Below is a series of questions and answers related to free speech on campus, the First Amendment, the rights of student groups and controversial speakers, and UofL’s commitment to community safety.
1. What does the First Amendment protect?
There are five freedoms in the First Amendment of the United States Constitution: freedom of religion, freedom of speech, freedom of the press, freedom of assembly, and freedom of petition. While these freedoms appear absolute, they are not. Exceptions arise in particular cases because they often come into conflict with other rights guaranteed by the Constitution. This means that courts are forced to consider exceptions to rights in cases where one right comes into conflict with another right. For example, we have the freedom of assembly but that does not mean we can assemble to block people from entering a polling place to exercise their right to vote.
2. What is freedom of speech and what does it protect?
Freedom of speech is the right of a person to articulate opinions and ideas without interference or retaliation from the government. The term “speech” constitutes expression that includes far more than just words, but also what a person wears, reads, performs, protests and more.
In the United States, freedom of speech is strongly protected by the First Amendment of the U.S. Constitution, as well as many state and federal laws. Even speech that many would see as offensive, hateful or harassing is protected along with the speaker’s right to speak, and the hearer’s right to hear.
3. Does the First Amendment protect speech and expression at UofL?
Yes, for the most part. UofL is a public institution. The Supreme Court has ruled that the First Amendment does protect students and teachers in public schools. In the landmark case of Tinker v. Des Moines, the Supreme Court explained, "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years." The Court did, however, note that the First Amendment rights of students are not absolute, "conduct by the student, in class or out of it, which for any reason-whether it stems from time, place, or type of behavior-materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech." UofL is committed to making all efforts to preserve both freedom of speech and the many other rights in the Constitution that are guaranteed to members of the campus community.
4. How does UofL view the First Amendment on our campus?
UofL supports and is committed to open, free and robust discussion, debate and exchange of ideas as an indispensable part of its educational mission, especially when the ideas expressed are controversial and unpopular. UofL also has the obligation, however, to ensure the safety and security of persons and property, and that University operations, functions and events are not disrupted. The time, place, and manner of persons exercising their rights of free expression, speech, assembly, and religious worship are subject to campus regulation. These regulations apply to all members of the University community, including students, faculty, staff, administrators, volunteers, and non-affiliated members of the public, while on University property. UofL supports creative, thoughtful, and respectful discourse where conflicting perspectives are vigorously debated and thoroughly discussed. UofL is dedicated to affording all members of the UofL community the protections for free speech, expression, assembly, religion, and press available under the U.S. and Kentucky constitutions and all applicable federal and state laws, in accordance with the University's purpose and function except insofar as limitations on those freedoms are necessary to UofL's functioning. It is not the proper role of the University to attempt to shield persons from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive. Although UofL greatly values civility, and although all members of the UofL community share in the responsibility for maintaining a climate of mutual respect, concerns about civility and mutual respect are not a justification for closing discussions of ideas, however offensive or disagreeable those ideas may be. Yet, the University also has the duty to restrict expression that violates the law, falsely defames a specific individual, constitutes a genuine threat or harassment, unjustifiably invades substantial privacy and confidentiality interests, or is otherwise directly incompatible with the University's functioning. Additionally, the UofL may reasonably regulate the time, place, and manner of expression on University property and over its communication systems to ensure the expression does not disrupt ordinary University functions and activities.
5. What are UofL's responsibilities to protect free speech rights?
The University of Louisville is governed by the U.S. Constitution’s First Amendment, and Kentucky’s Campus Free Speech Protection statute which limits its ability to restrict freedom of speech, even if the content is considered offensive or hateful. The university cannot prohibit speakers from speaking just because individuals from the campus or surrounding community disagree with the content of the speaker’s presentation or with his or her opinion.
UofL can set limits on a speaker’s appearance that aren’t related to speech content. Those limits include setting reasonable time, place, and manner restrictions. Those rights also include not allowing speech to occur in a manner that disrupts classrooms, research labs, and offices.
Neither the First Amendment nor the University policy requires the university to put anyone’s safety at risk when the campus has identified a serious threat of imminent harm to students, faculty, and staff. It is the safety risk – not the speaker’s viewpoint – that would be the sole basis for a decision to decline a request.
