First Amendment and the Freedom of Speech: Rights and Responsibilities

The First Amendment to the United States Constitution states as follows: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

It is frequently invoked to support legal protection for the freedom of speech, but the First Amendment safeguards several other rights too. It shields the freedom of religion, and it prohibits the establishment of a national religion. It protects the media’s ability to report to the public. It shelters the right to assembly and the related freedom of association. Finally, the First Amendment ensures that we can bring our concerns to the government’s attention via the right to petition.

Although the First Amendment refers specifically to protecting these rights from being violated by Congress, they are also protected from infringement by other branches of the federal government. Since 1925, these rights are also incorporated, meaning that they cannot be violated by state or local governments.

The United States Supreme Court has long held that the First Amendment’s freedom of speech fully applies to public universities. In Healy v. James (1972), the Supreme Court declared that “the precedents of this Court leave no room for the view that…First Amendment protections should apply with less force on college campuses than in the community at large.” The Supreme Court proclaimed in Healy that “[t]he college classroom with its surrounding environs is peculiarly the ‘marketplace of ideas.’” In fact, all educational institutions that receive federal funds are required annually to educate students of their constitutional rights and the legal framework that guarantees those rights.

On a large and diverse university campus, it is inevitable that you will encounter ideas with which you disagree or that you find offensive. However, as explained in the Chicago Statement, a university has a “commitment to free, robust, and uninhibited debate and deliberation among all members of the University’s community.” Disagreement during discussion is often a productive part of the learning process.

Civil discussions are often the most constructive ones, and the university promotes civility in its classroom activities and planned events. However, uncivil expression receives a level of protection under the First Amendment as well, and public universities must tolerate this type of speech. Otherwise, calls for civility may be used to censor certain ideas, a precedent that would significantly endanger non-majority viewpoints and stifle intellectual candor. As the Supreme Court reasoned in Terminiello v. Chicago (1949), “a function of free speech under our system of government is to invite dispute.”

The university has long opened its doors to public speakers espousing many perspectives on a wide variety of topics. Doing this provides students and others with additional opportunities to learn different perspectives. A person on campus simply expressing a view does not mean the university agrees with that viewpoint, nor should it be understood that individual students, staff, or faculty members agree with that viewpoint. Since the First Amendment limits the university’s ability to restrict the freedom of speech, even offensive or hateful views receive constitutional protection.

Officially recognized student organizations (RSOs) have the right to invite speakers to campus, subject to the policies announced in the Student Organization Handbook. Per the United States Supreme Court’s decision in Board of Regents v. Southworth (2000), student segregated fee committees that allocate funds to RSOs must do so without regard to the viewpoints espoused by the organization. The First Amendment prohibits a public university from cancelling an event or punishing the sponsoring organization based on the views expressed by an invited speaker. Only in very rare cases may the university cancel an invited speaker event. If a student organization invites a speaker to campus, the university is required to take reasonable precautions to ensure that the event takes place safely, without undue interference or violence.

The United States Supreme Court has emphasized the importance of social media for the free exchange of ideas, proclaiming in Packingham v. North Carolina (2017) that, “[w]hile in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace—the vast democratic forums of the Internet in general, and social media in particular.”

Nevertheless, social media companies are private entities, and according to current Supreme Court precedent, social media companies have agency to decide what expression is permitted on their websites. As explained by the Supreme Court in Manhattan Community Access Corp. v. Halleck (2019), “the Free Speech Clause prohibits only governmental abridgment of speech. The Free Speech Clause does not prohibit private abridgment of speech.” Although this could be reinterpreted by the Supreme Court, at present social media companies are not bound by the First Amendment like a public university is. Thus, you will want to take notice of the terms of service and related policies if you open a social media account to see what expression is permitted on that social media website.

Additionally, if you engage in expression on social media that is unprotected by the First Amendment (e.g., harassment, true threats, incitement to imminent lawless action), you could face disciplinary action from the university. However, public educational institutions cannot punish students’ protected speech on social media, even if some people find it offensive.

Even though the First Amendment uses the word “speech,” the United States Supreme Court has held that it protects a wide variety of expression. This includes what is known as “pure speech,” meaning the spoken word. The First Amendment also protects expression that is written and expression that is typed and published. It protects symbolic speech or expressive conduct (like burning a flag), and it protects speech plus conduct (like peaceably assembling to engage in protests and boycotts).

