: A knowingly untruthful or misleading statement about a product or service.
- Certain symbolic actions: But only if the actions are otherwise illegal, such as tagging, graffiti, littering or burning a cross on private property.
- Child pornography
- Interference with medical treatment: Speech that interferes with the treatment of patients.
- Invasion of privacy: An unjustifiable invasion of privacy or confidentiality not involving a matter of public concern.
- Material and substantial disruption: An action that materially and substantially disrupts the functioning of the university or that substantially interferes with the protected free expression rights of others.
Historically, the Supreme Court has defined these terms very narrowly, limiting the authority of the government and public officials to prohibit or prosecute speech, even if it appears to fall into one of these categories.
What is “hate speech”? Is it protected under the First Amendment?
The term “hate speech” is often misunderstood. Hate speech is not a separate category of speech under the law. The term refers to speech that insults or demeans a person or group of people on the basis of attributes such as race, religion, ethnic origin, sexual orientation, disability or gender. Justice William Brennan wrote in the Supreme Court’s decision in Texas v. Johnson (1989):
“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.”
More recently, Chief Justice John Roberts wrote in Snyder v. Phelps (2011):
“Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain. On the facts before us, 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.”
While NC State condemns speech of this kind, hate speech is only unprotected if it falls into one of the categories described above (e.g., “fighting words” or “true threats”). Although this may be difficult to understand or accept, even speech that is hateful or offensive is still likely protected by the First Amendment. However, just because there is a First Amendment right to say something, that 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 NC State’s values of diversity, inclusion and mutual respect. However, as a campus, we must always strive to 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.
In addition, the First Amendment does not protect actions just because they are motivated by an individual’s beliefs or opinions. Therefore, even though hate speech is protected by the First Amendment, “hate crimes” may be regulated by North Carolina and federal criminal laws.
Are nonverbal symbols, such as swastikas or burning flags, constitutionally protected?
It depends. The courts have held that burning the American flag is protected speech (Texas v. Johnson (1989)), and so is wearing armbands to protest a war (Tinker v. Des Moines Independent Community School District (1969)). However, the First Amendment does not protect the use of nonverbal symbols to directly threaten an individual or encroach upon or destroy private property. Examples might include hanging a noose above a dorm room door or spray-painting swastikas on the library wall.
Free Speech and the University Campus
How does the First Amendment right to free speech apply to speakers who have been invited by student groups to speak on campus?
As a public institution of higher education, NC State is committed to fostering free speech and the open debate of ideas. NC State is prohibited from banning or punishing an invited speaker based on the content or viewpoint of his or her speech. University policy permits student groups to invite speakers to campus, and the university provides access to certain campus venues for that purpose. NC State cannot take away that right or withdraw those resources based on the views of the invited speaker. Only under extraordinary circumstances, as described on this page, can an event featuring an invited speaker be canceled.
Once a student group has invited a speaker to campus, NC State will act reasonably to ensure that the speaker is able to safely and effectively address his or her audience, free from violence or disruption.
Although NC State cannot restrict or cancel the speech based on the content or viewpoint of the speech, the university is allowed to place certain content- and viewpoint-neutral limits on how the speech can take place. These limits can be based on the “time, place and manner” of the speech.
What are “time, place and manner” restrictions?
Courts have long recognized that public educational institutions have the right to impose certain restrictions on the use of their campuses for free-speech purposes. Content- and viewpoint-neutral restrictions on the times and modes of communication, often referred to as “time-place-manner” restrictions, are common features universities implement to ensure that they can continue to fulfill their mission while allowing free expression to occur. Simply put, this means that the “when, where and how” of free-speech activity may be reasonably regulated if such regulation (1) is scrupulously neutral (in other words, it must apply to all speech, no matter how favored or disfavored) and (2) leaves ample opportunity for speech in alternative areas or forums. The right to speak on campus is not a right to speak at any time, at any place and in any manner that a person wishes. The university can regulate where, when and how speech occurs to ensure the functioning of the campus and to achieve important goals, such as protecting public safety.
