Free Expression at UW–Madison

The First Amendment is a part of the United States Constitution and specifically protects individual rights against government infringement. It prevents the Government from restricting or prohibiting the right of individuals to engage in spoken and written speech, as well as symbolic speech and expressive activity.

Its text reads: 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

Yes.

Although the text of the First Amendment refers to “Congress,” the U.S. Supreme Court has long held that the Fourteenth Amendment “incorporates” the rights contained in the First Amendment, meaning that state and local government entities may not violate those rights. We are a public university and a state entity. Therefore, as a matter of law, the First Amendment applies to UW–Madison and provides all members of the university community with the right to freedom of speech, although it may be restricted in some contexts. UW–Madison’s actions and policies must abide by the requirements of the First Amendment, and it is a violation of the Constitution for the university’s actions or policies to conflict with them.

The First Amendment provides extremely broad protection of individuals’ freedom of speech and expression. These protections even include speech and expression that some find offensive, hurtful or inconsistent with the university’s values. So, under the First Amendment, UW–Madison, as a public university, can’t prohibit, limit, or punish speech or expression based on the viewpoint it conveys.

UW–Madison also can’t restrict speech based on content unless the university demonstrates a compelling governmental interest and only restricts speech as necessary to achieve that interest. If this sounds like a difficult standard to meet, it is. The U.S. Supreme Court intentionally set this bar high to limit the government’s ability to restrict speech because of what it stands for.

Yes, the university can legally place some content-neutral limitations on speech, so long as they are reasonable. “Time, place, and manner restrictions” help to ensure health, safety, and welfare and to prevent disruption of university functions, including but not limited to classrooms, research labs, offices, museums, libraries, and pedestrian or vehicle traffic.

• Time restrictions are those that restrict speech or expression to certain times of day. For example, a policy prohibiting speech in Library Mall between the hours of 10PM and 7AM is a content-neutral time restriction.
• Place restrictions limit the physical or digital spaces in which speech or expression can occur. For example, a policy prohibiting individuals from engaging in demonstrations or protests in classrooms is a content-neutral place restriction.
• Manner restrictions limit the way – or the method by which – speech or expression can be conveyed. For example, a policy prohibiting the use of sound amplifying equipment by those speaking in Library Mall is a content-neutral manner restriction.

The First Amendment permits more leeway for the government to limit speech in these content-neutral ways because the restrictions are independent of the government’s like or dislike of the message. For that reason, content-neutral restrictions are not as likely to be used to suppress speech the government dislikes.

U.S. Supreme Court decisions about the First Amendment divide public physical spaces into three types of public forums with differing levels of protection for speech. These categories are:

Traditional Public Forum

Designated Public Forum

Limited Public or Non-Public Forum

A traditional public forum is a place where people traditionally express their views. This is a place that has a long-standing tradition of being used for, is historically associated with, or has been dedicated by government act to the free exercise of the right to speech and public debate and assembly. Traditional public forums include streets, parks, and sidewalks.  In these places, anyone can engage in expressive activity subject to reasonable time, place, and manner restrictions, and as long as the conduct is lawful, and does not impede access to a facility or use of walkways, interfere with vehicle traffic, or disrupt the functioning of the institution. In these places, the government, or in our case, the university, may not prohibit speakers based on their viewpoints, even if their words potentially offend many students, faculty and staff or contradict the university’s values.  Note that classrooms are not a traditional public forum.

Designated public forums are spaces that the government, by voluntary action, has opened for speech and debate. It’s open to any class or type of speech. The university may impose reasonable, content-neutral, restrictions on the time, place, and manner of speech in designated public forums. Examples include Library Mall and dedicated campus rooms that can be reserved for speaker events.

A limited or nonpublic forum is a place where individuals normally do not go to protest, assemble, and express their views. It’s government-controlled property set aside for a specific purpose in which it may limit the class of speakers and or subject matter allowed for discussion. The university can impose reasonable restrictions on expression in a non-public forum including preventing individuals from interrupting or occupying those spaces to express their views. Examples include a lab or administrative office, as well as classrooms.

