The First Amendment gives Americans the right to express themselves, free from governmental censure, but it does not mean freedom from consequences.
There has been a lot of debate around the limits of free speech in the United States, especially for students. For example: Is free speech protected on college campuses? And what is not protected by the First Amendment?
In short, college students have rights on campus, but colleges can also restrict those rights. Under the law, students at public colleges and universities have a right to freedom of speech. However, these protections do not apply at private colleges, since they are not government entities.
Our guide to free speech walks through First Amendment protections, the definition of free speech, and limits to free speech rights. We also look at free speech on college campuses, including the right to protest and the differences between public and private colleges.
What, Exactly, Is "Free Speech?"
Free speech, also known as freedom of speech, is protected by the First Amendment. But free speech rights do not allow people to say whatever they want with no consequences. Instead, free speech protects people from government actions based on their words or actions, such as making transgressive art or choosing not to salute the flag.
The First Amendment restricts the government from arresting or fining people for protected speech or activities. The government also cannot make laws that violate people's free speech rights. However, the First Amendment does not restrict what private businesses, individuals, or even most colleges can do.
Free Speech Defined
"Free speech, or freedom of speech, means the words Americans can use and the actions they can take to express themselves that are protected by the First Amendment of the U.S. Constitution."
With a few notable exceptions, this means that Americans can speak (or not) and take action (or not), and the government cannot put them in jail or impose fines or legal obligations.
But freedom of speech only protects us from consequences from the government. It does not extend to private entities, including other people, your employer, other businesses, or your school.
What Does the First Amendment Say?
The First Amendment places limits on what the government can do in response to individual expression. Most notably, it protects freedom of religion, freedom of speech, freedom of the press, and the right to protest.
However, the amendment states only that "Congress shall make no law" limiting religion, speech, the press, or the right to assemble. The First Amendment does not protect speakers from all consequences of their actions. For example, it does not apply to consequences from private citizens or private companies.
First Amendment to the Constitution of the United 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."
Source: Library of Congress
What Is Not Protected by the First Amendment?
The First Amendment does not protect all forms of speech. Centuries of jurisprudence have placed limits on free speech rights.
For example, child pornography does not fall under First Amendment protections. Neither does defamation or fraud, including perjury. Inciting someone to commit a crime or speech related to criminal conduct, including threats, also do not fall under free speech protections. Most famously, the Supreme Court ruled that shouting "fire!" in a crowded building does not fall under free speech rights.
The line between protected and not protected speech can be a matter of interpretation. For example, the courts have ruled that "patently offensive" language does not qualify for free-speech protections, but the definition of obscenity changes over time.
Nine Categories of Content Not Protected by the First Amendment
- Child pornography: sexual exploitation of a minor
- Defamation: libel is written defamation, while slander is oral defamation
- Fighting words: inflicting injury or breaching the peace
- Fraud: perjury, filing false police reports, and deceptive business practices
- Incitement: encouraging or making someone else carry out illegal activity
- Obscenity: language rising to the level of "patently offensive"
- Speech integral to criminal conduct: solicitation, criminal conspiracy
- True threats: threatening communication not made in jest
However, freedom of speech does not mean freedom from the consequences of that speech. The First Amendment does not bind everyone; it only places restrictions on government actions. Thus, anyone can criticize another person for their speech, and that's not a violation of the First Amendment.
Similarly, in the private sphere, businesses can (and do) restrict speech. For example, social media platforms can ban users who violate terms of service, and private companies can fire employees because of offensive speech.
Free Speech on College Campuses
The free speech protections in the First Amendment are a core value in the United States, but is free speech protected on college campuses? What rights do college students have when it comes to freedom of speech?
The answers are more complicated than most students think. Free speech laws depend on the type of campus, the form of speech, and the school's own rules. In practice, institutions sometimes restrict free speech even though, legally, certain colleges must allow it. And free speech does not mean students can say anything; certain types of speech do not fall under First Amendment protections, including inciting violence.
Is Free Speech Protected on College Campuses?
College campuses encourage intellectual debate and an exchange of ideas. In practice, however, most colleges place some restrictions on free speech. For example, many schools restrict offensive language or the use of slurs on campus. But do colleges have a right to limit offensive or derogatory speech, even if the First Amendment protects it?
Student opinions on free speech show a split. According to a 2020 Gallup poll, 96% of college students say freedom of speech is important to democracy, yet 78% support banning racially offensive speech. While racial slurs directed at a person are considered "fighting words" and thus not protected speech, the First Amendment does protect the use of slurs in a generalized way, such as in a chant at a rally (Cohen v. California).
