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Free Speech FAQs

Note:

Issues pertaining to freedom of speech and expression can be very complicated and confusing. This website is intended only to provide a brief outline about freedom of speech and expression, and is not meant to serve as legal advice. If you are a currently registered UC San Diego student, you may wish to contact Student Legal Services at (858) 534-4374 to schedule an appointment in order to discuss a particular question or issue.

"Where racist, sexist and homophobic speech is concerned, the ACLU believes that more speech — not less — is the best revenge. This is particularly true at universities, whose mission is to facilitate learning through open debate and study, and to enlighten."

American Civil Liberties Union

What does the First Amendment protect?

The First Amendment to the U.S. Constitution protects freedom of speech, press, religion, assembly and petition. These freedoms, however, are not absolute. In analyzing any attempted regulation of speech, press, religion or assembly, courts will weigh the importance of the First Amendment and the freedoms it protects against the policies and interests that are meant to be served by the regulation.

Does the First Amendment protect speech and expression at UC San Diego?

Yes. While the language of the First Amendment refers only to "Congress," the First Amendment — as well as most of the other Amendments that make up the Bill of Rights — applies to government entities in general by way of the Fourteenth Amendment to the Constitution. This includes federal, state and local government officials, and extends to public schools and institutions including UC San Diego. As the U.S. Supreme Court held in Tinker v. Des Moines Independent School District, students "do not shed their rights to freedom of speech and expression at the school house gate." Tinker v. Des Moines Independent School District, 393 U.S. 503, 506 (1969).

Does the First Amendment protect civil disobedience on campus?

No! The First Amendment of course protects freedom of speech and expression (as well as peaceable assembly.) However, this protection is not absolute, and speech may be subject to time, place, and manner (i.e., conduct) regulations. The First Amendment does not protect engagement in civil disobedience which, by definition, involves the violation of laws or regulations. So if, for example, student protestors take over a campus building, or disrupt classes or events, their actions may be subject to punishment, not only under the UC San Diego Student Conduct Code, but also in criminal court, if the conduct—for example trespassing, vandalism, or disturbing the peace—constitutes a crime. Civil disobedience has historically played a significant role at UC San Diego and elsewhere as an effective protest tactic, but students should be aware that participation in civil disobedience could potentially result in serious criminal or conduct charges.

What are UC San Diego’s Principles of Community? How do they relate to the First Amendment?

The Principles of Community were adopted as part of UC San Diego’s efforts to "strive to maintain a climate of fairness, cooperation, and professionalism." The Principles of Community are "vital to the success of UC San Diego and the well-being of its constituents," as they encourage civility and respect by and between UC San Diego community members. "UC San Diego faculty, staff, and students are expected to practice these basic principles as individuals and in groups" when they engage in speech and expression.

While the Principles of Community serve as guidelines for how UC San Diego community members should treat one another, they are not meant to create a means by which individuals can be sanctioned for violating the Principles of Community. In other words, even though speech may run afoul of the Principles of Community, the speaker cannot be punished for such a violation unless the speech falls into one of the specific content- or conduct-related exceptions to the First Amendment (See Freedom of speech and expression 101 regarding the exceptions.) As such, while speech may be hurtful and offensive, and may violate the Principles of Community, it may still be protected by the First Amendment!

Nevertheless, UC San Diego offers tools and mechanisms to address words or actions that impact campus climate or violate the Principles of Community and/or other University policies. As such, students who encounter hurtful or offensive speech are encouraged to reach out to University administrators including the Office for the Prevention of Harassment and Discrimination, the Office of Student Conduct, and college Student Affairs and Residential deans. More information about responding to hateful speech or acts may be found at http://reportbias.ucsd.edu.

What is “hate speech”? Is it illegal?

The term "hate speech" is not defined by law, and no such category exists as an exception to the First Amendment. Thus, even if speech is hateful or offensive, it is still protected by the First Amendment unless it violates one of the limited content- or conduct-related exceptions identified by courts (See Freedom of speech and expression 101 regarding the exceptions.)

Legal scholars have supported the idea that the best way to respond to hateful or offensive speech is not to attempt to limit it but instead to encourage more speech. For example, as Justice Louis Brandeis famously wrote, "If 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." Whitney v. California, 274 U.S. 357, 377 (1927).

Likewise, the American Civil Liberties Union believes that, "where racist, sexist, and homophobic speech is concerned, the ACLU believes that more speech — not less — is the best revenge. This is particularly true at universities, where the mission is to facilitate learning through open debate and study, and to enlighten." See http://www.aclu.org/free-speech/hate-speech-campus.

It is important to note that while "hate speech" is in itself not a category excepted by the First Amendment, the First Amendment does not protect conduct just because it is motivated by an individual’s beliefs or opinions. Thus, "hate crimes" may be regulated by law and are not subject to protection by the First Amendment.

UC San Diego offers tools and mechanisms to address words or actions that impact campus climate or violate the Principles of Community and/or other University policies. As such, students who encounter hurtful or offensive speech are encouraged to reach out to University administrators including the Office for the Prevention of Harassment and Discrimination, the Office of Student Conduct, and college Student Affairs and Residential deans. More information about responding to acts of intolerance may be found at http://reportbias.ucsd.edu.

What is “academic freedom”?

The principles of academic freedom protect freedom of inquiry and research, freedom of teaching, and freedom of expression and publication. Academic freedom offers broad discretion to educators regarding free inquiry and the exchange of ideas and opinions expressed in a university setting, and it grants universities the right to determine their educational mission without restraint." For more information see APM 010, Academic Freedom: http://policy.ucop.edu/doc/2300009/APM-010, and APM 015, the Faculty Code of Conduct: http://policy.ucop.edu/doc/2300010/APM-015.

