What is Freedom of Speech?
The free speech clause of the First Amendment states that Congress (and by extension, state actors) “shall make no law … abridging the freedom of speech”. Most universities, whether by law or policy, are subject to the constitutional restrictions set forth in the First Amendment and thus may not take action which infringes an individual’s freedom of speech under the Constitution. As an institution of higher education, Penn State is committed to the principle of free expression.
Keep in mind that not all speech is protected free speech. There are categories of speech that are not entitled to protection under the First Amendment.
What kinds of expression are not entitled to protection under the First Amendment?
Generally, the following categories of speech are not protected under the First Amendment:
- Words or expressive conduct that incite violence or illegal activity;
- Obscenity;
- True threats;
- Defamation/libel;
- Expressive activity that involves illegal conduct (e.g., vandalism, trespass, disturbance, terrorizing activity);
- Harassment based on an individual’s protected class, such as sex, race or religion that meets the legal definitions established by law.
Each of these categories (and others) have been defined and in some cases, narrowed by the courts.
When does speech amount to harassment that can be disciplined by the University?
According to University Policy AD 91, “harassment” is “behavior consisting of physical or verbal conduct that is sufficiently severe or pervasive such that it substantially interferes with an individual’s employment, education or access to University programs, activities, or opportunities and would detrimentally affect a reasonable person under the same circumstances.” See also University Policy AD 85.
Consistent with the law, the University will discipline students who commit harassment in violation of university policy as provided in the Code of Conduct and Student Conduct Procedures Manual and will discipline employees or third parties who commit harassment in violation of university policy as provided in University Policy AD 85 and AD 91.
What is “Hate Speech” and is it protected by the First Amendment?
“Hate speech” is generally thought of as expression which is intended to promote or justify hatred for a particular group of people based on traits such as their race, sex, national origin, religion, or disability.
Generally, hate speech is thought to be protected speech under the First Amendment, no matter how offensive or hurtful it may be to an individual or group of people. However, if hate speech rises to the level of speech that is not protected by the First Amendment, such as true threats or prohibited harassment, then it is no long entitled to protection by the First Amendment.
Hate crimes, which are defined by criminal law, are not the same as hate speech. In Pennsylvania, hate crimes are criminal actions which are motivated by an individual’s ill will or hatred of another’s race, color, religion, or national origin. Such actions are not protected by the First Amendment. For more information on how to report hate crimes or other bias motivated incidents, please see Penn State's Report Bias page.
What kind of regulations can a University place on protected free speech?
Simply because expressive activity is protected by the First Amendment does not mean that one can engage in expressive activity in any manner, in any place, at any time. The University may enact reasonable and viewpoint neutral time, place, and manner regulations on protected speech that takes place on campus. In limited-access or nonpublic areas of campus, the University may adopt more restrictive regulations on speech.
The University is committed to the principle of free expression and seeks to foster an environment where ideas and opinions may be expressed, heard, discussed, and challenged. In accordance with this principle, regulations on expressive activity on campus are intended to allow the free exercise of speech while also preserving the University’s three-prong mission of teaching, research, and public service. For example, under University Policy AD 51, unless the speech comes within legal exceptions that can be regulated, individuals may engage in expressive activity on the front patio of Old Main, so long as they do not impede anyone’s ability to enter and exit the building, use amplified sound during finals or study periods, prevent the University from utilizing its own space for its own events, violate the law or any other requirement of use enunciated in University policies (e.g., damaging property, littering, camping), or otherwise interfere with the University’s operations.