Examples of acceptable time-place-manner restrictions include permit requirements for outside speakers, notice periods, sponsorship requirements for outside speakers, limiting the duration and frequency of the speech and restricting speech during final-exam periods.
The need to consider time, place and manner regulations is the reason the university requires students to work with the administration when setting up certain events, as opposed to students scheduling and creating the events on their own without university input.
Can NC State cancel a student-sponsored event if the administration or the campus community disagrees with the speaker’s views?
No, NC State is prohibited from canceling an event based on the viewpoint of the speaker.
If it is known that an event with a speaker may lead to physical violence, is that legal grounds for the university to cancel the event?
In general, NC State cannot prevent speech on the grounds that it is likely to provoke a hostile response. Stopping speech before it occurs due to the potential reaction to the speech is often referred to by courts as the “heckler’s veto” and is a form of “prior restraint.” Prior restraints of speech are almost never allowed.
The university is required to do what it can to protect speakers and prevent disruption or violence. Although the university is committed to fulfilling these obligations, if despite all efforts by the university there is a serious threat to public safety and no other alternative, an event can be canceled. NC State’s primary concern is to protect the safety of its students, faculty and staff. NC State’s Police Department makes security assessments with input from federal, state and local law enforcement agencies.
How does NC State respond to hate speech?
NC 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. The university vigorously opposes and denounces all forms of hateful speech. 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 for Institutional Equity and Diversity (OIED), or to make a report to the university’s Bias Impact Response Team (BIRT). More information about responding to acts of intolerance may be found at the OIED and BIRT websites.
How does NC State ensure the safety of the campus community in light of freedom of speech?
NC State balances its commitment to free speech with a commitment to safety. Individuals who threaten or commit acts of violence or other violations of law may be subject to arrest and prosecution by law enforcement, as well as disciplinary sanctions imposed by the university.
If someone is holding an event on campus, can I protest it?
Yes. A part of free speech and expression is the right to engage in peaceful, nonviolent protest. The university expects all who engage in protest activity to do so peacefully and safely. Below are some reminders for how to protest safely:
- Avoid activity that infringes on the rights of others, such as blocking or preventing the movement or access of others.
- Follow the instructions of a police officer or university officials, such as staying behind barricades, dispersing from an area declared an unlawful assembly and not resisting arrest. It is against the law to disobey a lawful order by a police officer, and it is a violation of university policy to disobey a direction from a university official.
- Leave the area where others are engaging in illegal activities and acts of violence. Your presence may be interpreted as participating in a riot or illegal group action. Staying overnight in a campus building after hours is prohibited.
- Refrain from inciting others to commit acts of violence such as pushing, kicking or spitting on others, destruction of property or other unlawful actions.
- Make informed decisions. If you choose to engage in civil disobedience and get arrested, know the potential consequences.
Can people who oppose a speaker’s message use their own freedom of speech to shout down that speaker’s message?
No. Freedom of speech does not give you permission to silence the speech of others by shouting, heckling or otherwise disrupting a speech to the point that the speaker cannot continue or that the audience can no longer listen. The free-speech rights of the speaker would be violated if the audience could silence anyone with whom they disagreed. If you were allowed to shout down speech you disagreed with, then open and free debate would be impossible. Intentionally disrupting a speaker may result in disciplinary sanctions or even criminal charges against the disruptive individual.
NC State's Policies Related to Free Speech and Reserving Space on Campus
Where can I review NC State’s policies and regulations related to free speech?
NC State’s polices and regulations related to free speech can be found on the university’s Policies, Regulations and Rules website, Student Involvement’s website and the “Additional Resources” section of this page. NC State’s policies and regulations are designed to be consistent with the university’s requirements under the law and to balance the university’s commitments to free speech with the safety and well-being of faculty, staff and students, and their invited guests.
I want to hold an event on NC State’s campus. Whom should I contact?
