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Free Speech on Campus

In August of 2017, when Boise State University President Bob Kustra announced the Marilyn Shuler Human Rights Initiative, he outlined the university’s overall responsibility to host and foster civic discourse and discussion.

“Public universities have always been and will long remain a marketplace of ideas, where constitutionally protected free speech is exercised with regularity,” Kustra said in his announcement of the Initiative. “But that means our campuses will have to be on the highest alert for the ideological clashes that will continue to take place, as this marketplace of ideas at times becomes what Barack Obama once called a ‘battlefield of ideas.’”

“We must endeavor to preserve and celebrate the freedom of speech that separates our country from so many others, while fostering non-violent discourse and dignity for all of our students, faculty, staff and visitors — by creating an atmosphere where ideas and ideals can flourish and no one feels threatened or unsafe.”

As set out in University Policy 1100, “…the university recognizes and supports the rights of free expression and speech, and remains a place for the broadest expression of views. The only limits on this expression are to avoid conflict with the normal uses of the campus, the rights of others, and the limitations of lawful conduct.”

The First Amendment

The First Amendment to the U.S. Constitution is only 45 words long, yet it protects our most basic freedoms. It reads in full:

“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 does the First Amendment protect?

Generally, the First Amendment to the U.S. Constitution protects all speech, although the following forms of speech enjoy less protection:

  • Commercial speech (e.g. advertising).
  • Obscenity (e.g., child pornography).
  • Defamation – libel or slander (i.e. written or spoken false statements).
  • Speech involving illegal conduct. For example:
    • Criminal threat: Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, 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 in which it is made, 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.
    • Resisting, Delaying or Obstructing a police officer.
    • Fighting, or challenging another to fight, in a public place.
    • Use of “fighting words” – words in a public place which are inherently likely to provoke an immediate violent reaction or breach of the peace.
    • Inciting illegal activity.
    • 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. Actions and speech in civil disobedience may conflict with the free speech rights enjoyed by others, and may disrupt or interfere with university business and academic efforts, or even threaten public safety or university assets in ways that require the university or law enforcement to act to protect those other interests.

How do the Boise State University Statement of Shared Values relate to the First Amendment?

The Statement of Shared Values was adopted as part of Boise State University’s efforts to “strive to create an inclusive and intellectually vibrant community.” While the Statement of Shared Values serves as a set of aspirational goals for how Boise State University community members should treat one another, they are not rules, laws or policies. In other words, even though an individual’s speech is at odds with the Statement of Shared Values, the speaker cannot be punished by the university for such speech.

You can read the Statement of Shared Values here.

How does the Boise State University Statement of Diversity and Inclusion relate to the First Amendment?

The Statement of Diversity and Inclusion was adopted to align with the University’s Statement of Shared Values and demonstrate commitment to diversity and inclusion. While the Statement of Diversity and Inclusion declares the university’s dedication to diminish prejudice, oppression, and discrimination and to increase dignity, respect, and working collectively, it too is not a rule, law, or policy. In other words, even where an individual’s speech is at odds with the Statement of Diversity and Inclusion, the speaker cannot be punished by the university for such speech.

You can read the Statement of Diversity and Inclusion here.

What is hate speech, and 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.

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, “[i]f 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).

The First Amendment protects most speech, but not action. However, hate speech involving illegal conduct is not protected by the First Amendment. So hate speech – while reviled, offensive, and morally repugnant to most – may be protected. But the First Amendment does not protect conduct just because it is motivated by an individual’s beliefs or opinions. Thus, hate crimes – acts or conduct motivated by a speaker’s beliefs – may be regulated and governed by the law and are not subject to protection by the First Amendment. For example, vandalizing a person’s car with racial epithets or raising a bat with the intent to intimidate a person based on his or her race or national origin may constitute vandalism and assault, respectively, and are hate crimes unprotected by the First Amendment.

The State of Idaho has embraced this principle, and even the principle that some speech, inciting or provoking action but without action, can be a violation of the law. Within Title 18 of the Idaho Code, entitled Crimes and Punishments, the Idaho Legislature adopted Idaho Code §18-7901, relating to “malicious harassment,” which states: “…it is the right of every person regardless of race, color, ancestry, religion or national origin, to be secure and protected from fear, intimidation, harassment, and physical harm caused by the activities of groups and individuals.”

Furthermore, this provision provides: “…the advocacy of unlawful acts by groups or individuals against other persons or groups for the purpose of inciting and provoking damage to property and bodily injury or death to persons is not constitutionally protected, poses a threat to public order and safety, and should be subject to criminal sanctions.”

