Office of the President
Frequently Asked Questions
You may have questions about free speech and what it entails at Fresno State. The FAQs are meant to provide a general understanding of protected versus unprotected speech, including additional information on academic freedom, hate speech, your first amendment rights, and more.
Academic Freedom
"Academic freedom" is a concept pervasive within the higher education sector that supports the understanding that the free search for truth and its free exposition -- which includes the freedom to research and teach a range of topics, ideas and ideologies -- is a democratic right, and benefits us all. Fresno State is committed to academic freedom and both encouraging and protecting artistic, scientific, literary and political speech. The American Association of University Professors provides additional information about academic freedom. The California State University also provides a definition of academic freedom under its academic policies.
First Amendment
The First Amendment protects various freedoms, including freedom of speech, assembly, petition, religion and press. The speech protections apply to written and spoken words as well as expressive conduct (i.e., actions that do not involve written or spoken words but do contain a message, such as art or gestures). But these protections apply only to activities regulated by the government, and the protections are not absolute. Governments are also concerned with the security of their citizens and borders, and with equal treatment of their citizens. In analyzing the application of the First Amendment, courts will consider the various security, equality and liberty interests involved.
The First Amendment does not prohibit any speech, but there are some types of speech for which there is no, or very limited, First Amendment protection. Unprotected speech may be regulated because of its content. Such speech includes but is not limited to the classifications below:
- Incitement of Imminent Lawless Behavior: Speech advocating for the use of force or lawbreaking where it is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.
- Fighting Words: Speech that tends to incite an immediate and violent response from an average person. As an important consideration, speech can not be restricted simply because some deem it to be upsetting or hurtful, and speaking generally about a topic that others may consider controversial or offensive typically will remain protected. The fighting words exception normally does not apply to speakers addressing a crowd on campus but may apply to speakers addressing specific individuals in the immediate area, no matter the size of the crowd (i.e., words directed to a person that are so abusive that they tend to incite an immediate physical retaliation).
- True Threats: Speech meant to communicate a serious expression of an intent to commit an act of unlawful violence to an individual; speech that promotes and incites actual, immediate and imminent violence and harm (i.e., when a reasonable person would view the speech as a serious intent to harm and there is the prospect of immediate execution).
- Harassment or Discrimination: Discrimination, as defined by the CSU Policy, is (an) Adverse Action(s) against an individual because of their Protected Status. Harassment, as defined by the CSU Policy, means unwelcome verbal, nonverbal or physical conduct engaged in because of an individual's Protected Status. View the CSU's Nondiscrimination Policy.
- Defamation: False statements of fact made about a person. In cases concerning a public official or figure, the speaker must have acted with intent in making the false statement. In certain cases, the party alleging defamation must show actual damages.
- Obscenity: Speech depicts or describes sexual conduct in a patently offensive way and lacks literary, artistic, political or scientific value.
- Child Pornography: Speech is considered child pornography when it visually depicts sexual conduct by children below a specific age. Such speech is distinct from obscenity due to the criminal nature.
- Inappropriate Use of Public Resources: Use of public resources for partisan politics.
These and other categories are interpreted very narrowly; most speech will still be considered protected under the First Amendment.
As a public university bound to protect the free speech rights of students, faculty, staff and community members on campus, there are limited situations in which Fresno State can restrict speech. The university can restrict speech based on what people are saying only when it reasonably appears that the speaker will advocate violent (and immediate) overthrow of the government, willful destruction or seizure of campus buildings or property, disruption or impairment by force of the campus’s regularly scheduled classes or other educational function, physical harm (including coercion or intimidation) or other invasion of lawful rights of campus community members (including administrators, officials, faculty, staff and students), or other campus disorder of a violent and immediate nature.
Hate Speech, Other Questions
Hate speech may be offensive and hurtful; however, it is generally protected by the First Amendment. One common definition of hate speech is “any form of expression through which speakers intend to vilify, humiliate or incite hatred against a group or a class of persons on the basis of race, religion, skin color, sexual identity, gender identity, ethnicity, disability or national origin.”
Courts have ruled that restrictions on hate speech would conflict with the First Amendment’s protection of the freedom of expression. Since public universities are bound by the First Amendment, public universities must adhere to these rulings. However, universities also have an obligation to create a safe, inclusive learning environment for all members of the campus community.
With these considerations in mind, courts in the United States have found that expression
generally cannot be punished based on its content or viewpoint. Thus, although hate
speech, alone, receives constitutional protection, any expression that constitutes
a true threat, incitement to imminent lawless action, discriminatory harassment or
defamation can be punished by Fresno State for those reasons.
Many suggested responses to hateful or offensive speech is to encourage more speech that exposes the offensive speech for what it is. In one famous US Supreme Court case, Justice Brandeis wrote, “If there be time to expose through discussion the falsehoods 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, 1927). The ACLU agrees, and states on its website 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.”