Frequently Asked Questions About Free Speech on Campus

What is the source of our free speech rights?

Free speech rights emanate from the First Amendment to the U.S. Constitution^[1] and from state constitutions. The U.S. Constitution limits the government’s ability to regulate speech based on content and it applies to all public colleges and universities. It serves as a floor, not a ceiling. State constitutions may grant more robust free speech rights than the U.S. Constitution, but never fewer.

Is there a distinction between private and public universities?

Private colleges and universities are not directly bound by the First Amendment, and they generally have more leeway to regulate speech.^[2] However, private universities may be bound by the contractual obligations that they undertake with their students and faculty. Many institutions promise freedom of expression in promotional materials and in student conduct policies. Furthermore, most private colleges and universities pride themselves on being bastions of free thought and expression. Additionally, private universities that receive federal funding must also adhere to federal anti-discrimination laws, including Title VI and Title IX of the Civil Rights Act of 1964.

Are academic freedom and free speech interchangeable?  If not, how are they different?

Academic freedom and free speech rights under the First Amendment are two related but analytically distinct concepts. Academic freedom addresses the right of colleges and universities to determine for themselves: 1) who may teach; 2) what may be taught; 3) how it should be taught; and 4) who may be admitted to study.^[3] The specific protection it affords will vary according to state law, institutional customs and policy, and whether an institution is public or private. The specific protection it affords will vary according to state law, institutional customs and policy, and whether an institution is public or private.

Academic freedom is important because it allows faculty and students to critically explore unpopular or controversial ideas without fear of formal reprisal. For example, there is nothing inherently inappropriate with faculty expressing their views about the Israeli-Palestinian conflict in a class related to this topic. However, they should neither impose their views on students nor silence alternative perspectives during any academic discussion.  Professors should never impose negative academic consequences on students who voice disagreement. Similarly, they should not offer extra credit or course credit to students who engage in any form of protest activity connected to the conflict.

Is all speech protected?

No. There are certain categories of speech that the First Amendment does not protect, including defamation, invasion of privacy, true threats, and incitement to imminent illegal activity, among others.

Attempting to silence authorized speakers on campus is also not protected by the First Amendment. This form of disruption is often referred to as the “heckler’s veto.” If dissenters succeed in shouting down an authorized speaker and preventing them from speaking, then campus authorities will have failed to protect the constitutional rights of both the speaker and the audience. 

Do public colleges and universities have any options to regulate protected speech on campus?

Yes. Courts typically regard public college and university campuses as limited/designated public forums. This means that Colleges and universities can generally place content-neutral restrictions on time, place and manner of speech as long as they are reasonable.

A policy stating, “Speakers may use amplified sound on the quad between noon and 1 p.m.” meets the content-neutral restriction requirement because there is a time (noon to 1 p.m.), place (quad) and manner (amplified sound) specified, all of which are unrelated to the content of the message.  Other common time, place, and manner restrictions include prohibitions on protest activity that blocks access to campus building entrances, bans on unauthorized overnight encampments, and requiring reservations to use indoor spaces to hold events.

By contrast, content-based restrictions on speech are subject to “strict scrutiny,” the most rigorous form of judicial review. ^[4] Content-based restrictions come in two forms: subject-matter restrictions and viewpoint-based restrictions. A ban on all rallies on the Israel-Palestinian conflict is an example of a subject-matter restrictions, and a ban on all pro-Israel speakers would be a viewpoint-based restrictions. These types of content-based restrictions infringe on free expression and are prohibited by the Constitution unless they can meet strict scrutiny.

Is hate speech protected speech?

Yes. So-called hate speech is generally protected by the First Amendment and may not be penalized.

Some countries, like Canada and the United Kingdom, have laws defining, prohibiting, and punishing the use of hate speech.  No such laws exist in the U.S., however, due to the robust protection that the U.S. Constitution affords to free speech.  Consequently, what we generally refer to as hate speech cannot be legally proscribed based solely on its hateful content.

At the same time, hate speech causes real harm and college and university leaders should not let it go unanswered. Schools should have comprehensive policies and guidelines about free speech on campus (such as clear and evenly enforced time, place, and manner restrictions) and should be prepared to respond in the face of hateful rhetoric that impacts members of the campus community.

Note: If hate speech crosses the line into a true threat or incitement, it no longer receives First Amendment protection. College and university administrators should consult with legal counsel to determine when such lines have been crossed and decide on an appropriate course of action.

How can colleges and universities and members of the campus community respond to constitutionally protected speech that is offensive and hurtful?

