Freedom of Speech in the University Setting: Application of the First Amendment to the University of California
Freedom of speech is guaranteed under both the U.S. and California Constitutions. The University of California, as a public university, generally may not regulate speech or other forms of expression. As a public university, it must remain neutral in terms of any restrictions placed on speech in public forums, both in terms of the content and viewpoint. This does not mean that the University itself cannot express its own viewpoint, including condemning speech by others that it finds inconsistent with the University’s mission and stated values.
Speech generally is fully protected unless it is accompanied by, or incites, illegal activity. This includes the expression of unpopular or controversial viewpoints and speech that is viewed as hateful or offensive. Speech used to threaten physical harm, however, is a good example of speech that may be regulated.
The federal courts have generally found “speech codes” or policies regulating “hate speech” too vague or overbroad to withstand constitutional scrutiny.
The University of California also has policies and procedures that are designed to protect freedom of speech, while ensuring that conduct by its campus constituents (including students, faculty and staff) as well as “non-affiliates” (including outside speakers and members of the public) does not disrupt the normal business of the University. While the University cannot regulate the content of protected speech, it can regulate the time, place and manner of activities on campus, including the exercise of First Amendment rights, to ensure that the right to free speech is not exercised in a manner that infringes on the ability of the University to pursue its educational and research mission.
The University of California Policy on Speech and Advocacy guarantees students the constitutionally protected rights of free expression, speech, assembly and worship. Constitutionally protected speech alone is not subject to discipline under the Student Code of Conduct. Nevertheless, some forms of speech are not constitutionally protected and may be grounds for discipline. Examples include threats of violence, incitement to imminent lawless action, raising false alarms regarding imminent personal danger, and certain severe or pervasive harassment.
The University may impose reasonable limits on the time, place and manner of speech activities. These rules are implemented on a “content neutral” basis; that is, they apply to all speech and expressive activity regardless of the speaker or viewpoint expressed. Campus time, place and manner regulations are part of the Student Handbook and posted online.
Speech activities that violate the time, place and manner rules may be subject to student discipline.
Conduct that violates University rules, such as destruction or theft of property, endangering the safety of others, assault, or interfering with campus operations, even if it occurs in connection with speech activities or is motivated by expressive concerns, is not protected and may be subject to student discipline.
While violations of the Code of Student Conduct may be subject to discipline even when they occur in connection with expressive activities, the viewpoints or political positions expressed must have no influence on either the decision to impose discipline or the severity of penalties imposed.