When does speech become harassment?

According to Title VII of the Civil Rights Act of 1964, speech may not be protected by the First Amendment if that speech contributes to a broader pattern of harassment resulting in a "hostile or offensive environment" for an individual. Harassment refers to a severe and pervasive course of conduct directed at an individual causing that person substantial emotional distress. Whether the conduct constitutes harassment depends on a number of factors including how it occurs and the extent to which it is targeted specifically at an individual. For example, an offensive description of a student in a publicly accessible publication or website, (e.g., Facebook or Twitter) may not rise to the level of harassment because it is occurring a public domain and the student may choose to avoid the publication or website. In contrast, if an individual is the target of repeated harassing phone calls or e-mail messages directed to the individual, such action may give rise to a valid claim of harassment.

The University of California has a policy prohibiting sexual harassment in particular; see http://policy.ucop.edu/doc/2710536/PACAOS-160.

Nonetheless, as with the other content-related exceptions to the First Amendment, speech must meet a very high threshold for it to be considered harassment. As one court noted, "Since Title VII is only a statute, it cannot supersede the requirements of the First Amendment." UWM Post, Inc., v. Board of Regents of Univ. of Wisconsin, 774 F.Supp. 1163, 1177 (E.D. Wis. 1991).

Students who feel that they may have been subjected to harassment are encouraged to reach out to University administrators including the Office for the Prevention of Harassment and Discrimination, the Office of Student Conduct, and college Student Affairs and Residential deans. More information may be found at http://reportbias.ucsd.edu.

In the context of defamation, why is it relevant if the subject is a “public figure”?

Defamation is 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.

If the individual who is the subject of defamatory speech is a "private person," he or she generally needs to prove that the speaker was at fault (i.e., "negligent") in making the defamatory statement, in order for the subject to successfully bring a defamation claim against the speaker. However, a subject who is considered a "public figure" must meet a higher standard in order to bring a successful defamation claim.

Whether an individual is considered a "public figure" depends greatly on context. An individual may be considered a public figure if he or she gains enough fame or notoriety to be considered well known by the public (including student government members and other student leaders.) One may also be considered a public figure for a limited purpose if he or she is thrust (voluntarily or by others) into a public controversy or event. Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).

If an individual is considered a public figure, he or she will not be able to maintain a defamation claim against a speaker unless the he or she can prove "actual malice" by the speaker. This means that the speech will be protected unless it was made with knowledge of its falsity or with reckless disregard of whether it was true or false. New York Times v. Sullivan, 376 U.S. 254, 265-292 (1964).

The First Amendment protects parodies of public figures under most all circumstances, no matter how obnoxious or distasteful. Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 48 (1988).

Can university officials or the student government censor a student organization publication if the university or student government funds it?

Not at a public institution such as UC San Diego. The courts have ruled that if a school creates a student news medium and allows students to serve as editors, the First Amendment drastically limits the school's ability to censor the medium. Among the censoring actions the courts have prohibited are confiscating copies of publications, requiring prior review of content, removing objectionable material, limiting circulation, suspending editors, and withdrawing or reducing financial support. Student editors have the right to edit or refuse to publish an article or piece. Similarly, the UC San Diego Associated Students (the undergraduate student government) produces its own publication and manages its own television station and radio station, and its editors and station managers may edit or refuse to publish or broadcast a piece or project.

California law prohibits attempts by California public educational institutions to "make or enforce a rule subjecting a student to disciplinary sanction solely on the basis of conduct that is speech or other communication that, when engaged in outside a campus of those institutions, is protected from governmental restriction by the First Amendment to the United States Constitution or Section 2 of Article I of the California Constitution." California Education Code Section 66301(a). This State law guarantees that college students at a minimum “have the same free speech rights on campus that they have off-campus.” Crosby v. South Orange County Community College Dist., 172 Cal.App.4th 433, 441 (2009).

Is speech on the Internet entitled to the same level of protection as speech in print and other media?

Yes. In the case Reno v. ACLU, the Supreme Court rejected the government’s argument that speech on the Internet could be more carefully regulated as it is with radio and television broadcasting, and concluded that the Internet should be given the full protection of the First Amendment as it is with print media. Reno v. ACLU, 521 U.S. 844 (1997).

Are there regulations pertaining to the speech and expressive conduct of non-University affiliates while on campus at UC San Diego?

Yes. The conduct of persons who are on campus but are not otherwise affiliated with UC San Diego is governed by University of California regulations, available here.

If my student organization hosts an on-campus event, can others video- or audio-record the event or the participants?

It depends. If the event occurs at a public location on campus where access cannot be limited/controlled (e.g., Library Walk), then the event and its participants may be video- and audio- recorded.

If on the other hand the event occurs at a location where access can be controlled or limited (such as a meeting room or ballroom in the Price Center), then the student organization may establish reasonable rules for how audience members conduct themselves and what audience members may bring to the event venue (such as cameras, microphones, and/or other video and audio equipment) so long as the rules are posted at all entrances, are clearly visible, and are equally applied to all audience members. Student organizations interested in establishing reasonable restrictions (e.g., no leafleting, no videotaping) at their events should contact their advisor at the Center for Student Involvement for further information on how to enact these rules.

Questions?

Contact Student Legal Services, (858) 534-4374.