The University of Wisconsin System has a longstanding tradition of embracing and protecting freedom of speech and expression in and out of the classroom. Speech can be offensive or hurtful, however, and the UW-System recognizes how this type of speech can harm our efforts as a campus community in creating an inclusive and respectful environment.

Each institution in the UW System has a solemn responsibility not only to promote lively and fearless exploration, deliberation, and debate of ideas but also protect those freedoms when others attempt to restrict them.

Board of Regents Policy RPD 4-21

Rights and Responsibilities

The debate over what should constitute protected free speech and what speech may be offensive and hurtful is taking place across our campuses and campuses across the country. The UW-System values the importance of such debates because they are essential to creating a campus atmosphere where we are all empowered to express our opinions and vigorously engage with each other to grow and learn. Through our disagreements, we can challenge our impressions and beliefs, making us more well-rounded, tolerant, and understanding of the perspectives and experiences of others. This type of development is at the heart of what we do as a university system: creating tomorrow’s leaders of a generation eager to engage with the world around them from a posture of curiosity, tenacity, and open-mindedness.

Some speech can be more than the simple expression of an idea or opinion and can cross the line into provoking violence, threats, or harassment. The UW-System has no tolerance for such speech. We want everyone to feel safe and respected. If you feel you have been subject to speech or behavior that threatens your safety, please review the reporting options and other resources available to you below.

Please see our policy in regard to our commitment to academic freedom and freedom of expression.

Frequently Asked Questions (FAQs)

Freedom of speech is the right to express information, opinions, and ideas without fear and free from censorship, retaliation, or legal sanction. Speech may be considered spoken words, written words, symbolic speech, i.e. speech expressed through protests, clothing, performances, and more.

The First Amendment of the U.S. Constitution protects the freedoms of speech and expression, and throughout our country’s history has paved the way for all people to express unpopular opinions. In 1932, for example, the U.S. Supreme Court upheld these rights for an African American labor organizer, Angelo Herndon, who had been arrested, charged with insurrection, and thrown in jail for peacefully organizing black and white industrial workers protests and leading rallies.[1] Protecting his freedom of speech rights was a small step toward a much larger movement to seek civil rights and equality for all people in this country.

 As a university, we uphold the First Amendment, and we respect the limits it places on us when it comes to addressing or punishing speech. We may not like everything we hear, but we recognize that most speech is protected and cannot be punished, just like the speech of Angelo Herndon.  

[1]  Poling, Jerry. Professor’s book traces history of African Americans and First Amendment rights. UW Stout News. Oct 31 2019. Professor’s book traces history of African Americans and First Amendment rights | University of Wisconsin - Stout (uwstout.edu)

The United States Supreme Court has long held that the First Amendment’s freedom of speech fully applies to public universities. In Healy v. James (1972), the Supreme Court declared that “the precedents of this Court leave no room for the view that…First Amendment protections should apply with less force on college campuses than in the community at large.” The Supreme Court proclaimed in Healy that “[t]he college classroom with its surrounding environs is peculiarly the ‘marketplace of ideas.’” In fact, all educational institutions that receive federal funds are required annually to educate students of their constitutional rights and the legal framework that guarantees those rights.

On each of our diverse System campuses, it is inevitable that you will encounter ideas with which you disagree or that you find offensive. However, as explained in the universities have a “commitment to free, robust, and uninhibited debate and deliberation among all members of the University’s community.” Disagreement during a discussion is often a productive part of the learning process.

The UW System recognizes that civil discussions are often the most constructive ones, and promotes civility across all of its universities in their respective classrooms and planned events. However, much uncivil expression receives a level of protection under the First Amendment as well, and public universities must tolerate this type of speech. Otherwise, calls for civility may be used to censor certain ideas, a precedent that would significantly endanger non-majority viewpoints and stifle intellectual candor. As the Supreme Court reasoned in Terminiello v. Chicago (1949), “a function of free speech under our system of government is to invite dispute.”

