Understanding Free Speech

“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.”

Freedom of speech is the right of a person to articulate opinions and ideas without interference or retaliation from the government. The term “speech” means expression that includes more than just words, but also what a person wears, reads, performs, protests and more. Freedom of speech is strongly protected by the First Amendment of the United States, as well as many state and federal laws. The United States’ free speech protections are among the strongest of any democracy in the world. The First Amendment protects most speech and expression, including speech that many find to be offensive, hateful, or harassing.

Generally, the U.S. Constitution and its protection of rights applies only to the government. Public universities are required by the First Amendment to uphold the right to free speech. Because private schools are not state actors, private school administrations may generally impose whatever restrictions they wish on speech or on visitors to campus as long as the restrictions comply with state law.

Yes. University Policy 1103, Free Speech and Expression protects free speech and expression, emphasizing the importance of the open exchange of ideas, even those that are controversial. The policy aligns with the First Amendment of the U.S. Constitution, the North Carolina Constitution, and relevant UNC System policies. It acknowledges NC A&T’s commitment to fostering a learning environment where free inquiry is encouraged and protected.

As a public university and state agency, NC A&T is subject to the First Amendment. The University is “the government” and is not allowed to interfere with, retaliate against, or punish speech, except with very narrow exceptions.

Yes. NC A&T supports the notion of a “marketplace of ideas,” in which speech that a person disagrees with should be met with more speech that engages and debates it. The First Amendment is founded on the premise that we are all better off if ideas can be expressed and responded to, rather than be subject to an imposed orthodoxy of belief and punished for deviating from it. Freedom of speech is so important that one of the UNC System’s bedrock principles is academic freedom, which protects faculty in their research and teaching, and students’ speech.

University employees (including faculty and staff, as well as student employees in the context of their employment) may have free speech rights in certain contexts because NC A&T is a public (state government) employer. Generally, this depends on whether: (1) the speech was made as a private citizen, and (2) the speech relates to a matter of public concern (i.e., a matter of political, social, or other concern to the community).  If the speech was made as a private citizen about a matter of public concern, then NC A&T’s interest in maintaining an efficient and effective workplace is weighed against the interest in the speech by the employee to determine if there is protection under the First Amendment.

Consistent with UNC System policies, NC A&T adheres to the principles of academic freedom with correlative responsibilities as stated by the American Association of University Professors and other organizations. This important principle is fundamental to NC A&T’s core mission – to advance the human condition and facilitate economic growth in North Carolina and beyond by providing a preeminent and diverse educational experience through teaching, research, and scholarly application of knowledge. Given its significance in higher education, when applied in the First Amendment context, academic freedom may be provided greater protection than other workplace speech.

Classroom and employee speech are protected, depending on the time, place, manner and context of the speech. The University can impose civility rules and regulate professional and/or academic environments to a greater degree than public spaces.

The U.S. Constitution guarantees freedom of speech by default, placing the burden on the government to demonstrate whether there are circumstances that justify limitation of speech. Exceptions to the First Amendment that have been established are:

• Child pornography: Child pornography is a form of child sexual exploitation and is not protected by the First Amendment. Federal law defines child pornography as any visual depiction of sexually explicit conduct involving a minor (persons less than 18 years old). Child pornography can include depictions across a number of different media, including photographs, videos, digital images, undeveloped film, or computer-generated images indistinguishable from an actual minor.
• Defamation: An intentional and false statement about an individual that is publicly communicated in writing (called “libel”) or spoken (called “slander”), which causes reputational, financial, or other injury to the individual that the false statement was made about.
• False advertising: A knowingly untruthful or misleading statement about a product or service.
• Fighting words: Speech that is personally or individually abusive and is likely to incite imminent physical retaliation.
• Harassment: Conduct aimed at an individual on the basis of a protected characteristic (race, color, national origin, gender identity or expression, sexual orientation, age, religion, political affiliation, veteran’s status, disability, or genetic information); that is also pervasive and severe; is a direct or implied threat to employment or education; or creates an intimidating, hostile and demeaning atmosphere.
• 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 encourages 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.
• Invasion of privacy: Intrusion into the personal life of another, without just cause, which can give the person whose privacy has been invaded a right to bring a lawsuit against the person or entity that intruded. Invasion of privacy is an unjustifiable breach of confidentiality not involving a matter of public concern that may involve workplace monitoring, internet privacy, data collection, and other means of disseminating private information.
• Material and substantial disruption: An action that materially and substantially disrupts the functioning of the University or that substantially interferes with the protected free expression rights of others.
• Obscenity: Obscene speech or material is not protected by the First Amendment if it (1) appeals to the “prurient” interest in sex, (2) is patently offensive by community standards and (3) lacks literary, scientific, or artistic value.
• Symbolic actions where the actions are otherwise illegal: Actions such as tagging, graffiti, littering, or burning a cross on private property are generally not protected by the First Amendment.
• True threats: Statements through which the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence. Speech that a person reasonably would perceive as an immediate threat to physical safety is not protected by the First Amendment. The speaker does not have to act on their words in order to communicate a true threat. For example, if a group of students yelled at a student in a menacing way that would cause the student to fear a physical assault, the speech would not be protected by the First Amendment.