It depends. In those outdoor spaces considered traditional public forums, the answer is ‘yes’ (subject to time/place/manner restrictions).  Otherwise, the First Amendment does not require that UW–Madison provide a platform to anyone who wants to speak.

However, the university has opened other campus spaces as designated public forums for certain expressive activity. Different campus groups – from registered student organizations (RSO’s) to departments and schools to administrative units – may elect who they want to bring to speak on campus subject to the university’s policies regarding use of campus facilities and speaker invitations.

UW–Madison can (and does) have rules about the policies and processes that must be followed to invite a speaker to campus.  However, UW–Madison cannot choose to prohibit or allow invited speakers based on their viewpoints or the content of their messages – as a matter of law, we must be content neutral in our policies about speech. When UW–Madison provides a platform, the First Amendment prevents UW–Madison from selectively preventing speech or expression because it conveys a controversial opinion or a viewpoint that some, or even most, on campus disagree with or find offensive.

Likewise, UW–Madison does not regulate the content of a speaker’s speech. Because we are and must be viewpoint neutral in our policies about speech, the fact that someone is speaking on campus in no way constitutes institutional endorsement or approval of their message.

Yes.  There are several categories of speech that are not protected, but they are very limited and carefully defined.

The categories of speech that are not protected by the First Amendment include:

• Defamation – a written (libel) or spoken (slander) statement that injures a third party’s reputation
• Obscenity and child pornography – obscenity is narrow category of pornography that violates contemporary community standards and has no serious literary, artistic, political, or scientific value – it’s acceptable for state and federal criminal laws to prohibit obscenity and child pornography
• “True threats” – specific threats directed to person or group with intent to place them in fear of bodily harm or death
• Incitement to immediately break the law
• Fighting Words – intimidating speech directed at a specific individual in a face-to-face confrontation that is likely to provoke a violent reaction
• Harassment as defined by law and university policy
• Non-expressive conduct such as disruption of university functions, property damage, trespassing or blocking entrances to buildings
• Intellectual property violations
• Speech that may constitute a crime such as fraud and conspiracy

In the First Amendment context, these words have very specific legal meanings. In a number of cases, the legal definition of these words may be stricter than the everyday meaning most people give these words. Whether speech or expression is unprotected requires case-by-case legal assessment. The important key point is to recognize that overwhelming majority of speech and expression is considered constitutionally protected and will not meet the standard of unprotected speech.

For the most part, yes. A great deal of what is commonly termed ‘hate speech’ is in fact protected speech under the First Amendment. One way to understand this issue is to recognize that the First Amendment gives everyone both the right to offend and the right to be offended, without risking government intervention. This even includes the right to say things that are bigoted, hateful, loathsome, offensive, hurtful, or inconsistent with the university’s values so long as they do not cross the line into unprotected categories of speech such as defamation, direct threats of specific violence or harm, or become so pervasive and severe that they meet legal definitions of discrimination or harassment.

Of course, the right to do something does not at all make it a good idea to do so. We as a university respect the First Amendment.  At the same time, we also very much hope that the members of our community will elect to treat each other with civility and respect.

It is also important to note that the First Amendment also protects citizens’ rights to respond to any speech, including hate speech, with counter-speech. Offensive ideas can be counteracted responding with counterargument and with putting forward ideas that you value and cherish. This allows for the exchange of ideas and creates an opportunity to articulate your values and beliefs and to change perspectives and minds.

