Freedom of Speech
The First Amendment to the United States Constitution gives students the right to express their personal religious beliefs through speech, writing, and visual or performing arts in your public university. As government entities, public universities cannot legally enforce policies that discriminate against students, faculty, or staff on the basis of their religious beliefs, practices and expression.
The First Amendment declares in part that “Congress shall make no law . . . abridging the freedom of speech. . . .”1 The Free Speech Clause limits the government’s ability to interfere with a citizen’s right to speak his mind no matter how unpopular, controversial, or disagreeable his ideas may be to others.2 This protection applies to a wide array of expressive activities including what a person may “wear, read, say, paint, perform, believe, protest, or even silently resist.”3 Speech activities include “leafleting, picketing, symbolic acts, wearing armbands, demonstrations, speeches, forums, concerts, motion pictures, stage performances, remaining silent, and so on.”4 Further, the First Amendment protects not only political speech, but also “purely emotional expression, religious expression, . . .parody, and satire.”5
The Free Speech Clause provides such expansive protection that the courts have noted only a few, narrowly drawn categories of speech that are not protected. These include “fighting words” (i.e.., close-quarter communications that would immediately provoke a fight),6 “obscenity” (i.e., depictions of hard-core sexual acts),7 child pornography,8 and words that create a “clear and present danger” (e.g., falsely shouting, “Fire!” in a crowded theater).9 All other speech is protected. A public university may not prohibit speech simply because the opinions expressed are deemed to be racist, sexist, homophobic, hateful, harassing, offensive, intimidating, controversial, provocative, indecent, or because they provoke a violent response from listeners.10 Yet many public universities still try to regulate such expression through speech codes, even though federal courts have uniformly struck down these codes as unconstitutional.
Although administrators cannot regulate speech solely based on its content or viewpoint, they do have some discretion to regulate the time, place, and manner of expression.11 That said, students enjoy expansive speech protection in the open, public areas on campus12 and in facilities that the university has made “generally open”13 to students and student groups for expressive activities. University efforts to regulate speech in these locations will almost always fail constitutional scrutiny.