Boise State University offers tools and mechanisms to address words or actions that impact campus climate or violate the Statement of Shared Values, the Statement of Diversity and Inclusion, and/or university policies.

Students who encounter intimidating or offensive speech are encouraged to reach out for support and/or report it to the Office of Institutional Compliance if you believe it may constitute a policy violation.

Students who believe conduct during free speech activities violates one or more criminal laws, including Idaho Code §18-7901, should contact the Boise Police department at 911, campus security at 6-6911 (208-426-6911) or in the event of a non-emergency, call Boise Police non-emergency dispatch at 208-377-6790.

An online reporting hotline is available through the Office of Institutional Compliance and Ethics.

When does speech become harassment?

Not all offensive speech that a person feels harassed by actually constitutes “harassment” which is prohibited by University policy. There is a legal test for when offensive speech which rises to the level of “harassment” and is not protected by the First Amendment.

To constitute “harassment,” conduct must demean or show hostility or aversion toward an individual because of protected class status and must be sufficiently severe or pervasive to create an intimidating, hostile or offensive environment for academic pursuits, employment, or participation in university sponsored activities.

In addition, Idaho Code §18-7901 imposes criminal sanctions upon those who – for the purpose of inciting and provoking damage to property and bodily injury or death – advocate unlawful acts against a person or group based on race, color, ancestry, religion or national origin.

The university takes allegations of harassment seriously and has a process for investigating complaints of harassment and determining sanctions if conduct does constitute harassment.

Whether conduct constitutes harassment is determined on a case by case basis considering the aggressor, the target, the conduct, and the effects.

You can read Boise State’s Non-Discrimination and Harassment Policy, which includes the definition of harassment and the procedure for reporting harassment.

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).

Every social media platform requires the user to agree to certain terms and conditions, which may serve to regulate the speech in a way that the social medium itself deems appropriate. So a platform can and often does take action to remove or hide from view those social media statements that violate its terms of use.

Are chalking and posting permitted on campus?

Applying chalk on concrete walkways on campus is permitted under the same rules as other free expression. More specifically, the application of chalk cannot disrupt university functions; if it is commercial in nature, it needs to be approved; it cannot be obscene or threatening, etc. Additionally, persons who use this form of speech should understand its transitory nature. Even without action to remove chalk, it might be blurred, or otherwise modified or removed with pedestrian movement, or even inclement weather, or other factors, and as a result, speech may not have its intended consequence or reach its intended audience.

Placing temporary signage outdoors is also allowed on campus, subject to those same regulations (it cannot impede vehicular or pedestrian traffic or disrupt university functions; if it is commercial in nature, it needs to be approved; it cannot be obscene or threatening, etc.) If you want to place a sign on campus, it is a good idea to check with University Event Services to make sure that you have either reserved a space to place it or that you won’t be placing it in a space that someone else has already reserved. Finally, University Event Services will coordinate with Landscape Services if you want to place signs in the grass – that it to make sure that the signs will not get wet or interfere with the mowing schedule.

For the purpose of posting signs and banner outdoors, kiosks are provided for the purpose of promoting activities and services of recognized student organizations and university departments. In order to protect the personal property of students, employees, and visitors of the university, and the physical assets of the university, all other outdoor posting is not permitted, including, but not limited to, posting on vehicle windshields or trees, or affixing materials to light posts or to the exterior of any other university structure.

For the purpose of posting indoors, bulletin boards are provided both for recognized student organizations and university departments and for the public. The University may post notices regarding university business or display advertising by the holders of media rights and sponsorships, or other exclusive contracts. All other indoor posting is not permitted, including, but not limited to, posting on walls, doors, whiteboards, or inside bathroom stalls.

University personnel may remove materials posted in violation of policy.

You can read Boise State’s policy on Use of University Space, which outlines posting guidelines.

What is academic freedom?

Academic freedom is the First Amendment free speech principle applied in the scholarship and teaching setting. Academic freedom ensures freedom of inquiry and research, freedom of expression in the pursuit of academic publication, and the provocation of debate and thought in the pursuit of teaching.

Academic freedom protects the legitimate development and exploration of ideas in the academic environment by a University faculty member, made in furtherance of the institution’s educational mission, but free from any political, cultural, and organizational intimidation. Academic freedom gives the faculty member the full range of motion in academic viewpoints and in discussing matters – sometimes controversial and emotion-filled – in academic pursuit, and in stirring the mind and engaging civil discourse and debate.

You can read the Preamble to the Boise State Faculty Constitution, which also discusses the concept of academic freedom.