Freedom of Speech at WSU

The First Amendment, ratified in 1791 as part of the Bill of Rights, protects several fundamental freedoms to a democratic society. It 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 peaceably to assemble, and to petition the Government for a redress of grievances.

United States. (1789). The Constitution of the United States.

The First Amendment protects certain forms of speech. Protected speech can include verbal, written, symbolic, and expressive conduct such as art, music, and demonstrations, including:

• Freedom of Speech: The First Amendment protects the right of individuals to express themselves freely, including opinions, beliefs, and ideas, without government interference or censorship. This protection extends to various forms of expression, including spoken, written, symbolic, and expressive conduct.
• Freedom of the Press: The First Amendment safeguards the freedom of the press, allowing journalists and media organizations to gather and disseminate news and information without government censorship or prior restraint. This freedom is essential for ensuring an informed public and holding government officials accountable.
• Freedom of Religion: The First Amendment protects the rights of individuals to practice their religion freely, including the freedom to worship according to their beliefs or to refrain from religious practices altogether. It prohibits the government from establishing an official religion or favoring one religion over others.
• Freedom of Assembly: The First Amendment guarantees the right of individuals to assemble peacefully and to engage in collective action, such as protests, rallies, and demonstrations, to express their grievances and advocate for social or political change. This freedom allows citizens to voice dissent and participate in democratic processes.
• Right to Petition: The First Amendment guarantees the right of individuals to petition the government for a redress of grievances, including the right to address grievances directly to government officials or to seek legal remedies through the courts. This right enables citizens to seek accountability and justice for perceived injustices or violations of their rights.

WSU is committed to fostering an environment that encourages the free exchange of ideas, robust debate, intellectual exploration, and promoting the rights afforded by the First Amendment of the Constitution of the United States and Article I, Section 5 of the Washington State Constitution. WSU supports and promotes each individual’s right to express their views and opinions for or against actions or ideas in which the individual has an interest, to associate freely with others, and to assembly peacefully, regardless of the degree of acceptability among others of the views or opinions advocated. Protecting speech leads to:

• Preserving democracy: Protecting speech rights is essential for maintaining a healthy democracy and promoting civil engagement. Individuals should feel empowered to express their opinions on matters of public concern without fear of censorship or reprisal.
• Fostering diversity of thought: Protecting speech ensures that diverse perspectives and ideas can be openly discussed and debated, enriching the academic environment and promoting intellectual growth.
• Encouraging critical thinking: By allowing individuals to express their opinions freely, even those that may be contentious or challenging, protected speech encourages people to think critically, analyze information, and develop their own beliefs and values.
• Promoting social change: Throughout history, protected speech has been instrumental in advancing social justice causes and bringing about positive change. Activism and advocacy play a crucial role in addressing issues such as discrimination, inequality, and injustice.
• Preserving academic freedom: Universities serve as forums for the exchange of ideas and the pursuit of knowledge. Protecting free speech rights ensures that faculty, students, and staff can engaged in scholarship inquiry, research, and teaching without fear of censorship or reprisal.
• Promoting transparency and accountability: Whistleblower protections encourage employees to report wrongdoing and hold employers accountable for illegal or unethical conduct. By speaking out against misconduct, employees help prevent harm to individuals, organizations, and the public interest.
• Ensuring fair treatment: Protecting employees’ and students’ rights to discuss wages, working conditions, academic conditions, and other relevant matters fosters transparency and fairness.

Protecting speech may at times mean protecting speech that is offensive or harmful. Protecting such speech can often feel counter-productive to building a civil and just community. However, allowing the government to decide what types of speech are “harmful” can lead to tyranny. For example, what if the dominant political party decides that saying anything negative about them is treasonous? History is rife with examples of governments punishing citizens for speaking out against their governments or holding views in opposition to the majority view. Protecting speech is fundamental to a democratic society.

To suppress free speech is a double wrong. It violates the rights of the hearer as well as those of the speaker.

Frederick Douglass (1860).

Allowing many different forms of speech, including those that may be offensive to individual listeners, creates what has been referred to as the “marketplace of ideas.” Justice Oliver Wendell Holmes Jr. presented this idea that the free flow of ideas allows for competition and community assessment.

… the ultimate good desired is better reached by free trade in ideas – that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes can be carried out. That, at any rate, is the theory of our Constitution.

Abrams v. United States (1919).

Broadly speaking, the First Amendment protects all types of speech, but exceptions do exist. Types of speech that are not protected by the First Amendment include:

• Incitements 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 U.S. Supreme Court has determined 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 urges 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.
• Fighting words: Speech that is personally or individually abusive and is likely to incite imminent physical retaliation.
• True threats: Statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful 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) in order to communicate a true threat. For example, if a group of students yelled that they were going to physically assault a particular student, and that student reasonably feared for their safety, such speech would not be protected.
• Obscenity: Speech or materials may be deemed obscene (and therefore unprotected) if the speech meets the following (extremely high) threshold: It (1) appeals to the “prurient” interest in sex, (2) is patently offensive by community standards and (3) lacks serious literary, scientific or artistic value.
• Defamation: An intentional and false statement about an individual that is publicly communicated in written (called “libel”) or spoken (called “slander”) form, causing injury to the individual. However, opinions, rhetorical hyperbole, and statements of parody or satire are generally protected under the First Amendment.
• Discriminatory harassment: Intentional, unwelcome, and discriminatory harassment based on someone’s membership in, or perceived membership in, a protected class in violation of anti-discrimination laws or policies (see WSU’s Policy Prohibiting Discrimination and Harassment for a list of protected classes and the complete definition of discriminatory harassment). This behavior can manifest in various forms, including verbal insults, threats, intimidation, ridicule, offensive jokes, physical gestures or violence, and microaggressions.
• False advertising: A knowingly untruthful or misleading statement about a product or service.
• Certain symbolic actions: Actions which are illegal, such as tagging, graffiti, littering, or burning a cross on private property.
• Child pornography
• Interference with medical treatment: Speech that interferes with the treatment of patients.
• Invasions of privacy: And unjustifiable invasion of privacy or confidentiality not involving a matter of public concern.
• Material and substantial disruption: Any action that materially and substantially disrupts the functioning of the university or that substantially interferes with the protected free expression rights of others.

Historically, the Supreme Court has defined these terms very narrowly, limiting the authority of the government and public official to prohibit or prosecute speech, even if it appears to fall into one of these categories.