At Washington State University, freedom of speech and expression are essential to who we are. We aspire to be an affirming community that encourages respect and learning where we can engage in diverse viewpoints. While the first amendment affirms our right to say and/or write nearly anything, being a part of the Coug community means that we think about others and how we may isolate or marginalize them through our words and actions.
This page contains information and resources related to how we work to create and support an environment where freedom of speech and expression thrive. Building and sustaining a WSU community that is caring, equitable and just, and supporting freedom of speech and expression are not mutually exclusive. Freedom of speech and expression are often associated with hate speech, but throughout the history of the United States, marginalized groups have exercised their first amendment rights to activate change.
Free Speech and the First Amendment
What is freedom of speech, and what does it protect?
Freedom of speech is the right of a person to articulate opinions and ideas without interference, retaliation or punishment from the government. In this context, the term “speech” is not limited to spoken words; it also includes symbolic speech, such as what a person wears, reads, performs, protests and more. Freedom of speech is strongly protected by the First Amendment of the United States Constitution, as well as many state and federal laws. The United States has some of the strongest free-speech protections in the world, and they help form the bedrock of our democracy. The First Amendment protects even speech that many would see as offensive or hateful.
Which types of speech are not protected by the First Amendment?
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 the following:
- 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 Supreme Court of the United States 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 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.
- 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 his or her 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 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.
- Discriminatory Harassment: Unwelcome, intentional conduct, on the basis of membership in a protected class. Harassment must include something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive. The conduct must also be considered sufficiently serious (severe or pervasive and objectively offensive) to deny or limit a student's ability to participate in or benefit from the educational program. The conduct must be evaluated from the perspective of a reasonable person in the alleged victim’s position, considering all the circumstances.
- False advertising: A knowingly untruthful or misleading statement about a product or service.
- Certain symbolic actions: But only if the actions are otherwise 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.
- Invasion of privacy: An unjustifiable invasion of privacy or confidentiality not involving a matter of public concern.
- Material and substantial disruption: An 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 officials to prohibit or prosecute speech, even if it appears to fall into one of these categories.
What is “hate speech”? Is it protected under the First Amendment?
The term “hate speech” is often misunderstood. Hate speech is not a separate category of speech under the law. The term refers to speech that insults or demeans a person or group of people on the basis of attributes such as race, religion, ethnic origin, sexual orientation, disability or gender. Justice William Brennan wrote in the Supreme Court’s decision in Texas v. Johnson (1989):
“If there is a bedrock principle underlying the First Amendment, it is that government may not prohibit the expression of an idea simply because it finds it offensive or disagreeable.”
More recently, Chief Justice John Roberts wrote in Snyder v. Phelps (2011):
“Speech is powerful. It can stir people to action, move them to tears
of both joy and sorrow, and — as it did here — inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course — to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”
While Washington State University condemns speech of this kind, hate speech is only unprotected if it falls into one of the categories described above (e.g., “fighting words” or “true threats”). Although this may be difficult to understand or accept, even speech that is hateful or offensive is still likely protected by the First Amendment. However, just because there is a First Amendment right to say something, that doesn’t mean it should be said. The First Amendment protects a right to say hateful things, often even when they stand in direct opposition to Washington State University’s values of diversity, inclusion and mutual respect. However, as a campus, we must always strive to ensure an environment where all students, faculty and staff are welcomed, respected and supported, and where members of this community are tolerant of the ideas and expression of others.
In addition, the First Amendment does not protect actions just because they are motivated by an individual’s beliefs or opinions. Therefore, even though hate speech is protected by the First Amendment, “hate crimes” may be regulated by Washington and federal criminal laws.
Are nonverbal symbols, such as swastikas or burning flags, constitutionally protected?
It depends. The courts have held that burning the American flag is protected speech (Texas v. Johnson (1989)), and so is wearing armbands to protest a war (Tinker v. Des Moines Independent Community School District (1969)). However, the First Amendment does not protect the use of nonverbal symbols to directly threaten an individual or encroach upon or destroy private property. Examples might include hanging a noose above a dorm room door or spray-painting swastikas on the library wall.