ÀÏ°ÄÃÅ×ÊÁÏ

Freedom of speech is the right of a person to articulate opinions and ideas without interference or retaliation from the government, in our context ÀÏ°ÄÃÅ×ÊÁÏ. The term “speech” constitutes expression that includes far more than just words, but also what a person wears, reads, performs, protests and other expressive activity.

In the United States, freedom of speech is considered one of our most fundamental rights, strongly protected by the First Amendment of the U.S. Constitution, Article 1 of the Constitution of the State of Florida, as well as other state and federal laws. The United States’ free speech protections are among the strongest of any democracy; the First Amendment protects even speech that many would find offensive, hateful or harassing. As such, any restrictions on the right of free speech should and will receive a great deal of thought, skepticism and review.

The ÀÏ°ÄÃÅ×ÊÁÏ, as a public institution, is governed by the U.S. Constitution’s First Amendment, which limits ÀÏ°ÄÃÅ×ÊÁÏ’s ability to restrict freedom of speech, even if the content is considered offensive or hateful. Additionally, the Florida Legislature through the Campus Free Expression Act has designated certain outdoor areas of Florida’s public universities as areas open to free expression for all. The University cannot prohibit speakers from coming to campus just because individuals from the campus or surrounding community disagree with the content of the speaker’s presentation or with his or her opinion. Further, ÀÏ°ÄÃÅ×ÊÁÏ must protect the First Amendment rights of all persons while on our campus including students, faculty, staff and visitors.

ÀÏ°ÄÃÅ×ÊÁÏ can set limits on a speaker’s appearance that aren’t related to content of the speech. Those limits include setting content-neutral reasonable time, place, and manner restrictions. Those rights also include not allowing speech to occur in a manner that disrupts classrooms, research labs, and offices.

Neither the First Amendment nor the Campus Free Expression Act requires the University to put anyone’s safety at risk when the campus has identified a serious threat of imminent harm to students, faculty, and staff. It is the safety risk – not the speaker’s viewpoint – that would be the sole basis for any restriction.

The Supreme Court has said that public entities such as ÀÏ°ÄÃÅ×ÊÁÏ have discretion in regulating the “time, place, and manner” of speech. The right to speak on campus is not a right to speak at any time, at any place, and in any manner that a person wishes. To an extent, ÀÏ°ÄÃÅ×ÊÁÏ can regulate where, when, and how speech occurs to ensure the functioning of the campus and achieve important goals, such as protecting public safety.

When it comes to controversial speakers, ÀÏ°ÄÃÅ×ÊÁÏ invokes this necessary authority in order to hold events at a time and location that maximizes the chance that an event will proceed successfully and that the campus community will not be made unsafe. ÀÏ°ÄÃÅ×ÊÁÏ heeds its police department’s assessment of how best to hold safe and successful events.*

The University might invoke its time, place, and manner discretion, for example, to ensure that an event with a highly controversial speaker would be held in a venue that the campus police force believes to be protectable (e.g. one with an ample number of exits, with the ability to be cordoned off, without floor to ceiling glass, etc.).

*Note: While the First Amendment analysis is largely the same, the way ÀÏ°ÄÃÅ×ÊÁÏ handles official requests for campus speakers versus smaller impromptu spontaneous outdoor demonstrations is different. Official requests require facilities rental agreements and other processes not required of smaller impromptu expressive activities. Please see below FAQ’s entitled “How does ÀÏ°ÄÃÅ×ÊÁÏ handle requests from outside speakers?” and “How does ÀÏ°ÄÃÅ×ÊÁÏ handle speakers in public outdoor areas?” for a discussion.

Generally, outdoor areas of our campus that are accessible to the public are available to anyone for any lawful expressive activity. ÀÏ°ÄÃÅ×ÊÁÏ may invoke its time, place and manner discretion if the expressive activities of speakers is disrupting the normal functioning of the University, which includes a threat to health or safety, harassment of ÀÏ°ÄÃÅ×ÊÁÏ community members or other unlawful speech. For example, use of amplified sound without prior authorization is prohibited as that could be disruptive of surrounding classroom and office space.