There are also a limited number of narrow exceptions to what the First Amendment protects. This includes situations where immediate violence is provoked, someone is unduly intimidated, or falsehoods are spread about someone else. They include the following categories:

• Incitement to imminent lawless action
• Harassment
• True threats
• Defamation
• Obscenity and child pornography
• Fighting words
• Non-expressive conduct

Since public universities are bound by the First Amendment, they may not suspend, expel, or otherwise punish students who use offensive speech that is protected by the Constitution. In fact, the United States Supreme Court stated in Tinker v. Des Moines (1969) that for a public educational institution “to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.”

The Supreme Court affirmed this position more recently in Mahanoy v. B.L. (2021), declaring that public educational institutions have “an interest in protecting a student’s unpopular expression, especially when the expression takes place off campus.” This includes online expression that occurs off campus. The Supreme Court reasoned that educational institutions have a role in facilitating the free exchange of ideas, which shapes public opinion and informs public officials about the will of the people.

There have been instances in United States history where the government has attempted to ban speech where people advocated for societal change. In some past cases, the United States Supreme Court upheld punishment of expression that advocated for change, especially if the speaker called for a revolution or other forms of illegality.

Much broader protection exists for the freedom of expression today. Using speech to incite others to commit immediate acts violence is not protected by the First Amendment, but this category of unprotected speech is very narrow. In Brandenburg v. Ohio (1969), the United States Supreme Court held that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Subsequent Supreme Court cases have clarified that speech advocating illegal action at some indefinite future time is protected by the First Amendment, if it does not constitute criminal conspiracy. These rulings ensure that people can advocate for different forms of societal change, free from government reprisals.

Discriminatory harassment is not protected by the First Amendment. As explained by the University of Wisconsin Board of Regents policy document on Discrimination, Harassment, and Retaliation, discriminatory harassment is “unwelcome verbal, written, graphic or physical conduct that: is directed at an individual or group of individuals on the basis of the individual or group of individuals’ actual or perceived protected status…and is sufficiently severe or pervasive so as to interfere with an individual’s employment, education or academic environment or participation in institution programs or activities and creates a working, learning, or living environment that a reasonable person would find intimidating, offensive or hostile.” This includes harassment “on the basis of race, color, creed, religion, age, sex, sexual orientation, gender identity or expression, national origin, ancestry, disability, pregnancy, marital or parental status, or any other category protected by law, including physical condition or developmental disability.”

Discriminatory harassment, like incitement, is a narrowly drawn category of unprotected speech. It typically requires repeated activity, as one incident involving speech without conduct is unlikely to constitute discriminatory harassment. As explained by the United States Department of Education, discriminatory harassment “must include something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive.”

A true threat is not protected by the First Amendment. The United States Supreme Court defined true threats in Virginia v. Black (2003) as “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.” According to the Supreme Court, true threats include when a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.

This definition means that expression that may seem threatening may be protected, as only true threats where the speaker expresses intent to explicitly cause immediate harm are prohibited. An example of seemingly threatening expression that was protected occurred in Watts v. United States (1969), where the Supreme Court overturned Watts’s conviction for stating at an anti-war rally that, “I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.” The Supreme Court ruled that Watts’s language was not a true threat on the life of President Lyndon B. Johnson (L.B.J.), as Watts’s rhetoric was simply “political hyperbole.”

Defamation occurs if you make a false statement of fact about someone else that harms that person’s reputation. Such speech is not protected by the First Amendment and could result in either criminal or civil liability. Defamation is limited in multiple respects though.

If you make a false statement of fact about a public official or a public figure, more First Amendment protection applies to ensure that people are not afraid to talk about public issues. According to New York Times v. Sullivan (1964), defamation against public officials or public figures also requires that the party making the statement used “actual malice,” meaning the false statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not.”

Parodies and satire are protected by the First Amendment (and are not defamatory). Parodies and satire are meant to humorously poke fun at someone or something, not report believable facts.

Obviously, there are very good reasons that we should be truthful and why we should encourage others to tell the truth. There are also situations where you can be constitutionally punished for lying. For instance, lying under oath in court is perjury, which is a criminal offense. Knowingly giving false information to police constitutes obstruction, which is another criminal offense that is not protected by the First Amendment. There is no right to make false statements about yourself to defraud others or to secure employment.