Hate speech is not a separate category of speech under the law. 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 NC A&T does not endorse hate speech, there is no hate speech exception to the First Amendment and it is only illegal if it falls into one of the categories not protected by the First Amendment. The U.S. 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. Although NC A&T does not endorse hate speech, the First Amendment protects a right to say hateful things, often even when that speech stands in direct opposition to NC A&T’s values of equality and mutual respect.

Unlike hate speech, “hate crimes” are not protected by the First Amendment just because they are motivated by an individual’s beliefs or opinions. Therefore, even though hate speech is protected by the First Amendment, “hate crimes” are regulated by federal and state criminal laws.

It depends. Symbols of hate are constitutionally protected if they’re worn or displayed before a general audience in a public place (e.g., during a march, at a rally in a public park or in designated free-speech areas (without further context)). The U.S. Supreme Court has ruled that the First Amendment protects symbolic expression, such as swastikas, burning crosses, and peace signs because such expression is “closely akin to ‘pure speech.’” Burning the American flag and wearing armbands to protest a war are protected speech because those actions are considered symbolic expressions of disagreement with government policies.

However, there is no First Amendment protection to use of nonverbal symbols to directly threaten an individual or encroach upon or destroy private property (e.g., burning a cross on private property or spray-painting swastikas on the library wall). In the 1992 case of R.A.V. v. City of St. Paul, the U.S. Supreme Court ruled that a city ordinance was unconstitutional because it prohibited cross-burnings based solely on their symbolism. However, the Court made it clear that the government can prosecute cross-burners under criminal trespass and/or anti-harassment laws.

The U.S. Constitution, state law, and UNC System policies prohibit NC A&T, as a public institution, from banning or punishing speech based on its content or viewpoint. Because campus policy permits registered student organizations and others to invite speakers to campus, and provides access to campus venues for that purpose, NC A&T cannot take away that right or withdraw those resources based on the views of the invited speaker. Doing so would violate the rights protected by the First Amendment. An event featuring an invited speaker can only be cancelled under very limited circumstances. Secondly, once a speaker has been invited by a student group, the University is obligated and committed to acting reasonably to ensure that the speaker is able to safely and effectively address the audience, free from violence or disruption.

No. Doing so would violate the law and university policy and the rights of student groups to invite whomever they wish to speak at the University. Only student groups who invite speakers have the authority to disinvite them.

The U.S. Supreme Court has said that public institutions like NC A&T have discretion to regulate 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. NC A&T can regulate where, when, and how speech occurs to ensure the functioning of the campus without disruption to educational activities, and to protecting the safety of the public and University community. NC A&T exercises its authority to regulate the time, place, and manner where events will be held in order to ensure that any speaker, attendees, protesters, and the community remain safe. University Police Department usually performs a safety assessment and advises appropriate administrators on how to best host safe and successful events. Examples of acceptable time-place-manner restrictions include permit requirements for outside speakers, notice periods, sponsorship requirements for outside speakers, limiting the duration and frequency of the speech, and restricting speech during final-exam periods.

