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Free Speech

At NC State, freedom of speech and expression are essential to who we are. The open, free exchange and expression of ideas and views is critical to advancing our mission as a public university. We are an inclusive community that encourages learning, respect and and hearing differing opinions. This page contains information and resources related to how we work to create and support an environment where freedom of speech and expression thrive.

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. 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 most speech and expression — even speech that many would see as offensive or hateful.

Public universities like NC State are subject to the First Amendment. The university is “the government” and is not allowed to interfere with, retaliate against or punish speech, except in very narrow exceptions discussed below. In this context, the term “speech” is not limited to spoken words; it also includes nonverbal expression and symbolic speech, such as what a person wears, reads, performs, protests and more.

Free-speech issues can arise when individuals or groups speak what most people in our community consider hateful messages that the university cannot restrict or punish, even if the messages are in conflict with the university’s values. Free-speech rights are indivisible. Restricting the speech of one group or individual jeopardizes everyone’s right to free speech because the same laws or regulations used to silence one group — even those with offensive or hateful messages — can be used to silence important speech, including counteracting messages about diversity, inclusion and equality. In fact, free speech has enabled free thinking and ideas that have helped shape today’s society in many positive ways.

How has freedom of speech impacted history?

The First Amendment, and the Constitution’s Bill of Rights in general, was created and adopted to safeguard basic civil liberties under the law. Freedom of speech gives Americans the right to express themselves without having to worry about government interference.

Slavery abolitionists, suffragettes, labor rights leaders, civil rights leaders, antiwar protestors — all have been protected from governmental interference by the First Amendment safeguards against the suppression of speech. These individuals and movements could not have succeeded without the courts’ steadfast protection of their right to speak out and challenge widely held views, often offending people in the process. Individuals’ rights to express protected speech has been critical to creating awareness, changing views and improving our nation.

Why is freedom of speech worth protecting?

Protecting and upholding freedom of speech is critical for a free and democratic society. At the university level, protecting free speech is vital to helping NC State achieve its mission, by ensuring:

  • Value of a free and democratic society
  • Respect for individual thought, expression and decision-making
  • The expression and exposure of ideas, and the robust debates to test them
  • A true diversity of beliefs and ideals
  • Education of knowledge and progress
  • Protecting the most vulnerable in society from being silenced
  • Allowing students, faculty and staff to voice concerns about the university and the larger society

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. Historically, the U.S. Supreme Court has defined these exceptions 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 the categories below.

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 has determined that there must be a substantial likelihood of imminent illegal activity, and the speech must be directed at 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 through which 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 their 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 material may be deemed obscene (and therefore unprotected) if it 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.
  • 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.

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 those statements stand in direct opposition to NC State’s values of diversity, inclusion and mutual respect. 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 expressions 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. Symbols of hate are constitutionally protected if they’re worn or displayed before a general audience in a public place — for example, in a march, at a rally in a public park or in designated free-speech areas (without further context). The Supreme Court has ruled that the First Amendment protects symbolic expression, such as swastikas, burning crosses and peace signs because such expression is “closely akin to ‘pure speech.’” 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)), as these actions are considered symbolic expressions of disagreement with government policies.

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 burning a cross on private property or spray-painting swastikas on the library wall. In R.A.V. v. City of St. Paul (1992), for example, the Supreme Court struck down as unconstitutional a city ordinance that prohibited cross-burnings based solely on their symbolism. The court’s decision makes clear, however, that the government may prosecute cross-burners under criminal trespass and/or antiharassment laws.

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 legally prohibited from banning or punishing an invited speaker based on the content or viewpoint of their 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 legally 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 their audience, free from violence or disruption.

What can a university do to regulate speech?

Because the First Amendment protects most speech from “governmental” action, NC State is limited in what it can do in response to speech.

NC State cannot:NC State can:
Censor, prohibit, “chill” or punish protected speech (even if it’s biased, rude, mean, hateful, offensive, bigoted, wrong, immoral or deeply distressing)Address, discipline and remedy discrimination or harassment in violation of federal or state law and university policy
Enact or enforce policies that censor speech, such as:

– hate speech codes
– prohibition of microaggressions
– requiring trigger warnings
– compelling speech through mandatory civility statements or codes
Prohibit and punish violence, vandalism, criminal threats and other criminal conduct
Prohibit invited controversial speakersSpeak out about and promote the university’s own values, including integrity in the pursuit, creation, application and dissemination of knowledge; freedom of thought and expression; and respect for cultural and intellectual diversity
Deny a student organization registration because the organization limits membership to students who affirm they support the group’s goals and agree with its beliefsEducate people about the unintended effects of words, without banning or punishing words
Educate students about their individual rights
Promote principles of community and ensure that student organizations do not engage in discrimination in violation of federal or state laws and university policy

What are “time, place and manner” restrictions?

Although NC State cannot restrict or cancel 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

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. Universities commonly use content- and viewpoint-neutral restrictions on the times and modes of communication, often referred to as “time-place-manner” restrictions, 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.

What about classroom speech and university employees’ speech?

Whether these kinds of speech are protected depends on the context. Professional and/or academic environments can sometimes be regulated to a greater degree, and some civility rules can be imposed. But in public areas, robust expressive behavior must be allowed.

Isn’t academic freedom synonymous with freedom of speech?

No. “Academic Freedom” generally refers to a faculty member’s ability to teach, write or speak in the academic context within the law. Universities themselves also have academic freedom to determine matters such as course curriculum.

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 believed 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 there is 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.

NC State greatly values civility, and all members of the university community share in the responsibility for maintaining a climate of mutual respect. Concerns about civility and mutual respect are not a justification for closing discussions of ideas, however offensive or disagreeable those ideas may be. NC State cannot shield persons from ideas and opinions they find unwelcome, disagreeable or even deeply offensive. Nonetheless, we encourage all members of the university community to uphold and reflect NC State’s values.

When you hear speech that is offensive, there is something you can do: Use your own freedom of speech to make your opinion heard. The best and most effective solution is often to counter the hateful speech with more speech. The Supreme Court has stated, “[i]f there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression.”

To be clear, “more speech” does not mean shouting down or disrupting another speaker. NC State encourages active listening and dissent, and the university is committed to cultivating an educational environment to allow for the “processes of education” to support the “more speech” solution. 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.

Protests

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 police officers and university officials, such as staying behind barricades or dispersing from an area declared an unlawful assembly. 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. Occupying a building or classroom overnight in protest 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 policies and regulations related to free speech can be found on the university’s Policies, Regulations and Rules website and Student Involvement’s website. 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.

View the university’s policies on Freedom of Speech and ExpressionSolicitationUse of University Space; and Painting, Sidewalk Chalking and Use of Posters.

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 Student Centers 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 ncsufreespeech@ncsu.edu.