That having been said, false statements of facts about yourself receive constitutional protection in certain situations, including when you are engaging in casual conversation with others. This is true because the United States Supreme Court reasoned in United States v. Alvarez (2012) that “some false statements are inevitable if there is to be an open and vigorous expression of views in public and private conversation, expression the First Amendment seeks to guarantee.”

Speech about sex and sexuality receives protection under the First Amendment, and this protection extends to many forms of pornography. However, certain types of sexually explicit expression are not protected.

Obscenity is not protected by the First Amendment. Obscenity is a narrow category of unprotected expression that meets all of the following criteria: (a) the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (b) the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

The government can also restrict minors’ access to pornography, and criminal statutes that prohibit adults from exposing minors to pornography have been ruled constitutional. Additionally, child pornography is not protected by the First Amendment.

Sexual harassment, discussed above, is a separate category that is outside of First Amendment protection.

The United States Supreme Court ruled in Chaplinsky v. New Hampshire (1942) that fighting words are not protected by the First Amendment. Fighting words are defined as words “which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” As the Supreme Court explained in Chaplinsky, “[s]uch utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”

However, the Supreme Court has significantly narrowed the definition of fighting words in recent years and has not upheld a fighting words conviction for several decades. Even if speech is offensive, it is not fighting words if it is not directed to someone face-to-face. There is a question about the continuing validity of the fighting words doctrine at the Supreme Court, although lower courts have sustained some fighting words convictions in recent years.

Expressive conduct, sometimes called symbolic speech, includes non-verbal activities that convey ideas. For instance, the United States Supreme Court has found protection for wearing an armband with a peace symbol printed on it and for burning the United States flag. Such activities are sufficiently imbued with elements of communication to receive First Amendment protection. Under the same reasoning, protests and boycotts receive constitutional protection.

However, non-expressive conduct receives no First Amendment protection. The Supreme Court has ruled, for instance, that a physical assault of another person is not expressive conduct. Similarly, there is no constitutional protection for protestors who engage in property damage, trespassing, or blocking entrances to buildings.

Hate speech is not a formally recognized category of speech in United States constitutional law. One common definition of hate speech is “any form of expression through which speakers intend to vilify, humiliate, or incite hatred against a group or a class of persons on the basis of race, religion, skin color, sexual identity, gender identity, ethnicity, disability, or national origin.” Courts have ruled that restrictions on hate speech would conflict with the First Amendment’s protection of the freedom of expression. Since public universities are bound by the First Amendment, public universities must adhere to these rulings. However, universities also have an obligation to create a safe, inclusive learning environment for all members of the campus community.

With these considerations in mind, courts in the United States have found that expression generally cannot be punished based on its content or viewpoint. Thus, although hate speech, alone, receives constitutional protection, any expression that constitutes a true threat, incitement to imminent lawless action, discriminatory harassment, or defamation can be punished by the government for those reasons, as long as the government does not discriminate on the basis of the content or viewpoint being expressed.

The government is permitted to regulate the time, place, and manner of speech and assembly. For instance, the government may restrict a protest march in a residential neighborhood at 2:00 a.m. in ways it could not restrict the same protest march through a public park at 2:00 p.m.

In traditional public forums, such as parks and public sidewalks, there are strong protections for the freedoms of expression and assembly, as such locations “have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Hague v. CIO (1939).

There are limits on the government’s ability to impose restrictions based on content or viewpoint. Even if a regulation is content- or viewpoint-neutral, it can be imposed only if: the government is pursuing an important interest; the restrictions are narrowly tailored; and the restrictions leave open ample alternative channels for communication. More information on campus time, place, and manner rules as they apply to protests can be found here.

In the United States Supreme Court’s foundational case for student speech rights at public universities, Healy v. James (1972), the justices agreed that strong free speech protection exist for students. However, the Court also proclaimed: “In the context of the special characteristics of the school environment, the power of the government to prohibit lawless action is not limited to acts of a criminal nature. Also prohibited are actions which materially and substantially disrupt the work and discipline of the school.”

Similar to the time, place, and manner regulations discussed above, this means that universities can, especially if acting in a viewpoint- and content-neutral manner, impose restrictions on speech to ensure that there is not a material and substantial disruption to classes, programs, and activities on campus. Thus, although a group of students may generally gather on the campus mall to hold a protest, engaging in some types of protest in a classroom during a class or an invited lecture may constitute a material and substantial disruption if they interfere with a class or an invited lecture, thereby going beyond the protection of the First Amendment. The First Amendment protects your right to hold your own event or protest, not to materially and substantially disrupt someone else’s speech.

