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Freedom of Speech FAQs

Adapted from the FAQs from U.C. Berkeley's free speech website.

What does the First Amendment say?

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

What is freedom of speech and what does it protect?

Freedom of speech is the right of persons to articulate their 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 by many state and federal laws. The United States’ free speech protections are among the strongest of any democracy; the First Amendment protects speech that some view as offensive, hateful, or harassing.

Which types of speech are not protected by the First Amendment?

The U.S. Constitution guarantees freedom of speech by default, placing the burden on the state to demonstrate whether there are any circumstances that justify its limitation. Established exceptions to the First Amendment include, but are not limited to, the following:

  • Speech that would be deemed a “true threat”: Speech that a person reasonably would perceive as an immediate threat to their physical safety is not protected by the First Amendment. For example, if a group of students yelled at a student in a menacing way that would cause the student to fear a physical assault, such speech would not be protected.
  • 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. For example, a speaker on campus who exhorts the audience to engage in acts of vandalism and destruction of property is not protected by the First Amendment if there is a substantial likelihood of imminent illegal activity.
  • Harassment: Harassment in an educational institution aimed at an individual on the basis of a protected characteristic (e.g., race, gender, sexual orientation, religion, etc.); that is also pervasive and severe; is a direct or implied threat to employment or education; or creates an intimidating, hostile and demeaning atmosphere, is not protected by the First Amendment. For example, posting racist messages on the residence hall room of an African American student would be regarded as harassment and not speech protected by the First Amendment.
What is "hate speech?" Is it illegal?

The term “hate speech” does not have a legal definition in the United States. Nevertheless, the term often refers to speech that insults or demeans a person or group of people on the basis of particular attributes such as race, religion, ethnic origin, sexual orientation, disability, or gender. While the College condemns speech of this kind, there is no “hate speech” exception to the First Amendment. “Hate speech” is constitutionally protected speech. “Hate speech” is illegal if it falls into one of the exception categories mentioned in the preceding question. On many occasions, the Supreme Court has explicitly held that prohibitions or punishments for hate speech violate the First Amendment.

Just because there is a First Amendment right to say something, however, doesn’t mean that it should be said. The First Amendment protects the right to say hateful things, but as a campus, Geneseo strives to be a community where no one chooses to express hate.

Is controversial speech legal?

Yes. The Constitutional right to free speech as set forth in the First Amendment to the United States Constitution affirms, with few exceptions, the lawfulness of individuals’ and groups’ right to communicate virtually any idea regardless of how widely shared or accepted by others it may be.

Can the College restrict speech on campus?

Yes. However, any restriction must be content-neutral and narrowly tailored to serve a significant government interest. In general, this means that Geneseo can determine the time, place and manner of speech so as to ensure minimal interference with the operation of the college, its provision of services, and people’s access to it.

What are time, place and manner restrictions and how do they relate to public forum free speech?

The Supreme Court has said that public entities such as the College have discretion in regulating the “time, place, and manner” of speech. As a public entity, partially funded by NYS tax dollars, the College will provide a designated public forum to third parties outside of the Campus Community for their exercise of free speech rights.

Can the College restrict speech because it is controversial?

No. College policy may not supersede the Constitution. Moreover, restricting any individual’s or group’s speech solely on the basis of it being upsetting, or even demonstrably wrong, jeopardizes everyone’s rights. The laws that assure free speech for neo-Nazis and pornographers also protect the rights of anti-war protesters, civil rights workers, lesbian and gay activists and others fighting for peace, justice, fairness, and equality.

What is the College’s official position on controversial speech?

The College has a legal, and indeed a moral, obligation to ensure that it protects the free exchange of ideas. The principles of academic freedom demand that all ideas are given a fair opportunity to rise or fall on their own merit; only then can we have any confidence in our own opinions and beliefs. For this reason, the College will remain a neutral venue and provide the same level of safety and respect to all speakers. As Thomas Jefferson said of his own university, "here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it."

What is the College’s response to bigoted or offensive speech?

Geneseo strives to ensure a safe environment for all constitutionally-protected speech, regardless of its content, and encourages college community members to fully understand their right to free speech under the First Amendment. The College also supports forums and symposia on controversial topics where they can be discussed and debated in an intellectually-stimulating and productive manner.

How should I respond to controversial speech?

Academic freedom and freedom of speech are hard to take sometimes; it is difficult to see and hear things that challenge your personal beliefs and offend the things you cherish. But if academic freedom and freedom of speech are to mean anything, they mean that critics cannot silence that with which they disagree—however strongly they may disagree.

You, alone or as part of a group, have the right to respond to a controversial speaker with protected speech of your own. This includes—but is not limited to—talking, circulating literature, displaying signs, and singing. However, you may not threaten a speaker or commit any violent act against a speaker. Nor may you participate in the creation of a situation in which the speaker cannot be heard.

You also have the right to ignore a controversial speaker – which is sometimes the best way to show your disagreement with their message and deny them the attention they are often seeking.

Resources from Other Colleges

Policy and Regulatory References

Campus Offices to Contact for More Information or Assistance

Some additional resources from 2016