6. Does the First Amendment protect civil disobedience on campus?
No. The First Amendment protects the right to dissent in many forms, but not civil disobedience. By definition, civil disobedience refers to the refusal to obey laws by violating them. A founding premise for society based on the rule of law and order is to adhere to the laws that are voted into existence. In the United States, we have guaranteed the right to dissent, to protest, to assemble peaceably, to petition against a law, and to pose legal challenges to laws we believe violate constitutional rights. When dissent crosses over into the area called "time, place, manner" restrictions, dissent moves to civil disobedience. Students may dissent against a range of policies and against political ideas in a number of ways. Such dissent becomes unprotected civil disobedience when taking over a campus building, materially disrupting classes or events, trespassing, vandalizing, disturbing the peace, or other types of conduct subject to time, place, manner restrictions. UofL protects the freedom to dissent, and also seeks to raise awareness that participation in civil disobedience could potentially result in serious criminal or conduct charges.
7. What is Hate Speech and is it protected speech?
The term "hate speech" does not have a legal definition in the United States, but it often refers to speech that insults or demeans a person or group of people on the basis of attributes such as race, religion, ethnic origin, sexual orientation, disability or gender. UofL condemns speech of this kind. “Hate speech” is illegal if it falls into one of the categories described in question 14 (Which types of speech are not protected by the First Amendment?) . On many occasions, the Supreme Court has explicitly held that prohibitions or punishments for hateful speech violate the First Amendment.
The trouble with regulating hate speech is in the very attempt to define "hate speech" and how that type of speech would be regulated in practice. Advocates and scholars of the First Amendment have wrestled with a few issues pertaining to the regulation of hate speech. For example, four fundamental areas address the issue of "hate speech":
- Advocates of the First Amendment, tend to advocate a "more speech" solution to hate speech. This solution was made famous by the Whitney v. California Supreme Court decision: "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. Only an emergency can justify repression." The American Civil Liberties Union explained, for example, 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." UofL believes in the "processes of learning" as central to addressing "hate speech." UofL encourages active listening, dissent, and is committed to cultivating an educational environment to allow for the "processes of education" as a condition for fulfilling the Court's directions concerning the "more speech" solution.
- Scholars have wrestled for quite some time to generate ways to regulate "hate speech"-the trouble in discerning a workable standard lies in at least two realities: (1) The standard must be general enough to apply to any number of cases where "hate speech" is expressed. If standards are too specific, those that hate find alternative forms of expression that would then need to be addressed in additional legislation (they may also fail to pass the viewpoint discrimination test of the court that targets-legislation cannot target particular viewpoints), (2) General standards may serve as instruments that run counter to the desired objective. In most cases, groups accuse each other of "hate speech." If sorted out in court, both sides run the risk of violating hate speech laws depending on the court making a given decision.
- There are many things that might be constitutionally permissible when it comes to working through issues of "hate speech" on campus. For example, please see Center for First Amendment Studies paper on hate speech and academic freedom.
- Imminent lawless action, established in Brandenburg v. Ohio (1969), is a standard in determining the limits of free speech. When a speaker intends to incite an imminent and likely violation of the law, the courts evaluate this action based on the following legal analysis:
If the advocacy is directed to inciting or producing imminent lawless action and if the advocacy is likely to incite or produce such action.
Just because there is a First Amendment right to say something, however, doesn’t mean that it should be said. The First Amendment protects a right to say hateful things, but we strive as a campus to be a community where no one will choose to express hate.
8. Aren’t Hate Speech and Hate Crimes the same thing?
No. Hate speech and hate crimes are not the same thing.
A hate crime is any criminal act or attempted criminal act directed against a person or persons based on race, color, religion, national origin, sexual orientation, gender, gender identity, and disability. It involves conduct that goes beyond words that are uttered and involves some other law that has been violated, not simply because of the message being conveyed.
9. Why does the University allow controversial speakers?
University staff and faculty, as government actors, are prohibited from restricting speech. When someone exercises their First Amendment right to free speech, the government is not allowed to shut down the speech just because other people don’t like the message that is being conveyed.
