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Free Speech 101

Speech is one of the five freedoms protected by the First Amendment to the U.S. Constitution:

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 of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Free speech includes various forms of expression, such as:

Written words
Verbal speech
Online posts
Yard signs
Flyers and handouts
Music and dance
Art
Clothing
Expressive activities

Speech that does not fall under the protection of the First Amendment includes:

Fighting words
Harassment
Obscenity
Incitement to imminent lawless action
True threats

Why is free speech important?

Our First Amendment rights are something that set us apart from other countries and societies. There are many examples throughout our country’s history of how the protection of speech has helped important causes, movements and people when others tried to silence them. We have the right to express ourselves freely and take a stand for what we believe in without fear of censorship or punishment from authority. Think about a cause or issue that is important to you and consider how free speech has played a role in the advancement of that cause.

The courts determine on a case-by-case basis whether speech falls within one of these exceptions. When judging each case, the courts use high thresholds for what types of speech may be limited, and lean toward finding most forms of expression to be protected, no matter how hateful or offensive it may be.

Learn more about the basics of free speech at CU Boulder’s free expression website.

Hate speech

There is no exception for hate speech under the First Amendment, technically meaning that even hate speech is constitutionally protected. There is also no legal definition for hate speech, although it is understood to mean hurtful or offensive speech targeted towards a certain person or group.

The U.S. Supreme Court has maintained freedom of speech even when it goes to extremes to offend, as seen in these examples:

A Ku Klux Klansman’s racist, inflammatory speech at a Klan rally was held by the Supreme Court to fall within the protections of the First Amendment because it did not advocate imminent lawless action.
A cross burned on the lawn of an African-American family was held by the Supreme Court to be protected speech.
The Supreme Court upheld the decision to allow neo-Nazis to march in Skokie, Illinois, a town that, at the time, had the highest concentration of Holocaust survivors in the United States.
The Westboro Baptist Church’s pattern of attending military funerals and engaging in virulent anti-gay speech was held by the Supreme Court to be protected under the First Amendment.

Some universities have tried over the years to establish hate speech codes in the past, but courts have consistently blocked them for violating the First Amendment. It is challenging to establish a definition for hate speech that is not too broad or vague. It can also be dangerous to hand over the power to censor or regulate any form of speech to authorities, including university leaders or the government.

There may be times when we encounter hateful comments or speakers on campus. However, the First Amendment protects a speaker’s viewpoints, regardless of whether or not they align with our campus values of inclusion and respect. While campus administration generally will not sponsor events that are not in alignment with campus values, it is often the case that student organizations do. If campus authorities were to block a controversial speaker from coming, they may be found to violate the free speech rights of the sponsoring group.

Free speech and inclusion at CU Boulder

CU Boulder is committed to the freedom of expression and committed to the fostering of inclusive and welcoming learning environments on campus.

The freedom of expression helps us to be a truly diverse community where we don’t have to conform to certain ideas or standards. We have the freedom to express ourselves, regardless if that expression fits the status quo. Free speech is an equalizer in our society. While everyone comes from different backgrounds and has access to different resources, these rights are something that no one can take away. In this way, free speech can be seen as inclusive: everyone has the right to speak, everyone has the right to be heard and everyone has the right to be informed.

Free speech is powerful–it can inspire, motivate and lead to change and innovation. Depending on the message, it can also can be extremely hurtful and hateful. Our speech could potentially have a negative effect on those around us, even though we have the right to free expression and even if we meant well with our intentions. With that, campus community members are encouraged to reflect on the impact their message can have, and uphold the ideals set forth by the Colorado Creed.

Free speech and inclusivity do not have to be opposing ideals. The CU Boulder campus must be a place for open dialogue, analysis and free discussion. With this, sometimes we will encounter ideas and speech that do not align with our university values.

When there is speech that may be considered offensive or wrong, the best solution is often more speech instead of less. Some may think it’s easier to cancel or silence speakers, but students are always encouraged instead to form a better response and debate, refute or engage in civil conversation with opposing ideas.

Learn more about how you can use your voice on campus, engage in healthy, constructive conversations with differing viewpoints and your academic freedom rights in the classroom.

Discrimination and harassment

If hateful speech is directed at an individual and meets the legal definition of defamation, it may not be protected. In addition, the university has discrimination and harassment policies that may be implicated if speech is directed toward a particular person rather than a group, or represents a pattern of repeated conduct directed against a person.

At CU Boulder, we promote a culture of respect and civility. We recognize that universities best function when dialogue advances our academic purposes. However, policies defining discrimination and harassment must also recognize the constitutional protections for expressive activities.

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Free Speech 101

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