You should contact the responsible administrator to request the use of the space. A list of spaces that can be reserved and the administrator responsible for each space can be found on the Rave! Events and Student Involvement websites. Requests to reserve space must be submitted electronically to the responsible administrator. Please review the regulation governing Use of University Space for more information.
Note: Groups and individuals not affiliated with the university must be sponsored by a university group, student group or student in order to use space on NC State’s campus. A fee may be charged for the use of university space and any related security costs.
Which NC State offices are responsible for ensuring compliance with the UNC System’s policy on free speech and free expression?
The Office of the Executive Vice Chancellor and Provost, the Division of Academic and Student Affairs, and the Office of General Counsel are the offices responsible for ensuring compliance with this policy and its related regulations. Questions about free speech and free expression at NC State may be directed to email@example.com.
Freedom of Speech and Expression: https://policies.ncsu.edu/policy/pol-04-25-01/
Use of University Space: https://policies.ncsu.edu/regulation/reg-11-55-02/
Painting, Sidewalk Chalking and Use of Posters: https://policies.ncsu.edu/regulation/reg-11-55-04/
Code of Student Conduct: https://policies.ncsu.edu/policy/pol-11-35-01/
Free Speech and Free Expression Within the University of North Carolina: https://www.northcarolina.edu/apps/policy/index.php?pg=vs&id=19766&added=1
14-3, Punishment of misdemeanors, infamous offenses, offenses committed in secrecy and malice, or with deceit and intent to defraud, or with ethnic animosity: https://www.ncleg.net/EnactedLegislation/Statutes/HTML/BySection/Chapter_14/GS_14-3.html
14-277.1, Communicating threats: https://www.ncleg.net/EnactedLegislation/Statutes/HTML/BySection/Chapter_14/GS_14-277.1.html
14-288.2, Riot; inciting to riot; punishments: https://www.ncleg.net/EnactedLegislation/Statutes/HTML/BySection/Chapter_14/GS_14-288.2.html
14-288.4, Disorderly conduct: https://www.ncleg.net/EnactedLegislation/Statutes/HTML/BySection/Chapter_14/GS_14-288.4.html
14-288.5, Failure to disperse when commanded: https://www.ncleg.net/EnactedLegislation/Statutes/HTML/BySection/Chapter_14/GS_14-288.5.html
14-401.14, Ethnic intimidation; teaching any technique to be used for ethnic intimidation: https://www.ncleg.net/EnactedLegislation/Statutes/HTML/BySection/Chapter_14/GS_14-401.14.html
116-212, Campus of state-supported institution of higher education subject to curfew: https://www.ncleg.net/EnactedLegislation/Statutes/HTML/BySection/Chapter_116/GS_116-212.html
143-318.17, Disruptions of official meetings: https://www.ncleg.net/EnactedLegislation/Statutes/HTML/BySection/Chapter_143/GS_143-318.17.html
Student Involvement: https://studentinvolvement.dasa.ncsu.edu/
Rave! Events: https://campusenterprises.ncsu.edu/rave-events/
Office of Institutional Equity and Diversity: https://oied.ncsu.edu/divweb/
Bias Impact Response Team: https://bias-incident.ncsu.edu/
Office of Student Conduct: https://studentconduct.dasa.ncsu.edu/
Counseling Center: https://counseling.dasa.ncsu.edu/
University Police Department: https://police.ehps.ncsu.edu/
Student Ombuds Services: https://ombuds.dasa.ncsu.edu/
Faculty and Staff Ombuds: https://facultyombuds.ncsu.edu/
Chancellor’s Messages: https://leadership.ncsu.edu/chancellor/messages/
UNC-Chapel Hill First Amendment Law Review: https://falrunc.wordpress.com/about/
American Civil Liberties Union “Speech on Campus” resource page: https://www.aclu.org/other/speech-campus?redirect=free-speech/hate-speech-campus
UNC-Chapel Hill School of Government web content concerning freedom of speech: https://www.sog.unc.edu/search/#!/search/free%20speech