Frequently Asked Questions About the First Amendment and KSU
1. What is the First Amendment?
The First Amendment of the United States Constitution states, “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 to peaceably assemble, and to petition the government for a redress of grievances.” The First Amendment protects the freedom of speech, including the freedom to assemble or protest, freedom of religion, and freedom of the press. This means that people can express their opinions, point of views, and ideas without government interference or retaliation. The term “speech” includes all forms of expression, not just words, but also what a person wears, reads, performs, protests, and more.
2. Does the University have to protect free speech? Why?
Public universities, like KSU, are required to follow the First Amendment, which means that KSU has a very limited ability to restrict speech. In 2018, the Georgia General Assembly passed Senate Bill 339. In addition to the First Amendment, this law requires that KSU, as a public university in Georgia, assures freedom of speech is protected for all individuals at KSU. KSU cannot legally shield students, staff, faculty, or other KSU community members from speech protected by the First Amendment, including ideas and opinions that individuals may find unwelcoming, disagreeable, or even hateful.
KSU has a Freedom of Expression policy that makes it clear that the university is committed to promoting open ideas and to protecting the fundamental right of free speech. KSU is a place for individuals to learn, express, and debate ideas. However, the right to speak on campus is not a right to speak any time, at any place, and in any manner that a person wishes. KSU must also provide a secure learning environment for individuals enrolled at or employed by KSU and can impose reasonable time, place, and manner restrictions on speech to make certain that free expression does not disrupt the academic and administrative operations of the University.
3. What are “time, place, and manner” restrictions?
Although public universities like KSU are generally not allowed to restrict speech, the right to free speech on public university campuses is subject to some restraints. KSU has the right to place reasonable limitations on when, where, and how speech can occur to safeguard the university’s ability to operate. These limitations are not a violation of free speech rights as long as the university does not take into consideration, or take a position on, the content or viewpoint of the speech when imposing such restrictions.
4. Are there any types of speech not protected under the First Amendment?
Yes. Certain types of speech, like perjury, blackmail, and child pornography are not protected under the First Amendment. Additional examples of unprotected speech include:
True threats. The First Amendment does not give anyone the right to cause someone else to reasonably fear for his or her physical safety. The Supreme Court has ruled that “statements when the speaker means to communicate a serious intent to commit an act of unlawful violence to a particular individual or group of individuals” is a true threat – even if the speaker does not actually intend to carry it out. For example, in Virginia v. Black, the U.S. Supreme Court ruled that a statute prohibiting cross burning with the intent to discriminate was constitutional rather than an unlawful infringement on protected speech because, in light of the history of cross burning as a signal of impending violence, it was a type of intimidation likely to inspire fear of bodily harm.
Incitement. The First Amendment does not give anyone the right to incite actions that would harm others or otherwise cause people to break the law, including to commit acts of violence. To qualify as incitement, the Supreme Court has said there must be a substantial likelihood of imminent illegal activity and the speech must be directed to cause imminent illegal activity. For example, the First Amendment would not protect a speaker on campus who directs the audience to engage in acts of vandalism or destruction of campus property following the event if there is a substantial likelihood that such statements would cause audience members to follow the directives.
Defamation. The First Amendment does not protect written or spoken false statements about another individual that harms the individual’s reputation, or that exposes them to hatred, contempt, or embarrassment. For example, in Bennett v. Hendrix, the Eleventh Circuit ruled that a flier featuring the mug shot of a man alongside text insinuating that the man was a “convicted criminal” (he was not) was not protected speech under the First Amendment.
5. What is hate speech? Is it illegal?
The phrase “hate speech,” often refers to speech that vilifies, humiliates or incites hatred against a particular group. This may include insults or language that demeans a person or group of people on the basis of their gender, race, sexual orientation, disability, religion, or ethnicity. There is no “hate speech” exception to the First Amendment. Hate speech is only illegal if it falls into one of the other categories of speech or conduct that are illegal, such as true threats, incitement of violence, or defamation. It is important to consider, however, that just because something can be said does not mean that it should be. KSU is committed to promoting open ideas and to protecting the fundamental right of free speech. KSU strives to create a fair and respectful environment where individuals can learn, express, and vigorously debate ideas.
