Defining free speech

The Supreme Court first identified the so-called “fighting-words” exception to the First Amendment in 1942. Over the ensuing decades the Court has limited the fighting words doctrine. Generally, unprotected fights words are words that by their very utterance inflict injury and tend to incite an immediate breach of the peace.

There is no list of “fighting words” instead, courts examine the totality of the circumstances and decline to protect clear and directed insults intended to start a fight or lawlessness. Speech can still be protected if it is angry or profane and laws prohibiting fighting words must be very narrowly tailored.

In its most recent case examining “true threats”, the Supreme Court defined unprotected true threats to encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence against a particular individual or group of individuals. The speaker need not actually intend to carry out the threat but the speaker must have spoken with “the intent of placing the victim in fear of bodily harm or death.”

In United States v. Dinwiddie, the federal Eighth Circuit Court of Appeals applied a five-factor test to determine whether speech constitutes a true threat, including:

• (i) the reaction of the recipient of the threat and of other listeners;
• (ii) whether the threat was conditional;
• (iii) whether the threat was communicated directly to its victim;
• (iv) whether the maker of the threat had made similar statements to the victim in the past;
• (v) whether the victim had reason to believe that the maker of the threat had a propensity to engage in violence.

The Supreme Court has struggled to define unprotected “obscenity” for decades. In Jacobellis v. Ohio the Supreme Court noted that in attempting to identify obscenity, the Court “was faced with the task of trying to define what may be indefinable.”

After attempting to approach the issue on a case-by-case basis, the Supreme Court established “basic guidelines” in Miller v. California. 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 (defined as a morbid, degrading and unhealthy interest in sex, as distinguished from a mere candid interest in sex),
• (2) is patently offensive by community standards / applicable state law and
• (3) lacks literary, artistic, political, or scientific value.

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. To be defamatory, a statement must be an assertion of fact (rather than mere opinion) and capable of being proven false. In addition to being false, the statement, to be defamatory, must identify its victim by naming or reasonably implicating the person allegedly defamed.

The Supreme Court has strove to balance the interests of a free press with the privacy and dignity of others. As a person becomes more well-known or takes official positions in the government, the Court has afforded them less protections.

The Supreme Court in Davis v. Monroe County defined unprotected harassment as unwelcome conduct based on an individual’s protected status or perceived protected status that is sufficiently severe, persistent, and pervasive to unreasonably interfere with that individual’s educational (or employment) environment, thereby creating an environment that a reasonable person in similar circumstances and with similar identities would find hostile, intimidating, or abusive.

In determining whether an environment is sufficiently hostile, intimidating, or abusive to constitute prohibited harassment, courts generally consider the totality of the circumstances including the frequency of the discriminatory conduct, the severity of the conduct, whether the conduct is physically threatening and whether the conduct unreasonably interferes with an individual’s educational/employment performance.

Typically, courts find a hostile environment is created when a series of serious incidents based on prohibited animus occurs within a defined period of time and no remedial action is taken to prevent or remediate the conduct. The more severe the conduct, the less need there is to show a repetitive series of incidents to show a hostile environment, particularly if the conduct is physical.

In Tinker v. Des Moines Independent Community School District, the Supreme Court recognized that conduct that creates or reasonably threatens to create a material and substantial disruption to the functioning of a school is not protected under the First Amendment. Courts have applied this standard on a case-by-case basis closely analyzing the specific context of the speech.

Historically, the Supreme Court has narrowly defined speech that is not protected under the First Amendment, thereby limiting the authority of the government and public officials to prohibit or prosecute speech, even if it is unpopular or deeply offends many people.

The University encourages those who wish to counter views they find unacceptable to do so in meaningful ways, including:

• taking part in alternative events; 
• lending their voices to causes with which they are aligned and that help foster a stronger community; 
• or lawfully and actively protesting or speaking out if they desire. 

In order for all voices to be heard, those actively participating should not be violent or threaten violence, disrupt a speaker, damage property or obstruct entrances, exits or vehicular and pedestrian traffic.

Those who study controversial speakers recommend that the most impactful way to combat purveyors of hate is not to engage, because engagement and anger is exactly what they seek.

Unlawful protest on campus can be defined as meeting one or several of the following conditions:

• blocking entrances, stairwells, hallways, sidewalks, active roadways, etc.
• obstructing or impairing authorized activities
• entering a private office, room or meeting space without approval
• signs affixed to University property or grounds without prior permission
• violence or threats of violence against people or property
• using amplified sound when not permitted
• disrupting classes, study or research

If any person or organization violates University Policy by erecting unapproved structures (including tents), the University will typically first request the voluntary removal of the structures. Should voluntary removal not occur, or should circumstances dictate more direct action, the University will remove the structures. Individual and group behaviors may be addressed by the Office of Student Accountability and Conflict Response for students and/or student organizations, or Human Resources for faculty or staff.

Non-University students, faculty, or staff (Visitors) must adhere to the expectations of conduct for all Visitors to University premises outlined in University Policy AD103. Failure to do so may result in enforcement of University Policy AD104 (Trespass Warning Policy). In the event the behaviors/actions of the persons involved rise to the level of criminal behavior, University Police will respond accordingly.

Understanding protections and limitations around freedom of speech in the classroom is critical to our fostering an open exchange of ideas. 

• AC64: Academic Freedom
• Review the Department of Education guidance on free speech

Discover the role that Title IX plays in free speech and expression on campus. 

• Balancing Title IX Digital Guide

• Student Code of Conduct 
• AC76 Faculty Rights and Responsibilities 
• AD02 Non-University Groups Using University Facilities 
• AD02A Supplemental Policy for Speeches, Rallies, and Demonstrations 
• AD29 Statement on Intolerance 
• AD51 Use of Outdoor Areas for Expressive Activities 
• AD57 General Regulations on Use of University Property
• AD64 Academic Freedom
• AD67 Retaliation 
• AD85 Title IX Sexual Harassment 
• AD91 Discrimination and Harassment, and Related Inappropriate Conduct 
• AD103 Visitor Rights and Responsibilities 
  

• Guidelines Regarding Political Activity by Penn State University Faculty and Staff

While free speech is a foundational element of higher education, it is imperative to recognize and address the profound harm that can be caused by hateful speech and symbols of intolerance.  It is the goal of our University to nurture an environment where all individuals feel safe, valued, and respected. Under the law, free speech permits individuals to express themselves in sometimes hateful ways – ways that offend and are contrary to University values. This freedom, however,  must go hand-in-hand with a commitment to combating hate and supporting those who are harmed by it.

• Learn about the intersection of Title VI and the First Amendment

To those who are deeply hurt by such expressions, we want to affirm that your feelings and experiences are valid and important. At Penn State, when speech goes beyond First Amendment rights and crosses into harassment or incitement of violence, we will take swift and appropriate action to protect affected individuals. This includes disciplinary measures against those who violate codes of conduct.

• Reporting bias is easy. If you see something happen or something happens to you, report it. Go to the Report Bias page.