When there is a threat of violence, NC A&T’s senior administrators work closely with faculty, staff, UPD, the City of Greensboro and/or other partners to develop and communicate safety plans to the campus. Generally, administrators advise that if individuals see violence occurring, they should separate themselves from it, report what they see to law enforcement, and comply with law enforcement directives. When events are occurring that have the potential to endanger students, UPD issues an Aggie Alert via University-issued email and using the LiveSafe text and email messaging service to keep the campus informed about developments in real time. NC A&T also offers resources, including counseling services for students, and an employee assistance program for employees who have been affected physically, mentally or emotionally by such events.

Critical statements, and even the ridicule of individuals, are still largely protected by the First Amendment. The body of law that has developed under the First Amendment is clear that NC A&T cannot exclude speakers because they identify and condemn specific individuals.

Several public universities have denied requests from white nationalist Richard Spencer to speak on their campuses, citing the violence in Charlottesville, Virginia on August 11, 2017 as cause to invoke prior restraint in the name of public safety. We are not aware of any public university that cancelled an already scheduled appearance, or an invitation issued by a legally independent student group. 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.

The U.S. Supreme Court has made it clear that a public institution cannot prevent speech because it is likely to provoke a hostile response. Stopping speech before it occurs is called a “prior restraint,” and prior restraints of speech are almost never allowed. The University is constitutionally required and committed to exercising due diligence and taking reasonable steps to protect speakers and prevent disruption or violence. If there is a serious threat to public safety and no other alternative despite the University’s best efforts, a speaker’s event can be cancelled. This is a last resort, and never done based on the views of the speaker. NC A&T’s primary responsibility is to protect the safety of its students, staff, and faculty.

If NC A&T were to illegally cancel the talk of a speaker invited by a student group, it could be sued by the speaker or by the student group. A court could order the University to allow the speaker and/or award money damages to the speaker, student group, or other campus and community stakeholders. If the University loses the lawsuit, a court could also order that the University pay the attorney fees of the speaker and student group.

No. The First Amendment protections for freedom of speech does not give individuals the right to drown out the words and speech of others. The protection for the freedom of speech would mean little if the audience was able to silence anyone with whom they disagreed. Once a society starts down the path of condoning such de facto censorship, it creates the culture and conditions in which anyone’s rights of speech can be compromised.

Yes. A part of free speech and expression is the right to engage in peaceful, nonviolent protest. The University expects all who engage in protest activity to do so peacefully and safely. Below are some reminders for how to protest safely:

• Avoid activity that infringes on the rights of others, such as blocking or preventing the movement or access of others.
• Follow instructions given by law enforcement officers and University officials, such as staying behind barricades or dispersing from an area declared an unlawful assembly.
• Leave the area where others are engaging in illegal activities or acts of violence. Your presence may be interpreted as participating in a riot or illegal group action. Occupying a building or classroom overnight in protest is prohibited unless specifically authorized by University administrators.
• Refrain from inciting others to commit acts of violence such as pushing, kicking, spitting on others, destruction of property, or other unlawful actions.
• Make informed decisions. If you choose to engage in civil disobedience and get arrested, know and understand the potential consequences.

Yes, however, counter-protests must also be peaceful and nonviolent. Counter-protests must adhere to the same restrictions as protests and must not substantially disrupt educational activities, prevent lawful access to campus programs and facilities, jeopardize safety, or permit the destruction of property. These standards do not vary according to the cause or content of a particular protest, speech, or other form of expression, and the rules are designed to enable extensive opportunity for expressive activity.

No. While the First Amendment protects freedom of speech and expression, it does not protect engagement in civil disobedience. By definition, “civil disobedience” involves the violation of laws or regulations and has historically played a significant role in various social movements. Participation in civil disobedience, whether on or off campus, may result in arrest and criminal charges, or NC A&T conduct charges or discipline for students and employees. For example, if student protesters take over a campus building or disrupt classes or events, their actions may be subject to discipline under NC A&T’s Student Conduct Regulations and also by a court of law if the conduct constitutes a crime.

