Free Speech FAQs

What does the First Amendment protect?

The First Amendment to the United States Constitution states, “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 to peaceably assemble, and to petition the government for a redress of grievances.” The First Amendment’s protection of the “freedom of speech” includes the freedom to assemble or protest. This means that people can generally express their opinions, point of views, and ideas without government interference or retaliation. The term “speech” includes all forms of expression—including verbal speech, printed words, and expressive and symbolic speech. 

Does the University have to protect free speech?

Yes. The U.S. Supreme Court has held that the First Amendment prohibits governmental entities from unlawfully restricting free speech. As a public university, UA is subject to the First Amendment. In addition, Section 16-68-3 of the Code of Alabama requires public colleges and universities to implement a policy on free expression providing, among other things, “[t]hat it is not the proper role of the institution to shield individuals from speech protected by the First Amendment to the United States Constitution and Article I, Section 4 of the Constitution of Alabama of 1901, including without limitation, ideas and opinions they find unwelcome, disagreeable, or offensive.” The University of Alabama System Board of Trustees has codified UA’s longstanding practice of institutional neutrality.

Are certain types of speech not protected by the First Amendment?

Yes, exceptions do exist. Historically, the U.S. Supreme Court has defined these exceptions narrowly, limiting the authority of the government and public officials to prohibit or prosecute speech.

Types of speech not protected by the First Amendment include, but are not limited to, the following:

• Incitement of violence or lawless action: There is no right to incite people to break the law, including to commit acts of violence. For an action to constitute incitement, the Supreme Court has determined there must be a substantial likelihood of imminent illegal activity, and the speech must be directed at 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.

• True threats: Statements through which the speaker means to communicate a serious expression of an intent to commit an act of unlawful physical violence to a particular individual or group of individuals. The speaker does not have to act on their words (e.g., commit a violent act) to communicate a true threat. For example, if a group of students yelled at another student in a menacing way that would cause the student to fear a physical assault, such speech would not be protected.

• Obscenity: Speech or material may be deemed obscene if it appeals to the “prurient” interest in sex, is patently offensive by community standards, and lacks literary, scientific, political, or artistic value.

• Defamation: An intentional and false statement about an individual that is publicly communicated in written or spoken form, causing injury to the individual. Statements of opinion generally do not meet the definition of defamation.

• Illegal Harassment: Conduct based on a federally protected category (such as race, sex, religion, ethnicity, etc.) that is severe or pervasive and objectively offensive to the point of undermining and detracting from the victim’s educational experience effectively denying the victim equal access to an institution’s resources and opportunities. Isolated pure speech or expression is unlikely to constitute harassment on its own. Illegal harassment is speech or conduct targeted, discriminatory, and typically part of a larger pattern of behavior that hinders the educational experience of the targeted individual. 

• False advertising: A knowingly untruthful or misleading statement about a product or service.

• Child pornography

Is there a hate speech exception to the First Amendment?

No. There is no hate speech exception to the First Amendment. Speech that is hateful, offensive, or inconsistent with the University’s values is nonetheless protected speech under the First Amendment unless it falls into one of the recognized exceptions.

The best response to speech a listener finds offensive is civil counter-speech. Shouting the speaker down or otherwise attempting to disrupt or interfere with the speaker’s right to speak and the audience’s right to hear (the so-called “heckler’s veto”) is not permissible.

However, the mere fact of a First Amendment right to say something doesn’t mean it should be said. The First Amendment protects the right to say hateful things, often even when those statements stand in direct opposition to UA’s values. As a campus, we must always strive to create an environment where all members are welcomed, respected, and supported.

Can the University impose limits on protected speech activities?

Yes, if those limitations are reasonable and not based on viewpoint or content. The courts have held that public entities like UA have discretion in regulating the “time, place, and manner” of speech. The right to speak on campus is not a right to speak at any time, at any place, and in any manner. UA can impose reasonable, content-neutral regulations on expressive activity to maintain the proper functioning of the campus and public safety. UA’s Facility and Grounds Use Policy describes the measures used to ensure that expressive activities on campus are properly and legally regulated to maintain safe and orderly campus operations while respecting the right to free speech.  Examples of acceptable time, place, and manner restrictions include permit requirements for speakers, notice periods, sponsorship requirements for outside speakers, limiting the duration and frequency of the speech, and restricting events in close proximity to academic and residential buildings. 