Colleges and universities should use their own free speech rights to respond to hateful discourse and assure members of their community that the campus is safe and inclusive for people with a range of backgrounds, identities, and beliefs. For instance, administrators should speak out when anti-Israel rhetoric crosses the line into antisemitism by invoking classic antisemitic tropes, holding all Jews responsible for the actions of the Israeli government, or by requiring Jews to denounce Israel or Zionism as the price of social inclusion.

The most effective responses to hateful speech and conduct are timely, specific, and direct. And wherever possible, administrators should initially consult with impacted students to assess and be responsive to their needs. For example, after a white supremacist group distributes flyers with antisemitic and other hateful language across campus, the school’s public response should be clear and directly address the nature of the antisemitic and hateful content and resulting harm to the targeted community; the steps the administration will take to support that community; and a reaffirmation of the school’s values.

Student groups and campus Jewish life organizations such as Hillel and Chabad should also use their free speech rights to counter antisemitic or anti-Israel rhetoric on campus. Counter speech provides individuals and groups with an opportunity to exercise their free speech rights without impinging on anyone else’s.

What is Title VI of the Civil Rights Act and how does it relate to free speech?

Students should be aware of their rights under Title VI the Civil Rights Act of 1964.

In relevant part, Title VI states that “no person in the United States shall, on the basis of race, color, or national origin, be excluded from participation in, denied the benefits of, or be subject to discrimination under any program or activity receiving Federal financial assistance.”^[5] Title VI applies to all public and private colleges and universities that receive financial assistance through participation in federal student aid programs.

In recent years, the Departments of Justice and Education have issued formal guidance to educational institutions informing them that Title VI prohibits discrimination against Jews, Muslims, Sikhs and members of other religious groups when the discrimination is based on the group’s actual or perceived shared ancestry or ethnic characteristics, or when the discrimination is based on actual or perceived citizenship or residence in a country whose residents share a dominant religion or distinct religious identity. Harassment that creates a hostile environment for individuals with a shared ancestry or ethnicity, such as Jewish students, can be a form of national origin discrimination under this guidance.^[6]

A hostile environment exists if the harassment denies or limits a student’s ability to participate in or benefit from the institution’s educational programs and activities. Colleges and universities must take prompt action that is reasonably calculated to end the harassment, eliminate the hostile environment, and prevent the harassment from recurring, or they risk violating Title VI.^[7]

According to the Office for Civil Rights (OCR), “[t]he fact that harassment may involve conduct that includes speech in a public setting or speech that is also motivated by political or religious beliefs...does not relieve a school of its obligation to respond under” ^[8]

Under Title VI, administrators can respond to a hostile environment created by offensive but protected speech in many ways, including:

• Issuing a countervailing statement condemning the speech;
• Demonstrating public support for the impacted students;
• Implementing policies and regulations designed to foster a more inclusive campus environment; and
• Enforcing relevant time, place, and manner restrictions in a consistent, content-neutral, and evenhanded manner.

How does OCR enforce violations of Title VI?

OCR can open an investigation into the college or university in response to a complaint from a student or other interested person or organization.  The complainant does not need to be a victim of the alleged discrimination.^[9]

OCR’s role is to act as a neutral factfinder and resolve complaints of unlawful discrimination. It neither provides legal representation to any of the parties, nor does it seek monetary damages on any complainant’s behalf.

If, after a thorough investigation, OCR finds that an institution may have violated Title VI, it can enter into a negotiated resolution with the school detailing specific action items for it to implement that are designed to eliminate the hostile environment and prevent its recurrence.

What other factors should students and colleges/universities consider when it comes to protecting speech and student safety on campus?

• Have campus stakeholders been educated about free speech in the higher education setting, including issues of academic freedom?
• Does the university have well-defined policies about what spaces on campus are open for speech and for whom? These should include:
  • Clear time, place, and manner restrictions;
  • Guidance about whether or when a permit is needed for speech-related activities and how to obtain such a permit; and
  • Whether external parties are treated differently from members of the campus community.
• Do campus administrators and law enforcement work with student groups before they hold events or programs that may spark protest or controversy?
• How is the level of security needed at an event assessed?
• Is there a consistent policy for protecting safety during protests and determining the point at which disruptive activity escalates to a heckler’s veto?

How can universities support students who are impacted by hateful speech and conduct?

Universities can take additional steps to support students who are impacted by offensive and harmful speech and/or microaggressions. Universities should:

• Publish straightforward definitions of what constitutes harassment and a clearly outlined complaint procedure;
• Issue a public and direct statement of support;
• Meet with impacted students to learn about their experiences and needs;
• Offer support services and resources, including mental health counseling; and
• Designate an administrator or faculty member to be a trusted intermediary for the affected students with the administration going forward.