The First Amendment
The First Amendment to the U.S. Constitution is only 45 words long, yet it protects our most basic freedoms. It reads in full:
"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."
“But, above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”
—Supreme Court Justice Thurgood Marshall, Police Department of Chicago v. Mosley (1972)
Generally, the First Amendment to the U.S. Constitution protects all speech, although the following forms of speech enjoy varying degrees of lesser protection:
- What does the First Amendment protect?
- Generally, the First Amendment to the U.S. Constitution protects all speech, although the following forms of speech enjoy varying degrees of lesser protection:
• Obscenity (e.g., child pornography).
• Involving illegal conduct. Examples:
- º Criminal threat: Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement is to be taken as a threat, even if there is no intent of actually carrying it out. The threat must be, on its face and under the circumstances in which it is made, so unequivocal, unconditional, immediate, and specific as to cause the person threatened to reasonably fear for his or her own safety or for his or her immediate family's safety.
- º Hanging a noose on a college campus for the purpose of terrorizing members of the campus community with the knowledge that it is a symbol representing a threat to life.
- º Obstruction of a police officer.
- º Fighting or challenging another to fight in a public place.
- º Use of offensive words in a public place which are inherently likely to provoke an immediate violent reaction (e.g., "fighting words").
- º Inciting illegal activity.
- º Willful disturbance of any lawful meeting (must "substantially impair" the meeting by intentional conduct in violation of implicit or explicit rules for the meeting that violator knew or should have known).
- º Unlawful assembly and refusal to disperse.
- º Vandalism and defacing property of another.
- º Disturbance by loud and unreasonable noise.
- º Trespass.
- Does the First Amendment protect civil disobedience on campus?
- Protests and civil disobedience have played an historic role on university campuses, in bringing important and beneficial changes within society, and in the development of our democracy. However, civil disobedience is not protected speech under the Constitution. The Constitution does not guarantee any right to engage in civil disobedience—which, by its very definition, involves the violation of laws or regulations—without incurring consequences. Civil disobedience may have a negative effect on the protected interests of others and may interfere with University business or threaten public safety or University assets, in ways that require the University to act to protect those other interests.
- How do the UC Davis Principles of Community relate to the First Amendment?
- The Principles of Community were adopted as part of UC Davis' efforts to “strive to create an inclusive and intellectually vibrant community.” While the Principles of Community serve as aspirational goals for how UC Davis community members should treat one another, they are not rules, laws or policies. In other words, even though speech may contravene the Principles of Community, the speaker cannot be punished for such a violation.
- What is hate speech, and is it illegal?
The term "hate speech" is not defined by law, and no such category exists as an exception to the First Amendment. Thus, even if speech is hateful or offensive, it is still protected by the First Amendment.
Legal scholars have supported the idea that the best way to respond to hateful or offensive speech is not to attempt to limit it but instead to encourage more speech. For example, as Justice Louis Brandeis famously wrote, "[i]f there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence." Whitney v. California, 274 U.S. 357, 377 (1927).
Likewise, the American Civil Liberties Union believes that:
"where racist, sexist, and homophobic speech is concerned, the ACLU believes that more speech—not less—is the best revenge. This is particularly true at universities, where the mission is to facilitate learning through open debate and study, and to enlighten."
It is important to note that while hate speech is in itself not a category excepted by the First Amendment, the First Amendment does not protect conduct just because it is motivated by an individual’s beliefs or opinions. Thus, hate crimes may be regulated by law and are not subject to protection by the First Amendment.
UC Davis offers tools and mechanisms to address words or actions that impact campus climate or violate the Principles of Community and/or other university policies. Students who encounter hurtful or offensive speech are encouraged to reach out for support.
- What is academic freedom?
The principles of academic freedom protect freedom of inquiry and research, freedom of teaching and freedom of expression and publication. These freedoms enable the university to advance knowledge and to transmit it effectively to its students and to the public. The university also seeks to foster in its students a mature independence of mind, and this purpose cannot be achieved unless students and faculty are free within the classroom to express the widest range of viewpoints in accord with the standards of scholarly inquiry and professional ethics.
- When does speech become harassment?
Harassment is defined by policy as verbal or physical conduct that unreasonably interferes with a person’s work or education, or creates a hostile or offensive working or educational environment, when that conduct is based on race, color, national origin, religion, sex, gender, gender expression, gender identity, pregnancy, physical or mental disability, medical condition (including cancer-related or genetic characteristics), genetic information (including family medical history), ancestry, marital status, age, sexual orientation, citizenship, or service in the uniformed services.
- Is speech on the internet and social media entitled to the same level of protection as speech in print and other media?
- Yes. In the case Reno v. ACLU, the Supreme Court rejected the government's argument that speech on the internet could be more carefully regulated as it is with radio and television broadcasting and concluded that the internet, as with print media, should be given the full protection of the First Amendment. Reno v. ACLU, 521 U.S. 844 (1997).
- Are chalking and posting permitted on campus?
- Student organizations registered with the Center for Student Involvement are not permitted to chalk on campus. Posting is allowed under regulations that are intended to prevent interference with the free flow of persons and traffic and with the regular activities of the University.
- Are people allowed to take photographs or videos of students who are protesting?
- If someone is conducting a protest in a public place, there are no policies that prevent people from photographing or video recording them.
Laws, Policies and The Principles of Community Laws and Policies