Reference: Menard Center for Constitutional Studies at the University of Eau-Claire

Though the First Amendment covers a broad spectrum of speech, certain speech is not protected. When confronted with an instance of unprotected speech, we must ask whether the speech occurred on-campus or off-campus. If the speech does not occur on our campus, we may not be able to take action to address it. The following table lists and describes certain types of speech that are unprotected.

If you believe you’ve been subjected to an incident of threat, harassment, or anything else listed here, please let us know as soon as possible. We take these things seriously and want to do all we can to create an environment of safety for our students, faculty, and staff.

Speech that incites violence or lawless action

Speech that incites violence or lawless action is speech that is intended and likely to provoke imminent unlawful action.

See Brandenburg v Ohio (1968).

Fighting Words

Fighting words may be lewd, obscene, profane, and libelous words meant to inflict injury or tend to incite an immediate response. 

See Chaplinsky v. New Hampshire (1942).

True Threats

A true threat is a statement that is meant to frighten or intimidate a person or persons into believing they will be seriously harmed by the speaker or someone acting on behalf of the speaker.

See Virginia v. Black (2003).

Obscenity

Obscenity may be offensive words, expressions, or behaviors.

Speech may be obscene if it meets the three-part test laid out by the Supreme Court: 1) speech appeals to the prurient interest, 2) is patently offensive by community standards, and 3) lacks literary or scientific, or artistic value.

See Miller v. California.

Defamation

An intentional and false statement about an individual that is publicly communicated in written (libel) or spoken (slander) form causes injury to the individual the speech pertains to.

See New York Times Co. v. Sullivan (1964).

Harassment under Title IX

Certain conduct may be so severe, pervasive, and offensive it distracts and interferes with the person’s access to institutional resources.

See Title IX.

Harassment under Title VII

Harassment is unwelcome conduct that is based on race, color, religion, sex (including sexual orientation, gender identity, or pregnancy), national origin, older age (beginning at age 40), disability, or genetic information (including family medical history). 

See Title VII. 

Interference with medical treatmentAny speech that may interfere with a patient’s ability to receive medical treatment.
Child pornographyWis. Stat. 948.12(1m) - defines possession of child pornography as knowingly possession or accessing any material (photograph, picture, recording, etc.) that depicts a person under the age of 18 engaging in sexually explicit conduct. Must have the intent to view the material.
Speech that substantially interferes with the free speech rights of others See generally Tinker v. Des Moines Independent School
District (1969).

The First Amendment provides strong protections for freedom of speech, and while it does not protect all speech, it does protect some speech that may be offensive and disagreeable. One example of such speech maybe “hate speech”.

Hate speech is speech that uses discriminatory language with reference to a person or group of people, based on race, ethnicity, religion, sexual orientation, gender, or disability. Hate speech is a separate category of speech under the law. Hate speech may be considered unprotected if the speech qualifies under one of the categories of unprotected speech, i.e. harassment, true threats, etc. The recent Supreme Court case, Matal v. Tam (2017), reaffirms that there is no exception to the free speech rights protected by the First Amendment.

The UW-System denounces any sort of discriminatory language and behavior. As a broad university system, we strive to create an inclusive environment where students, faculty, staff, and our guests feel welcomed and respected.

 

Case Study: Virginia v. Black (2003)

The following case demonstrates the difficulty in navigating the line between protected and unprotected speech. 

  • Background:
    • In Black, a KKK rally led to a cross burning on private property. The cross burning was witnessed however by members of the public from across the road and nearby locations.
    • Statements made by rally attendees included statements like, “he would love to take a .30/.30 [rifle] and just randomly shoot the blacks.”
    • At the conclusion of the rally, the attendees circled a 25-30 foot cross and set it ablaze. Witnesses reported feelings of being scared, awful, and terrible.
    • Black, the organizer of the rally, was arrested and charged for violating Virginia’s anti-cross burning statute.
  • The Court’s decision:
    • Ultimately the Supreme Court affirmed the decision to overturn Black’s conviction. This was because the statutory language indicating that the burning of a cross is in and of itself is prima facie evidence of intent to intimidate was deemed to be too broad to pass Constitutional muster.  For example, someone protesting against racial discrimination could burn a cross in protest, yet under the overly broad language, the person would be viewed as violating the statute and having an “intent to intimidate.”  The Court stated that “[t]he First Amendment permits Virginia to outlaw cross burnings done with the intent to intimidate because burning a cross is a particularly virulent form of intimidation.”  However, there must be actual proof of intent to intimidate. 
  • Implications