The University of Wisconsin-Eau Claire has established bulletin boards on campus, creating in them a limited type of public forum for expression. Limited (or designated) public forums are created at the government’s discretion. Once such a forum is opened, for the government to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling interest and that it is narrowly drawn to achieve that end. Similar to the rules for traditional public forums, the government may impose content-neutral regulations in limited public forums if they are narrowly tailored to serve a significant government interest and leave open ample alternative channels of communication.

The rules that the University of Wisconsin-Eau Claire has created for campus bulletin boards can be found here. As is the case with invited speakers, the fact that a poster is on a university bulletin board does not signify that the university or any individual student, staff, or faculty member agrees with the message expressed on that poster.

Similar to posting fliers on campus bulletin boards, expression through the use of chalking on campus sidewalks is protected within reasonable regulations. Conditions imposed on campus sidewalk chalking are put in place to ensure that permanent damage is not caused to the sidewalks and to ensure the eventual removal of chalk through the weathering process. Those conditions are located here.

The United States Supreme Court in Snyder v. Phelps (2011) explained both the potential impact of speech and why it is important to protect even speech that causes distress: “Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and…inflict great pain. …[W]e 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.”

Thus, expression receives a great deal of protection under the First Amendment to ensure that we can freely discuss all ideas. This is designed to help us make better decisions as a society, search for truth, and seek personal fulfillment. Conversely, if censorship of speech was permitted based on one listener experiencing discomfort, government entities could suppress quantifiably factual information.

As the Supreme Court also noted in Snyder, speech can adversely affect those who hear it. As a member of a university community, it is your responsibility to consider how your speech affects others, as your words could have positive or negative effects on those around you.

As noted above, speech protected from government punishment might be subject to sanctions from other private actors, such as when social media companies suspend or lock a user’s account for violating terms of service or other policies. Your right to protest in a traditional public forum like a public park or sidewalk does not extend to private property, such as in a restaurant, movie theater, or grocery store; private businesses typically are not considered state actors, so they are not bound by the requirements of the First Amendment.

In addition, your speech could result in others responding to you in undesirable ways. Other people’s First Amendment rights include the right to disagree with your speech or to choose to disassociate with you if you engage in expression that they find disagreeable. Future employers might factor your speech on social media into hiring decisions when you apply to work for them. Thus, it is in your self-interest to engage in your expression responsibly, considering what possible consequences you could face in the short and long term. Put another way, you may want to think twice before speaking or posting.

If someone is using expression you find offensive or disagreeable, know that you have First Amendment rights to respond and express your own thoughts. In each case, though, it is your choice to decide if it is worth your time and effort to debate or discuss with someone else. If someone engages in expression you do not like, you typically also have the option of leaving the location where that speech is occurring. As explained once by the United States Supreme Court, people can often “effectively avoid further bombardment of their sensibilities simply by averting their eyes” and ears. Furthermore, the First Amendment protects your right to protest and your right to petition the government.

As noted above, select, narrowly defined categories of expression are not protected by the First Amendment. If someone is engaging in such activity, the situation may be unsafe. In an emergency, call 911. If you believe you have been the victim of a bias-motivated incident or crime, or if you believe you have witnessed a bias-motivated incident or crime, you can contact the University of Wisconsin-Eau Claire Police or submit a bias incident report that will be reviewed by the Bias Incident Report Team (BIRT). BIRT is designed to ensure the safety and support of persons affected by bias. BIRT gives due consideration to the protection of First Amendment rights.

As the sections above have hopefully shown, the freedom of expression is an exceptionally important right in our society. As the United States Supreme Court stated in Cohen v. California (1971), “[t]he constitutional right of free expression is powerful medicine in a society as diverse and populous as ours. It is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us.” The freedom of expression can be a great equalizer, ensuring that each one of us can be a part of the conversations that shape our society.

The Supreme Court has explained that even though we may be frustrated by what others say, the normal antidote for this is to use our own freedom of speech to counter that expression. Indeed, United States v. Alvarez (2012) proclaimed that “[t]he remedy for speech that is false is speech that is true. This is the ordinary course in a free society. The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straight-out lie, the simple truth.” The First Amendment empowers you to use your speech to support the ideas and causes that are important to you.