As the national election approaches, opinions are seen everywhere and often expressed passionately by Americans. However some people are not fully informed on their freedom of speech rights. On Oct. 20, Noah Brisbin, the Associate System Legal Counsel for the UW System, and Tom Stafford, a Senior System Legal Counsel for the UW System, called a meeting open to students and faculty to discuss freedom of speech and rights here on campus.
In the Wisconsin Constitution it is written, “Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right.”
What kind of speech is covered under the First Amendment of the U.S. Constitution? Courts have defined certain speech as not protected: “obscenity, defamation, fraud, incitement, fighting words, true threats, speech integral to criminal conduct, and child pornography.”
Students still have their constitutional rights to freedom of speech when on campus.
According to the 1969 Tinker v. Des Moines Supreme Court Case ruling, “But conduct by the student, in class or out of it, which for any reason… materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.”
The Supreme Court has protected political speech, including students’ rights to refuse saluting the American flag and reciting the Pledge of Allegiance. The Court even protects the right to desecrate the American flag. “The right to criticize one’s government is of paramount importance,” Brisbin said.
“Hate speech is protected under the First Amendment,” Brisbin mentioned in the meeting. “Defining and regulating offensive speech and hate speech is really difficult, if not impossible… and it would really do a lot to cut back against what the First Amendment means in terms of protection of speech.”
This does not mean anyone is immune from the consequences that follow hate speech, such as social shaming and exclusion. An exception to lawful offensive speech is when it falls under discriminatory harassment (i.e. speech based on characteristics such as someone’s sex or race), breaking a law relating to their presence in a workplace or educational environment.
Sponsor-invited speakers and events on campus are all right as long as the university remains neutral. In essence, if you invite one side to the debate, you have to invite the other.
The government can lawfully restrict speech within the confines of time, place and manner. This means there are certain rules in place restricting speakers from being on campus at 2 a.m., prohibiting speaking inside of residence halls or classrooms and having manner restrictions like no bull horns or noise amplifiers.
“The university can control where it has speakers from the outside who are uninvited. Where they can speak, when they can speak, how they can do that,” Tom Stafford pointed out. As long as it’s not disruptive, expressing political views on campus is appropriate. There are also certain restrictions stemming from UW campus history in the ‘60s and ‘70s, such as not having signs with sticks on them because people have gotten riled up and started hitting each other with them, which became a safety issue.
Jay Hartzell, the president of the University of Texas, wrote an article for The Dallas Morning News, stating, “During these challenging and divisive times, the notion of free speech has become somewhat controversial and politicized. This is a mistake. The freedom to speak and debate is… at the heart of the scientific method and all of the scholarship, creative work, and research that defines a world class university. Free speech is perhaps the greatest right we have as Americans.”