What is the source of our free speech rights?
Free speech rights emanate from the First Amendment to the Constitution and from state constitutions. The Federal Constitution limits government action and applies to all public/state colleges and universities. It serves as a floor, not a ceiling. State constitutions may grant more robust free speech rights than the Federal Constitution, but never fewer.
Is there a distinction between private and public universities?
Unlike public universities, private schools are not directly bound by the First Amendment. They generally have much more leeway to limit speech. However, private universities may be bound by the contractual obligations that they undertake with their students and faculty. Many institutions promise freedom of expression in university promotional materials and in student conduct policies. Furthermore, the vast majority of private universities pride themselves on being bastions of free thought and expression.
Is all speech protected?
No. There are several types of speech, including obscenity, defamation, invasion of privacy, true threats, harassment and incitement to imminent illegal activity, that are not protected by the First Amendment.
Preventing authorized speakers from talking is not protected by the First Amendment. This is often referred to as the “heckler’s veto.” When campus authorities or police allow dissenters to drown out someone’s speech or prevent someone from speaking, they are allowing protestors to silence that speaker, and thus fail to protect the constitutional rights of both the speaker and the audience. For example, the actions of the protesters who shouted down an Israeli speaker would not be protected by the First Amendment.
Can a university impose restrictions on protected speech?
University campuses are typically considered limited/designated public forums by the courts. This means that the government can choose whether or not to open the forum (such as a campus) to speech. Once the campus is opened to one type of protected speech, it will be treated as a public forum.
In a public forum, restrictions are permitted as long as they are unrelated to the content of the message (content-neutral restrictions). For example, a university can impose time, place and manner restrictions. “Speakers may use amplified sound on the quad between noon and 1 p.m.” meets the content-neutral restriction requirement because there is a time (noon to 1 p.m.), place (quad) and manner (amplified sound) specified, all of which are unrelated to the content of the message.
By contrast, content-based restrictions are subject to “strict scrutiny,” the most rigorous form of judicial review. Content-based restrictions come in two forms: subject-matter restrictions and viewpoint-based restrictions. An example of a subject-matter restriction is a ban on all discussions on the Israel-Palestinian conflict or a ban on all immigration protests. An example of a viewpoint-based restriction is a ban on all pro-Israel speakers or a ban on all anti-DACA speakers. These types of restrictions infringe on free expression and are prohibited by the Constitution unless they can meet strict scrutiny.
Is hate speech protected speech?
Yes. Hate speech is protected speech and may not be shut down. “If there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought — not free thought for those who agree with us but freedom for the thought that we hate.”
At the same time, hate speech has a harmful impact, and must not go unanswered by university leaders, faculty and staff. Universities should have clear policies and guidelines about free speech and should be prepared to respond in the face of hateful rhetoric.
In some instances, hate speech may cross the line into unprotected speech, such as true threats, harassment or incitement of imminent illegal activity.
What is Title VI and how does it relate to free speech?
Students should be aware of their rights under the Civil Rights Act of 1964. Title VI of the Civil Rights Act “prohibits discrimination based on race, color, or national origin in programs or activities receiving federal financial assistance.” Title VI applies to educational institutions that receive federal funding. This includes all public colleges and universities as well as private colleges and universities that receive assistance by participating in federal student aid programs.
While religion is not directly mentioned, both the Department of Justice and the Department of Education have concluded that Title VI also prohibits discrimination against Jews, Muslims, Sikhs and members of other religious groups when the discrimination is based on the group’s actual or perceived shared ancestry or ethnic characteristics, or when the discrimination is based on actual or perceived citizenship or residence in a country whose residents share a dominant religion or a distinct religious identity.
Harassment that creates a hostile environment for individuals with a shared ancestry, such as Jewish students, can be a form of national origin discrimination. A college or university’s failure to address harassment that creates a hostile environment may be in violation of Title VI. Racial or national origin harassment creates a hostile environment if the harassment denies or limits a student’s ability to participate or benefit from educational programs and activities. Under Title VI, colleges and universities must take prompt action to end the harassment and eliminate the hostile environment.
Where can I find additional information on Title VI?
For additional information, please contact your campus Hillel or regional ADL office. Please visit the U.S Department of Education’s Office for Civil Rights website for information on how to file a discrimination complaint.
How can universities and other members of the campus community respond to constitutionally protected speech that is offensive and hurtful?
Universities have their own right to speak and should respond to offensive discourse vigorously in order to assure members of their community that the campus is a safe and inclusive place. This requires being equally concerned about and responding to instances of bias directed against any group on campus. For instance, when anti-Israel bias or anti-Zionist rhetoric crosses the line into antisemitism by holding all Jews responsible for the actions or Israel or by invoking traditional antisemitic symbols, images, tropes and theories, universities should speak out. Responses should be based on the incident itself — not the group identity of the targets. If possible, the administration should consult with the impacted community.
The most effective responses to hate speech are timely, specific and direct. For example, after a white supremacist group posts leaflets with hateful language and symbols across the campus, a university’s response should be clear and directly address the individual, emotional and communal harm caused by this incident.
Members of the community, including student organizations and campus Jewish life organizations such as Hillel, can also engage in counterspeech in response to anti-Israel bias or rhetoric on campus. Counterspeech provides individuals with an opportunity to exercise their free speech rights without taking away anyone else’s.
Are academic freedom and free speech interchangeable? If not, how are they different?
Academic freedom and free speech rights under the First Amendment are two related but analytically distinct concepts. Academic freedom addresses the right of universities to determine for themselves: 1) who may teach; 2) what may be taught; 3) how it should be taught; and 4) who may be admitted to study. Academic freedom is important because it allows professors and students to critically explore unpopular or controversial ideas without fear of reprisal. For example, there is nothing wrong with professors expressing their views about the Israeli-Palestinian conflict. However, those views should not be imposed on students and alternative perspectives should not be silenced in an academic discussion. In addition, there should not be negative academic consequences for students who voice disagreement.
Academic freedom has a number of sources. The specific protection it affords will vary according to state law, institutional customs and policy, and whether an institution is public or private.
What other factors should students and universities consider?
- Have campus stakeholders been educated about free speech in the university setting, including issues of academic freedom?
- Does the university have clear policies about what spaces on campus are open for speech and for whom? This should include:
- Clear time, place and manner restrictions
- Clear guidance about when/if a permit is needed for speech-related activities and how to obtain such a permit
- Whether outsiders are treated differently than members of the campus community
- Do campus administrators and law enforcement work with student groups in advance of speakers coming to campus?
- The host group and other groups that may be impacted by the content of the speech should be included.
- How is the level of security needed at an event assessed?
- Is there a consistent university policy for handling counter-protesters, including where they should stand and the point at which a disruption becomes a heckler’s veto?
How can universities support students who are impacted by hate speech?
Universities can undertake other efforts to protect students from microaggressions and the impact of hate speech. Universities should have clear definitions of what constitutes harassment and a clearly outlined complaint procedure. A campus Diversity, Equity, Inclusion (DEI) department should be prepared to support students in these situations.
 Amendment I. “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 assembly, and to petition the government for a redress of grievances.”
 Except for California which has a statute that applies the First Amendment to private universities and colleges (see California Education Code § 94376).
 Under strict scrutiny, a restriction must be narrowly tailored and further a compelling government interest. See e.g., Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 655 (1990).
 United States v. Schwimmer, 279 U.S. 644 (1929) (Holmes, J., dissenting).
 Sweezy v. New Hampshire, 354 U.S. 234 (1957).