10. Can I or my group stop or shut down speech we don’t like?
No. Stopping or attempting to stop or shut down speech by shouting it down, by physically threatening the speaker, or by obstructing the speaker’s audience is not permissible. The First Amendment protects both the speaker’s right to speak and the hearer’s right to hear – the university is obligated to protect these rights under federal and state law (see KRS 164.348 Campus Free Speech Protection) and as detailed in the Red Book, Section 2.5.1.
Students who interfere with the speaker’s right to speak and/or the hearer’s right to hear may be in violation of the Code of Student Conduct. Additionally, if a student fails to comply with the directions of a University official to stop interfering or attempting to interfere with a speaker’s right to speak and/or a hearer’s right to hear they may be in violation of the Code.
Similarly, employees who interfere with or stop or attempt to stop or shut down speech may be in violation of the Redbook or the University Code of Conduct.
11. What is "academic freedom"?
"Academic freedom" is an idea rooted in the idea that the common good depends upon the free search for truth and its free exposition. This includes freedom to research and teach. "Academic freedom" includes correlative duties. UofL remains committed to academic freedom-educational institutions can advance knowledge and truth only by being open to the contestation of ideas. This means protecting scientific, literary, artistic, and political speech as a condition of thought. Information is the currency of democracy and is the key to a life in pursuit of knowledge to advance the common good. More information on "academic freedom."
12. What are "time, place and manner" restrictions and how do they relate to controversial speakers?
The Supreme Court and the Kentucky Campus Free Speech Protection statute allow Universities such as UofL to use discretion in reasonably regulating the “time, place, and manner” of speech. The right to speak on campus is not a right to speak any time, at any place and in any manner that a person wishes. UofL can place reasonable restrictions on where, when and how speech occurs to ensure the functioning of the campus and achieve important goals, such as protecting public safety.
When it comes to controversial speakers, UofL invokes this necessary authority in order to hold events at a time and location that maximizes the chance that an event will proceed successfully and that the campus community will not be made unsafe. UofL heeds its police department’s assessment of how best to hold safe and successful events.
The university might invoke its time, place and manner discretion, for example, to ensure that an event with a highly controversial speaker would be held in a venue that the campus police force believes to be protectable (e.g. one with an ample number of exits, with the ability to be cordoned off, without floor to ceiling glass, etc.).
13. How does UofL handle requests from outside speakers?
When UofL receives requests from outside speakers to use campus space, the Policies and Procedures Regrading Speech and Distribution of Literature in Public Areas will be applied. To access the full policy visit the University Policy Library and search for Speech and Distribution of Literature.
This Policy applies to individuals and groups who are not part of the campus community who wish to engage in speech activities, including the distribution of literature, within the demarcated physical boundaries of the University. Literature includes any printed material, including any newspaper, magazine or other publication, and any leaflet, flyer, or other informal printed matter intended for distribution or actually distributed to members of the University community. This Policy applies specifically to non-commercial speech. Individuals or groups who seek to distribute material for commercial purposes should contact the Student Activities Office.
However, the administration reserves the right to decline or cancel any event if officials determine it poses serious safety risks and imposes an imminent threat of violence to campus.
Recognized Student Organizations, University departments, and faculty members may invite outside speakers to come to campus and use University facilities, provided that they have followed procedure for reserving space in that facility.
14. Which types of speech are not protected by the First Amendment?
The Constitution guarantees freedom of speech by default, placing the burden on the state to demonstrate whether there are any circumstances that justify its limitation. When it comes to controversial speakers delivering remarks on campus, the relevant exceptions to the First Amendment that have been established are:
- Speech that would be deemed a “true threat”: Speech that a person reasonably would perceive as an immediate threat to his or her physical safety is not protected by the First Amendment.
- Incitement of illegal activity: There is no right to incite people to break the law, including to commit acts of violence. To constitute incitement, the Supreme Court has said that there must be a substantial likelihood of imminent illegal activity and the speech must be directed to causing imminent illegal activity.
- Harassment in an educational institution aimed at an individual on the basis of a protected characteristic (race, gender, sexual orientation, religion); that is also pervasive and severe; is a direct or implied threat to employment or education; or creates an intimidating, hostile and demeaning atmosphere.
15. Some universities, including public ones, have denied or cancelled the appearances of polarizing speakers. Why doesn't UofL do the same?