Enforcing the First Amendment on college campuses also depends on the campus. Public colleges and universities receive funding from the government, so under the law, they are government entities and cannot restrict speech rights on campus. In contrast, private colleges are not part of the government, so they do not need to follow the First Amendment protection. Thus, private colleges can restrict speech.
What About Campus Protests?
Free speech and the right to protest go hand-in-hand. Historically, campus protests have successfully fought for civil rights, voiced opposition to wars, and pushed for better campus policies. The First Amendment covers the "right of the people peaceably to assemble," which includes the right to protest. But can colleges restrict the right to protest on campus?
In practice, colleges do restrict campus protests by denying permits to protest on campus or restricting protests to "free speech zones." Legal rulings have deemed these policies unconstitutional if they are overly broad or too restrictive, but many schools continue to place restrictions on campus protests and other student assemblies.
As with free speech, the right to assemble depends on the school. Private schools have more latitude to restrict student activities, including protests. Public schools, on the other hand, cannot restrict their students' First Amendment rights.
What's In the Free Speech on College Campus Executive Order of 2019?
In 2019, former President Trump issued an executive order titled Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities. This executive order restricts federal funding for colleges and universities that enforce speech codes or other restrictions on free speech. For example, under the order, public colleges that restrict speech by banning "offensive remarks" could lose funding.
The executive order did not change existing laws protecting speech on campus — public colleges were already legally obligated to protect free speech on their campuses. However, it ties enforcement to federal funding as a way to incentivize institutions to end policies restricting speech. Opponents worry that this executive order could be used to target colleges on a political basis or stifle freedom of expression.
President Biden has not yet changed this rule, though the American Association of University Professors urged him to overturn the free speech college campus executive order.
Where Does Academic Freedom Fit In?
Academic freedom protects students and academics from censorship or punishments for their personal beliefs. But how does academic freedom relate to free speech? Well, the two concepts work hand-in-hand to limit restrictions on people's speech.
Academic freedom is a mechanism typically enforced by accrediting bodies and some case law that protects students' right to debate ideas in class and disagree with their classmates without academic reprisal. Free speech protections, by contrast, keep public colleges from restricting student speech more generally.
However, academic freedom is not a legal right like freedom of speech. It is only enforced by accreditation standards, social norms, and some limited case law. Private colleges can restrict student speech, and many public colleges also place restrictions on speech.
What Is Academic Freedom?
Academic freedom typically refers to the right of students and teachers in higher education to learn and teach without undue interference. This freedom protects learners and instructors in their research and inquiry without the threat of censorship or reprisal. Academic freedom does not mean that other students or professors cannot question, challenge, or disagree with their findings or their methods.
For professors, academic freedom typically means the right to set course content, teaching methods, and the way they conduct their scholarship — including their research, writing, speaking, and teaching.
For students, this means the right to select their own field of study and lines of inquiry, draw connections between their courses and other experiences, and challenge others' viewpoints in the classroom, on campus, and in writing.
First Amendment on College Campuses
College students have First Amendment rights, like everyone else in the United States. However, there are limits on free speech. Private colleges can restrict speech, and in practice, many public colleges also place limits on student speech. Here are some points to keep in mind.
- "Freedom of speech" does not mean freedom from consequences. The First Amendment does not protect people from every possible consequence of their speech. It only protects from government retribution for speech or protected activities.
- The First Amendment only applies to the government. Private individuals and businesses, including private universities, can limit speech.
- Free speech does not cover all types of speech or activities. For example, the First Amendment does not cover obscenity, illegal speech, or incitement, including shouting "fire!" in a crowded building.
- Public colleges and universities cannot restrict free speech rights. However, many institutions do place limits on offensive speech, in spite of the First Amendment.
- The First Amendment also protects the right to protest. Public colleges cannot overly limit the spaces on campus where students can protest.
Frequently Asked Questions
Public colleges and universities must uphold freedom of speech protections on campus, since they are considered government entities. However, private colleges can restrict speech.
A speech code restricts speech that would be free under the First Amendment. For example, some colleges enforce a code banning "offensive remarks."
The courts have found campus speech codes unconstitutional on public campuses. However, private colleges can restrict speech.
Genevieve Carlton holds a Ph.D. in history from Northwestern University and earned tenure as a history professor at the University of Louisville. An award-winning historian and writer, Genevieve has published multiple scholarly articles and a book with the University of Chicago Press. She currently works as a freelance writer and consultant.
Header Image Credit: fizkes | Getty Images
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