Our ability to limit speakers in public outdoor areas of campus is further constrained by Florida’s Campus Free Expression Act. The Act requires that all public outdoor areas of campus are available for expressive activity by all. Therefore, ÀÏ°ÄÃÅ×ÊÁÏ cannot limit expressive activity to certain public outdoor areas of campus or require notice before a speaker wishes to come to a public outdoor area.

When ÀÏ°ÄÃÅ×ÊÁÏ receives requests from outside speakers to rent campus space, the administration reviews those requests based on the appropriate facility use policies. ÀÏ°ÄÃÅ×ÊÁÏ has and continues to welcome speakers with a wide range of viewpoints; there is no process to review the remarks of outside speakers. However, the administration reserves the right to decline or cancel any event if officials determine it poses serious safety risks and imposes an imminent threat of violence to campus. Further, space is on a first-come, first served basis and outside speakers do not take priority over previously scheduled events.

The Constitution guarantees freedom of speech by default, placing the burden on the state to demonstrate whether there are any circumstances that justify its limitation. When it comes to speakers delivering remarks on campus, impromptu outdoor speakers, students and faculty/staff, the relevant exceptions to the First Amendment that have been established are:

• True threats: Speech that a person reasonably would perceive as an immediate threat to his or her physical safety is not protected by the First Amendment. For example, if a group of students yelled at a student in a menacing way that would cause the student to legitimately fear a physical assault, such speech would not be protected.
• Incitement of illegal activity: There is no right to incite people to break the law, including to commit acts of violence. To constitute incitement, the Supreme Court has said that there must be a substantial likelihood of imminent illegal activity and the speech must be directed to causing imminent illegal activity. For example, a speaker on campus who exhorts the audience to engage in acts of vandalism and destruction of property is not protected by the First Amendment if there is a substantial likelihood of imminent illegal activity.
• Harassment in an educational institution aimed at an individual on the basis of a protected characteristic (race, gender, sexual orientation, religion); that is also pervasive and severe; is a direct or implied threat to employment or education; or creates an intimidating, hostile and demeaning atmosphere:For example, posting racist messages on the dorm room of an African American student would be regarded as harassment and not speech protected by the First Amendment. Hateful speech in and of itself generally receives First Amendment protection but could turn into harassment if the speech is directed at a specific person(s) and is determined to be severe and pervasive.

The listed exceptions to the First Amendment have been written into the student conduct code, employee policies and general ÀÏ°ÄÃÅ×ÊÁÏ policies, governing acceptable means of speech by all on our campus.

The term “hate speech” does not have a legal definition in the United States, but it often refers to speech that insults or demeans a person or group of people on the basis of attributes such as race, religion, ethnic origin, sexual orientation, disability or gender. While ÀÏ°ÄÃÅ×ÊÁÏ condemns speech of this kind, there is no “hate speech” exception to the First Amendment and it is only illegal if it falls into one of the categories described above. In fact, on many occasions, the Supreme Court has explicitly held that prohibitions or punishments for hateful speech violate the First Amendment.

Just because there is a First Amendment right to say something, however, doesn’t mean that it should be said and does not mean you are immune from the lawful consequences of your speech. The First Amendment protects a right to say hateful things, but we strive as a campus to be a community where no one will choose to express hate.

Several public universities have denied requests from controversial speakers citing specific security threats as a cause to invoke prior restraint in the name of public safety. We are not aware of any public university that has cancelled an already scheduled appearance or an invitation issued by a legally independent student group.

It should be noted that in previous attempts to block controversial speakers from appearing on campuses, some of them have sued those campuses and won. Lawsuits were filed against some public universities that denied such requests; in several cases, the court ruled that the universities had to allow the events to proceed.

Cancelling events must be a last resort to be used only when the campus, despite taking all reasonable steps, believes that it cannot protect the safety of its students, staff and faculty. Events can never legally be canceled based on the likely offensiveness of the speaker’s message.