Several public universities have denied requests from controversial speakers citing the possibility of violence as a cause to invoke prior restraint in the name of public safety. We are not aware of any public university that has cancelled an already scheduled appearance, or an invitation issued by a legally independent student group.
It should be noted that in previous attempts to block controversial speakers from appearing on campuses, some of them have sued those campuses and won. Lawsuits were filed against some public universities that denied such requests; in several cases, the court ruled that the universities had to allow the events to proceed.
Cancelling events must be a last resort to be used only when the campus, despite taking all reasonable steps, believes that it cannot protect the safety of its students, staff and faculty. Events can never legally be canceled based on the likely offensiveness of the speaker’s message.
16. When does speech become harassment?
There is no bright line that determines when student speech becomes harassment. Hence, we are left to interpret harassment based on general standards. Generally, harassment requires that speech be of the following nature: (1) specifically targeted at a student or group of students, (2) repeated, (3) intimidating or threatening. In addition, for harassing speech to be identified, there generally must be demonstrable harm to a student, damage to a student's property, interference with the student's education, or disruption to the orderly operation of a school. Categories of harassment that are unprotected by the First Amendment include harassment based on gender, disability, religion, race, color, or national origin. Sexual harassment is also generally unprotected by the First Amendment. UofL remains committed to working to maintain an educational environment free of harassing speech in order to encourage the free exchange of ideas and a robust learning environment.
17. What should I do if I’m being harassed and/or cyberbullied?
Being a member of the Cardinal community means that you may come across things on campus or the internet and social media which you don’t agree with - or that specifically targets you, a group individuals, or an ideology. The University makes every effort to make sure all students, staff, faculty, and guests are treated fairly.
The University of Louisville's Discriminatory Harassment Policy reflects the commitment to maintain a community that is free from harassment of any kind. Harassment of any kind (including sexual harassment and sexual abuse) is not acceptable at the University. It is inconsistent with the University's commitment to excellence and respect for all individuals. The University is also committed to protecting the academic freedom and freedom of expression of all members of the university community. Academic freedom and freedom of expression includes, but is not limited to, the expression of ideas, however controversial, in the classroom, residence hall, and in keeping with different responsibilities, in work places elsewhere in the university community.
18. Is speech on the Internet entitled to the same level of protection as speech in print and other media?
Yes and No. In principle, the Supreme Court in Reno v. ACLU rejected the government's argument that speech on the Internet could be regulated more carefully than radio and television broadcasting. The Court's conclusion was that the Internet should be given the full protection of the First Amendment as it is with print media. One important caveat-speech within certain private forums on the Internet may be subject to private company policies on acceptable speech. The First Amendment pertains to congressional and government regulation of speech, and not the private regulation of speech. So, for example, social media companies may restrict the speech of its users in ways the First Amendment would not permit if such companies were government entities.
19. Is chalking permitted on campus?
20. How do I report a concern and/or possible violation?
If you have a concern or possible violation to report, the Dean of Students provides advice and guidance to students on answering questions and resolving concerns about their rights, as well as informal and formal conduct procedures.
If you believe you have experienced discrimination and/or harassment by a faculty or staff member you should report this to the Human Resources office.
The University Louisville is committed to and will provide equality of educational and employment opportunity for all persons regardless of race, sex, age, color, national origin, ethnicity, creed, religion, disability, genetic information, sexual orientation, gender, gender identity and expression, marital status, pregnancy, or veteran status – except where sex or national origin represent bona fide educational or employment qualifications. Further, the university seeks to promote campus diversity by enrolling and employing a larger number of veterans and persons with disabilities as well as minorities and women where these groups have historically been and continue to be under-represented within the university in relation to availability.
The University of Louisville strives to foster and sustain an environment of inclusiveness that empowers us all to achieve our highest potential without fear of prejudice or bias. We commit ourselves to building an exemplary educational community that offers a nurturing and challenging intellectual climate, a respect for the spectrum of human diversity, and a genuine understanding of the many differences-including race, ethnicity, gender, socio-economic status, national origin, sexual orientation, disability, and religion-that enrich a vibrant metropolitan research university. We expect every member of our academic family to embrace the underlying values of this vision and to demonstrate a strong commitment to attracting, retaining, and supporting students, faculty, and staff who reflect the diversity of our larger society.