Why does UA allow speakers who promote hateful or offensive viewpoints?

The law prohibits UA, as a public institution, from banning or punishing speech based on its content or viewpoint, no matter how repugnant such speech may be. UA also cannot exclude speakers from campus just because the speaker may make statements that offend a particular group or individuals. Similarly, UA will not cancel properly registered events due to members of the campus community having strongly held concerns, however legitimate, about a speaker’s viewpoint.

Protecting free speech as a fundamental right means UA must allow different viewpoints to be expressed, even views that contradict the values of UA and the campus community. Invitations to speak on campus given by student organizations and other groups should not be viewed as an endorsement of the speaker’s views by UA.

What are the rules that apply to events on campus?

Use of UA facilities or grounds by persons, groups, or organizations will be handled in accordance with the Facility and Grounds Use Policy. UA considers all requests and does not impose restrictions based on the event’s content or the viewpoint of any speaker.

Can anyone hold an event on campus?

No. Campus spaces are available for use by members of the University community (i.e., UA faculty, staff, and students; a UA academic or administrative department; or a registered student organization). Campus spaces are generally only available for use by outside groups and individuals if the event is sponsored by a member of the UA community.

What about classroom speech and university employees’ speech?

All University faculty, instructors and teaching staff have the academic freedom to explore, discuss, and provide instruction on a wide range of topics in an academic setting. Though students may be asked to share their personal views in the academic setting, no student will ever be required to assent or agree with any concept considered “divisive” under Alabama law, nor penalized for refusing to support or endorse such a concept. All students are strongly encouraged to think independently and analytically about all material presented in class and may express their views in a time, place, and manner, consistent with class organization and structure, and in accordance with the University’s commitment to free and open thought, inquiry, and expressions. 

Can the University take action if someone posts offensive or false messages on social media?

It depends. The First Amendment protects freedom of speech, but it does have limits.  The University may take action if the speech constitutes obscenity, incitement of illegal acts or violence, specific threats of physical violence or intimidation, or violates UA’s Harassment Policy.

What can I do if someone is using speech on campus that is hateful or harmful?

There are multiple ways to respond to speech you find hateful or harmful. Some suggestions for responding to objectionable speech include:

• Speak Back. It has often been remarked that the best remedy for speech we dislike, including speech that is hateful or harmful, is “more speech.” Just as individuals have the right to express themselves using hate speech or otherwise offensive speech, an individual also has the right to express why that speech is wrong, poorly reasoned, repugnant, or offensive. Directly countering hateful speech with counterpoints can build awareness, undermine the legitimacy of the objectionable speech, and result in a stronger, more respectful community.
• Don’t Restrict the Free Speech Rights of Others. Individuals on campus have the right to criticize, oppose, and protest the speech of others, as long as they do not obstruct or restrict the ability of anyone else to express their views. The use of violence or disruption to silence a speaker or prevent speech from occurring or continuing is prohibited. For example, shouting down a speaker during an event or physically blocking others from being able to see or hear a speaker essentially suppresses or censors the speaker and could be considered a violation of free speech. While individuals are allowed to peacefully protest, they should never physically engage with speakers in any way. Some speakers may try to provoke a response, but it is very important to not respond in a physical way. Doing so can lead to legal or administrative action.

Notably, forcefully shutting down speech not only violates the constitutional rights of others, but it may have the unintended consequence of making the views of silenced individuals seem more legitimate or misunderstood.

• Disengage. While speakers have the right to speak, others do not have to listen. Denying a speaker the audience they seek by taking an alternative route, walking away, or engaging with others is an effective way to combat objectionable speech.
• Connect with Others. If the views someone expresses on campus are concerning or upsetting, individuals can connect with others on campus with common values and interests, including through student organizations and university departments. Doing so can provide a helpful reminder that no one speaker represents the views of the entire UA community.
• Report any speech or conduct that appears to pose physical danger.  A great deal of incendiary or offensive speech is legally protected, but that protection does have limits. Any physically threatening speech or behavior should be reported to UAPD immediately by calling 911.