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."

The First Amendment lives in the Bill of Rights, which is a list of specific limitations on governmental power that make up the first ten amendments to the U.S. Constitution. The First Amendment guarantees to individuals several related fundamental rights. The foundation for all of them is the freedom of speech.

Speech is not limited to just words, though it does include both written and spoken words.

Speech also includes expressive conduct, such as taking a knee, attending a rally or turning your back to someone. Speech also includes a decision NOT to speak, such as declining to take a pledge or sing the national anthem.

And speech includes imagery, such as a sign, poster or T-shirt.

There are certain, very narrow exceptions to the allowance of all speech, detailed below. When these exceptions are used to restrict speech or punish speech, the courts heavily scrutinize those decisions.

• True threats (criminal threats directed at a person with the intent of placing the victim in fear of bodily harm or death).
• Fighting words (personally abusive epithets or terms of abuse in your face, tending to cause an immediate violent reaction).
• Incitement to imminent lawless action (e.g., incitement to riot).
• Discrimination (treating an individual adversely in employment, housing, or academic decision based on race, ethnicity, national origin, gender, sexual orientation or identity, religion, age, disability, military status, or similar categories without a legitimate, nondiscriminatory reason for the treatment).
• Criminal, obscene or illegal conduct (e.g., vandalism, assault, riots, blackmail, defamation, perjury, child sexual abuse material or discrimination).
• Seriously disruptive actions (e.g., occupying a building; shouting down a lecturer).

Hate speech is speech that attacks a person or group on the basis of attributes such as gender, ethnic origin, religion, race, disability or sexual orientation. Discrimination and threats are not the same thing as hate speech, and hate speech is still protected expression unless it meets one of the narrow exceptions described in the question above.

The University cannot and does not censor, prohibit, chill or punish protected speech, even hate speech. It also cannot enact or enforce censorship policies, such as “hate speech codes.”

K-State recognizes that hate speech can be deeply offensive and hurtful. Numerous resources are available to assist campus community members impacted by hate speech.

There are many actions that the University and campus community can take to respond to hurtful speech. The University imposes several viewpoint-neutral and reasonable time, place and manner restrictions to where, when and how speech can occur on campus. The University also prohibits and punishes discrimination, violence, vandalism and other criminal conduct. View the policies page for more information.

Perhaps the most important thing members of our university community can do to counter hate speech is empower one another to engage in expression of views in a respectful manner. Leading by example and engaging in difficult but civil discourse about issues important to us sets the tone for a respectful environment for all.

• Learn more about opportunities to engage in civil discourse on a variety of topics.
• Discover policies and guidance and the support resources available to you.

Academic freedom is related to free speech but different. Generally, academic freedom refers to the right to teach, write or speak in the academic context about controversial topics without forfeiting tenure. Universities also have academic freedom to determine curriculum, etc. Professional decorum and standards of excellence still apply in this context.

Generally, employees may engage in free speech as private individuals about matters of public concern. However, the University may restrict speech that affects the workplace or campus environment.

To determine whether a faculty member or employee has free speech rights in a particular context, the courts ask a series of questions.

• First, was the employee speaking as part of their official duties for the University (i.e. on work time, on a work device, or while engaging their official K-State role)?
  • If the answer to that question is yes, then the University does have an interest in the speech and may regulate it.
  • If the answer is no, and the faculty member or employee was engaging in speech as a private citizen, then the next question is whether the speech was on a matter of public concern (e.g. commenting on a social issue and not a personal workplace critique).
    • If the faculty member or employee was engaged as a private citizen commenting on a matter of public concern, then the speech is protected.
    • If the faculty member or employee was engaged as a private citizen but commenting on a personal matter related to the workplace, then the University may consider whether the speech limits the University’s ability to have an effective workplace. This is a balancing test, weighing the interest of the employee’s right to speak against the University’s right for an effective workplace. If the University’s interests outweigh the employee’s, then the speech may be regulated.

The University encourages all community members to review the Principles of Community and strive to do their part to build a respectful, inclusive campus community.