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UNIVERSITY OF CALIFORNIA, MERCED

Free Speech

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.

Freedom of Speech FAQs

What are the laws that protect free speech?

The University of California must comply with both the U.S. and California Constitutions, as well as the California Education Code, including the following specific provisions:

“Congress shall make no law…abridging the freedom of speech…”

First Amendment to the U.S. Constitution

“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

Fourteenth Amendment to the U.S. Constitution (making the First Amendment applicable to state and local governments, including the University of California.)

“Every person may freely speak, write and publish…sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.”

Article I, Section 2(a) of the California Constitution

“…The Regents of the University of California…shall [not] make or enforce any rule subjecting any student to disciplinary sanction solely on the basis of conduct that is speech or other communication that, when engaged in outside a campus … is protected from governmental restriction” by the U.S. or California Constitutions.

Section 66301 of the California Education Code

What types of speech and expressive activity does the First Amendment protect?

Generally, the First Amendment protects all speech, although certain forms of speech enjoy lesser degrees of protection, including obscenity ( e.g., child pornography) and speech involving illegal conduct. Examples include:

  • Criminal threat with the specific intent that the statement is to be taken as a threat, even if there is no intent of actually carrying it out. The threat must be, on its face and under the circumstances, so unequivocal, unconditional, immediate and specific as to cause the person threatened to reasonably fear for his or her own safety or for his or her immediate family's safety.
  • Hanging a noose on a college campus for the purpose of terrorizing members of the campus community with the knowledge that it is a symbol representing a threat to life.
  • Obstruction of a police officer.
  • Fighting or challenging another to fight in a public place.
  • Use of offensive words in a public place which are inherently likely to provoke an immediate violent reaction (often called "fighting words").
  • Inciting illegal activity.
  • Willful disturbance of any lawful meeting (must "substantially impair" the meeting by intentional conduct in violation of implicit or explicit rules for the meeting that violator knew or should have known).
  • Unlawful assembly and refusal to disperse.
  • Vandalism and defacing property of another.
  • Disturbance by loud and unreasonable noise.
  • Trespass.

Does the First Amendment protect civil disobedience on campus?

Protests and civil disobedience have played a historic role on university campuses, in bringing important and beneficial changes within society, and in the development of our democracy. However, civil disobedience is not protected speech under the Constitution. The Constitution does not guarantee any right to engage in civil disobedience — which, by its very definition, involves the violation of laws or regulations—without incurring consequences. Civil disobedience may have a negative effect on the protected interests of others and may interfere with University business or threaten public safety or University assets in ways that require the University to act to protect those other interests.

How do the UC Merced Principles of Community relate to the First Amendment?

The Principles of Community serve as aspirational goals for how UC Merced community members should treat one another; they are not rules, laws or policies. In other words, even though speech may contravene the Principles of Community, the speaker cannot be punished for expressing viewpoints inconsistent with the Principles.

What is hate speech, and is it illegal or a violation of University policy?

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.

It is important to note that while hate speech is protected by the First Amendment, the First Amendment does not protect criminal conduct or conduct that violates University policy even if the conduct is motivated by an individual’s beliefs or opinions. Thus, hate crimes may be regulated by law and are not subject to protection under the First Amendment.

What is academic freedom and how does it relate to free speech?

The principles of academic freedom protect freedom of inquiry and research, freedom of teaching, and freedom of expression and publication. These freedoms enable the University to advance knowledge and to transmit it effectively to its students and to the public. The University also seeks to foster in its students a mature independence of mind, and this purpose cannot be achieved unless students and faculty are free within the classroom to express the widest range of viewpoints in accord with the standards of scholarly inquiry and professional ethics. Academic freedom protects the right of the faculty to deal with controversial topics in the classroom related to the curriculum or their research, notwithstanding the fact it may be offensive to some of those present in the classroom. It also protects the rights of students to speak freely on controversial topics in the classroom setting or in their academic work even if their views are considered offensive. Academic freedom does not protect speech inside or outside of the classroom that is unrelated to the curriculum, including teaching and research, and that otherwise may be restricted by the University as an employer.

Is bullying or harassment protected as free speech?

The University may restrict or discipline conduct considered to be harassment, even if it includes speech that otherwise might be protected. The University defines harassment as conduct that is so severe and/or pervasive, and objectively offensive, and that so substantially impairs a person's access to University programs or activities, that the person is effectively denied equal access to the University's resources and opportunities. Harassment includes, but is not limited to, conduct that is motivated on the basis of a person's race, color, national or ethnic origin, citizenship, sex, religion, age, sexual orientation, gender identity, pregnancy, marital status, ancestry, service in the uniformed services, physical or mental disability, medical condition, or perceived membership in any of these classifications. Offensive or hateful speech that does not meet the definition of harassment, however, is protected under the Constitution.

Is speech on the internet and social media 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, as with print media, should be given the full protection of the First Amendment. Reno v. ACLU, 521 U.S. 844 (1997). While the University can control the content on its official and sponsored websites, it cannot regulate the content of social media posting on unaffiliated sites, including personal or group Facebook pages, any more than it can regulate direct speech. Note that the University’s ability to regulate expressive activity in the workplace, or that relates to the workplace, is broader, except when the speech relates to a matter of public concern.

Do employees have the same free speech rights in the workplace as they do as citizens?

University employees (including faculty and staff, as well as student employees in the context of their employment) do not give up their rights to freedom of expression and assembly as citizens by virtue of being public employees; however, the University does have the right to restrict speech within or that affects the workplace. Generally, there is a two-part test for determining whether an employee’s speech is protected. First, it must relate to a matter of public concern, including political and social issues. This may include matters relating to the University, but not “private” University matters (such as in personnel disputes) that are not matters of public concern. Second, the University may restrict speech to the extent that it has the potential to disrupt the operation of the University. This is essentially a “balancing test” to determine whether the employee’s interest in free speech outweighs the University’s interest in restricting speech for business reasons and will usually be evaluated on a case-by-case basis. An example might be a restriction on using language that is offensive to co-workers in the workplace, given the impact on the morale and functionality of the workplace environment.