Yes. Under federal and state law, UW–Madison may prohibit words and actions that meet the legal definition of discrimination. That includes harassment on the basis of sex, race, national origin or shared ancestry, including discrimination and harassment based on actual or perceived shared ancestry such as Jewish, Israeli, Palestinian, Muslim, or Arab. For a more detailed information about UW-Madison’s obligations under Title VI, Title IX, and other civil rights laws, see the Office of Compliance website. In general, discriminatory harassment must be sufficiently “severe and pervasive”, which means that frequent and sustained conduct is more likely to constitute harassment than a singular instance of unwelcome speech.  As explained by the United States Department of Education, discriminatory harassment “must include something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive.”

While UW–Madison is permitted to regulate discriminatory harassment, speech that does not rise to this level is protected by the First Amendment. Federal and State law only permit regulating discriminatory conduct in a manner that also protects the free speech rights of other students and faculty.

Faculty/instructors maintain broad and important First Amendment protection when engaged in core academic functions such as teaching and scholarly activities. They also retain broad academic freedom, a distinct but related concept as described below.

Administrators and other university employees do have some legal limits on their free speech rights. The U.S. Supreme Court has held that statements made by public employees pursuant to their official duties are not protected by the First Amendment nor from employer discipline. All UW–Madison employees retain First Amendment protection when speaking as private citizens, so long as they do not state, imply, or insinuate that they are speaking on behalf of UW–Madison.

Academic freedom and freedom of speech under the First Amendment are related but distinct legal concepts. The First Amendment protects individual rights of expression on any number of topics and in a variety of settings.  Academic freedom refers to the ability of instructors, students, and educational institutions to pursue knowledge in the context of teaching, learning, and research without unreasonable interference by political or governmental entities, individuals, or private industry.

How does academic freedom apply to instructors?

Academic freedom confers the crucial right to university instructors to teach classes, select materials for those classes, determine the approach to the subject matter of classes, make assignments, and grade academic performance of students.

Importantly, it grants instructors broad freedom to select and discuss material, concepts, and ideas that are related to the subject matter of their course, even those that students and others may find challenging, difficult, and even offensive. If the instructor meets departmental standards for instruction, then students, parents, the government, and others cannot dictate how an instructor conducts and administers their class.

Academic freedom does not, however, confer a right on instructors to express views on matters not germane to course content or to engage in advocacy based on an instructor’s personal political views while engaged in course instruction. Nor does academic freedom exempt instructors from complying with applicable laws and university policies including but not limited to those prohibiting discrimination, sexual harassment, and sexual violence.

Are there limits on academic freedom in the classroom?

Academic freedom does not give instructors the absolute right to discuss anything in any class. As discussed above, instructors have the freedom to discuss topics that are germane to the subject matter of classes they teach. However, instructors must also take care to avoid introducing or spending significant class time on material that has no relation to the subject matter of the course. In short, class time should be designed to help students achieve course learning outcomes.

Not every class is conducive to all topics. For example, an introductory math class generally isn’t an appropriate place for a discussion on political implications of the French Revolution. But sometimes material that may initially look unrelated to the subject matter of a particular course may actually be related. If mathematical concepts grew out of the French Revolutionary period, a discussion of historical background may be relevant and appropriate.

An important part of the unending search for knowledge is considering what appear to be unrelated concepts, ideas, and materials and evaluating how they may relate to one another. Such thought exercises are responsible for a wide breadth of human knowledge and advancement and are crucial to the mission of the University of Wisconsin–Madison. Therefore, the space for instructors’ judgment about what is germane and relevant is, and should be, defined broadly, but it is not absolute.

How does academic freedom apply to research?

Academic freedom also protects the right of university researchers to choose their research focus, conduct that research, and publish those findings. This means that university researchers have broad discretion to conduct research and publish results. However, academic freedom does not protect such research from evaluation, analysis, and/or criticism.

What is academic freedom for students?

Students have academic freedom to share, respond to, and engage with course materials and discussions. This means that students are entitled to share their views on topics relevant to specific class materials and discussion. Students may not be disciplined, excluded or downgraded simply because the instructor or others disagree with their opinions. However, academic freedom does not afford students the right to dictate curriculum, course material, what topics will be covered in class discussion, or how discussion will be guided. It also does not prohibit others in the class from disagreeing with a student’s views and offering counterpoints, arguments or dissenting opinions. Furthermore, academic freedom does not grant students the right to disrupt class under any circumstances.