6. Does hate speech violate KSU’s non-discrimination policy?
Hate speech, by itself, does not violate KSU’s non-discrimination policy. However, when such speech goes beyond words to threats, targeted harassment, discrimination, or violence, that conduct is not protected under the First Amendment, and may violate KSU’s non-discrimination policy. Determining whether such conduct is protected requires review by KSU administrators on a case-by-case basis.
7. Why does the University allow speakers who promote hateful or derogatory philosophies?
The Constitution prohibits KSU, as a public institution, from banning or punishing speech based on its content or viewpoint, no matter how repugnant such speech may be. KSU also cannot exclude speakers from campus just because the speaker may make statements that offend a particular group or individuals. Similarly, KSU will not cancel properly registered events just because members of the KSU community may have strongly held concerns, however legitimate, about a speaker’s viewpoint. The action of cancelling such a speaker because of the threatened, anticipated, or actual reactions from the opponents to that speech is sometimes called a “heckler’s veto,” and violates the First Amendment.
Protecting free speech as a fundamental right means that KSU has to allow different viewpoints to be expressed, even views that contradict the values of KSU and the community. Invitations to speak on campus given by student organizations and other groups should not be viewed as an endorsement of the speaker’s views by KSU.
8. How does KSU handle expressive activity requests?
Such requests are handled as set forth in KSU’s Freedom of Expression policy, available here: https://publicforum.kennesaw.edu/docs/ksu-freedom-of-expression-policy.pdf. KSU considers all requests in accordance with that policy and does not consider or impose restrictions based on the event’s content or viewpoint of any event speaker(s).
9. What can I do if someone is using speech on campus that is hateful or harmful?
There are multiple ways to respond to speech that you find hateful or harmful. Some suggestions for responding to objectionable speech:
Speak Back. Former Supreme Court Justice Louis Brandeis once advised that the best remedy for speech we dislike, including speech that is hateful or harmful, is “more speech, not enforced silence.” Just as individuals have the right to express themselves using hate speech or speech that is otherwise intellectually unsound, you also have the right to express why that speech is invalid, poorly reasoned, repugnant, or unbalanced. Directly countering hateful speech with counterpoints can build awareness, undermine the legitimacy of the hate speech, and result in a stronger, more respectful community.
Don’t Restrict the Free Speech Rights of Others. Individuals on campus have the right to criticize, oppose, and protest the speech of others, as long as they do not obstruct or restrict the ability of anyone else to express their views. The use of violence or disruption to silence a speaker or prevent speech from occurring or continuing is prohibited. For example, shouting down a speaker during an event or physically blocking others from being able to see or hear a speaker essentially suppresses or censors the speaker and could be considered a violation of free speech. While you are allowed to peacefully protest, you should never physically engage with speakers in any way. Some speakers may try to provoke a response from you, but it is very important that you do not respond in a physical way. Doing so can lead to legal or administrative action against you.
Notably, forcefully shutting down speech not only violates the constitutional rights of others, but it may have the unintended consequence of making the views of silenced individual seem more legitimate or misunderstood.
Disengage. While speakers have the right to speak, you do not have to listen. Denying a speaker the audience they seek by taking an alternative route, walking away, or engaging with others is an effective way to combat speech you find objectionable.
Connect with Others. If the views someone expresses on campus are concerning or upsetting to you, you can connect with others on campus that share your values and interests, including through student organizations and university departments. Doing so can provide a helpful reminder that no one speaker represents the views of the entire KSU community.
Public Forum Portal: To access additional resources and the Public Forum Reservation Request Form visit: https://publicforum.kennesaw.edu
There are several places at KSU that can help answer your questions or concerns about free speech.
Dean of Students Office
Carmichael Students Center
Division of Student Affairs
Wilson Student Center
Office of Diversity and Inclusion
English Building (#27), Suite 202
Division of Legal Affairs
Town Point, Suite 3400
Freedom of Expression Policy: https://publicforum.kennesaw.edu/docs/ksu-freedom-of-expression-policy.pdf
Non-Discrimination Statement: https://equity.kennesaw.edu/titleix/non-discrimination.php