In order to create spaces where all voices can be heard and members of the NC A&T community can engage in their educational, academic, and research pursuits, the University must be consistent and fair in holding individuals whose conduct violates the law and therefore University policies accountable. Accountability measures are taken consistent with procedural and substantive due process safeguards in accordance with the appropriate disciplinary policy based on classification. In some cases, the University may seek criminal prosecution or sue civilly for faculty, students, staff, visitors, or non-affiliated individuals or groups. 

As a private citizen, you may run for office on either a partisan or nonpartisan basis and participate in the political process like anyone else. While public officials retain their First Amendment rights to engage in political speech outside their official capacity, the University may punish or discipline employees for unapproved speeches made in their official capacity. It is important for political candidates who also serve as public officials to clearly differentiate between their personal opinions or beliefs as a citizen, and statements that could be attributed to them in their official capacity which could be construed as speaking on behalf of the University. Employees seeking political office may find that they have a conflict of interest or conflict of commitment with their ambitions and responsibilities to the University.

It is the policy of the University that employees avoid conflicts of interest that have the potential to adversely affect the University’s interests, compromise objectivity in carrying out University responsibilities, or otherwise compromise the performance of their University responsibilities. N.C. Gen. Stat. § 126-13 prohibits state employees from campaigning for political office while on duty and from using government funds or supplies in support of a candidacy. Employees seeking elective or public office must also comply with UNC Policy 300.5.2, Candidacy for Elective Office; Officeholding (Elective and Appointive Public Office) and NC A&T policies. There may also be circumstances in which employees have a conflict of interest or a conflict of commitment. Additionally, the Political Activities Act of 1939, commonly known as the Hatch Act prohibits state and local government employees from running for partisan political office if the employee works in a position that has duties connected with programs financed in whole or in part by federal funds.

A conflict of interest occurs when an individual’s personal interests – family, friendships, financial, or social factors – could directly or significantly compromise an employee’s judgment, decisions, or actions in the workplace or related to their professional obligations to the University. Although a conflict of interest can involve wrongdoing or inappropriate action, it does not necessarily mean or imply wrongdoing or inappropriate activities in all circumstances. However, it is important to disclose potential conflicts to ensure that they are appropriately managed.

A conflict of commitment arises when an individual’s outside activities, whether paid or unpaid, significantly interfere with their ability to fulfill their primary professional obligations to their employer or institution. This may include professionally related activities such as involvement with professional societies, participation on review panels, and external professional activities for pay. Essentially, it's a situation where an individual's dedication to their main job is compromised by their involvement in other endeavors.

All full-time, permanent, and permanent part-time employees, including SHRA, faculty, and EPS employees must submit a COI Certification form annually.

NC A&T is an open campus. Candidates and members of the community may be permitted in public areas of campus and buildings and may hand out leaflets as long as they do not disrupt University activities, services, or access. Access to the living areas of residence halls is limited to residents and their guests, and authorized University staff. The University recognizes the basic role of political parties and elections in the U.S. political system of governance and acknowledges its responsibility to facilitate the free exchange of ideas in both a political and academic sense, consistent with the UNC System’s Equality Policy Within the University of North Carolina.  NC A&T encourages members of the community (students and employees) who are able to do so, to be informed about and participate in the political process.

Even so, as a public institution serving and supported by the people of the State of North Carolina, NC A&T must avoid political favoritism and improper partisan activity. In order to meet these dual public responsibilities, those wanting to use facilities for political activities must comply with the University’s policies on using facilities or reserving space.

Individuals wanting to use space on NC A&T’s campus property must comply with the Use of University Space policy (https://hub.ncat.edu/administration/legal/policies/sec4-stud-aff-Issues/use-fo-space-final-2017.pdf) using the space reservation process (https://www.ncat.edu/campus-life/student-affairs/departments/student-center/university-event-center/terms.php) outlined on the University’s website.

It depends. Speech that has normal First Amendment protections, including hate speech, is protected by the First Amendment. Speech involving true threats, discriminatory harassment, incitement of illegal activity, regulated workplace speech not made as a private citizen and relating to a matter of public concern, and speech in violation of established laws or policies are likely unprotected.

NC A&T’s faculty and staff are expected to clearly and carefully differentiate their official activities as employees from their personal activities as citizens and, when the situation warrants, to make it clear that, when speaking as private citizens, they do not speak for the University.