    • Just as in Black, offensive language and acts frequently lack any evidence that any of the speakers who engage in the offensive use of language have an actual intent to threaten, harm, or intimidate.  Often this language does not directly threaten anyone or use “fighting words.”  This is true even in situations that are highly distasteful. Accordingly, such behavior is generally protected by the First Amendment. 

The government is permitted to regulate the time, place, and manner of speech and assembly. For instance, the government may restrict a protest march in a residential neighborhood at 2:00 a.m. in ways it could not restrict the same protest march through a public park at 2:00 p.m.

In traditional public forums, such as parks and public sidewalks, there are strong protections for the freedoms of expression and assembly, as such locations “have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Hague v. CIO (1939).

There are limits on the government’s ability to impose restrictions based on content or viewpoint. Even if a regulation is a content- or viewpoint-neutral, it can be imposed only if: the government is pursuing an important interest; the restrictions are narrowly tailored, and the restrictions leave open ample alternative channels for communication. Please refer to your respective campus' policy regarding time, place, and manner restrictions to speech.

Reference: Menard Center for Constitutional Studies at the University of Wisconsin- Eau Claire

 

In the United States Supreme Court’s foundational case for student speech rights at public universities, Healy v. James (1972), the justices agreed that strong free speech protection exist for students. However, the Court also proclaimed: “In the context of the special characteristics of the school environment, the power of the government to prohibit lawless action is not limited to acts of a criminal nature. Also prohibited are actions which materially and substantially disrupt the work and discipline of the school.”

Similar to the time, place, and manner regulations discussed above, this means that universities can, especially if acting in a viewpoint- and content-neutral manner, impose restrictions on speech to ensure that there is not a material and substantial disruption to classes, programs, and activities on campus. Thus, although a group of students may generally gather on their campus mall to hold a protest, engaging in some types of protest in a classroom during a class or an invited lecture may constitute a material and substantial disruption if they interfere with a class or an invited lecture, thereby going beyond the protection of the First Amendment. The First Amendment protects your right to hold your own event or protest, not to materially and substantially disrupt someone else’s speech.

Reference: Menard Center for Constitutional Studies at the University of Wisconsin-Eau Claire

The United States Supreme Court has emphasized the importance of social media for the free exchange of ideas, proclaiming in Packingham v. North Carolina (2017) that, “[w]hile in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace—the vast democratic forums of the Internet in general and social media in particular.”

Nevertheless, social media companies are private entities, and according to current Supreme Court precedent, social media companies have the agency to decide what expression is permitted on their websites. As explained by the Supreme Court in Manhattan Community Access Corp. v. Halleck (2019), “the Free Speech Clause prohibits only governmental abridgment of speech. The Free Speech Clause does not prohibit private abridgment of speech.” Although this could be reinterpreted by the Supreme Court, at present social media companies are not bound by the First Amendment like a public university is. Thus, you will want to take notice of the terms of service and related policies if you open a social media account to see what expression is permitted on that social media website.

Additionally, if you engage in expression on social media that is unprotected by the First Amendment (e.g., harassment, true threats, incitement to imminent lawless action), you could face disciplinary action from the university. However, public educational institutions cannot punish students’ protected speech on social media, even if some people find it offensive.

 Reference: Menard Center for Constitutional Studies at the University of Wisconsin-Eau Claire

Each campus within our university system can make additional policies regarding freedom of speech on their respective campus. These policies may pertain to the time-place-manner restrictions in which speech may be allowed on campus. Time-place-manner restrictions refer to when, where, and how freedom of speech may occur on campus. Such restrictions may pertain to the process of inviting speakers to campus, room reservations for events, freedom of speech during exam periods, and more. We strongly encourage you to familiarize yourself with your respective campus’ policies within the "know your campus policy" section to understand how your campus regulates freedom of speech.