For more information on Academic Freedom at UW-Madison, see Part IV of UW-Madison’s Political Activity and Public Advocacy on Campus Guidelines.

Instructors are allowed to impose content-neutral restrictions on the time, place, and manner in which students may engage in discussion in the classroom. Instructors may also limit the subject matter that may be discussed in a course. This means instructors are permitted to dictate the time and length of a classroom discussion, as well as its general subject matter. They can also choose to lecture without permitting interruption, or to permit questions, or encourage discussion.

During an instructor’s designated period for classroom discussion, students may express opinions on the subject matter of the class even when some, or many, disagree with those opinions. Instructors maintain discretion to assess the academic quality of student comments and to control the parameters of the discussion. In addition, students may not engage in speech or expressive conduct that disrupts the class or other University functions.

UW–Madison places content-neutral time, place, and manner restrictions on speech and expression, on its lands, in its buildings, and in its public spaces such as Library Mall or the lower third of Bascom Hill. These restrictions are outlined in UWS Ch. 18, as well as UW–Madison’s Facilities Use Policies. These spaces are limited public forums, as described above.

No. UW–Madison cannot prohibit, restrict, or punish speech in its public spaces based on the viewpoint it expresses. This means that UW–Madison cannot remove or arrest speakers unless they have violated the law or campus policy. This is true even if the speaker is saying things that many find hurtful or offensive.

Yes. Like many college campuses, UW–Madison permits chalking as expressive activity on its sidewalks and streets. It would be constitutionally permissible to prohibit chalking altogether, as some universities do (as a “manner” restriction on speech).  But if we permit chalking, we cannot restrict chalking based on its viewpoint. UW–Madison imposes content-neutral time, place, and manner restrictions on chalking that may be found in the Expressive Activity Policy.

You may chalk additional messaging next to the original message but only the organization that created the chalking may erase it unless it violates university policy.  If UW–Madison becomes aware of a chalking that violates the university’s Expressive Activity Policy, UW–Madison staff will remove it.

All speakers invited to campus through the appropriate campus policies and procedures receive the same First Amendment protections as all other members of the University community. This means that UW–Madison can’t cancel an event or prohibit a speaker because some disagree with the speaker’s opinions and/or find them offensive or hurtful.

No. If a speaker has been invited by a registered student organizations or other UW–Madison unit in accordance with appropriate policies, the university cannot prevent or cancel that event because the speaker has viewpoints some, or many,  find offensive.

We reiterate that hosting a speaker does not imply that UW–Madison endorses that speaker’s views or opinions. UW–Madison has a robust and lengthy history of allowing its registered student organizations to bring speakers to campus each semester who discuss a variety of topics, viewpoints, and opinions. This is an important part of UW–Madison’s educational mission and contributes to free inquiry, open dialogue, and robust debate on campus.

Yes. The First Amendment protects the rights of citizens to peacefully assemble in protest of speech they find offense. Often, the best response to offensive speech is counter-speech.

However, demonstrations and/or protests cannot disrupt, interfere with, or shutdown a speaker’s presentation. Doing so is a violation of Board of Regents policy. Please consult the UW–Madison Expressive Activity Policy for more information.

UW–Madison places content-neutral time, place, and manner restrictions on companies’ and/or organizations abilities to participate in job fairs held in campus facilities.

Because UW–Madison provides otherwise open opportunities for companies and organizations to participate in job fairs on campus, it can’t prevent company or organization from participating because of the views or opinions of that group, even if its community find those views or opinions offensive or hurtful.   However, all companies and organizations that participate in job fairs must comply with our non-discrimination and other policies, as well as all applicable laws.