Freedom of Speech

General Free Speech Concepts

The Supreme Court has identified that expressive activity may be regulated based on the type of place where the expressive activity is being conducted. 

What are the Expressive Rights of Students?

Students have free speech rights when they are on campus, still subject to rules applicable to free speech. Generally, particularly in public fora, students can and are encouraged to engage in expressive activity. However, not all speech is protected and speech can be regulated, depending on the circumstances, including those described above related to the type of forum, and unprotected speech, discussed below. Important things to note:

• As identified by the Utah Supreme Court, classrooms are not open fora for all expressive activity. Students may not be disruptive and may be required to follow the reasonable rules of the classroom based on the teaching and learning needs of the class, even when the restrictions govern the content of student speech. For example, a faculty member may create rules to limit disruptions, including prohibiting interruptions, requiring students to stay on topic, and not permitting speech that would limit the ability of others to learn, such as limiting students who monopolize or dominate the conversation. (See PPM 6-22.)

• The university has also identified certain academic speech rights of students under PPM 9-5:

"Faculty members have a responsibility to their students to entertain all relevant questions and to discuss controversial questions objectively and freely. Where faculty members find it pedagogically useful to advocate a position on controversial matters, they should exercise care to ensure that opportunities exist for students to consider other views. Faculty members shall not reward agreement or penalize disagreement with their views on controversial topics, but they can reasonably expect their students to learn the rationale behind certain positions."

Faculty should take care to engage with students, recognizing these rights. At the same time, faculty have the right to reasonably direct the course of their class. Care should also be taken by faculty to recognize the pedagogical purpose of the rules of their classroom, make those clear to students, and not restrict more speech than necessary to accomplish those pedagogical goals. Students also have a responsibility to review the syllabus of the class they are taking prior to the beginning of class and where there is a conflict between a student's religious/core beliefs, request a resolution of the conflict, either through the faculty member or through the Office of Equal Opportunity. (See PPM 9-5.)

• Note that students cannot substantially interfere with the work of the school or impinge on the rights of other students, including doing things that would interfere with other's speech rights.

• Off-campus, non-university student speech is generally not regulated by the university unless it creates a substantial disruption or material interference on campus, threatens others, or is otherwise unlawful or unprotected. This type of speech may include off-campus, non-university online activities. Care should be taken when students engage in online activity or off-campus activity not to limit speech that does not fit these criteria.

Tips for Students Planning a Demonstration or Expressive Activity

• Review PPM 5-38, Expressive Activity to understand where to engage in activity and what rules might apply.

• The Union Building administration can help facilitate your speech or event. Contact the Union Building if you desire to reserve space in order to make sure you get an advantageous location and have help with any needs you might have for services. Contacting the Union Building is not mandatory unless:

  • you are advertising your event in advance;

  • you want to use sound amplification equipment, tables, or displays;

  • you expect attendance beyond the capacity for the space (see the Union Building for area capacities);

  • there are any security or safety concerns (see the Union Building or WSUPD for event security guidelines);

  • you wish to engage in a demonstration indoors.

• Communication is key to a successful event. Keeping the university and your attendees engaged can help everyone put on an event where individuals can be heard without the threat of disruption or safety concerns.

What are the Expressive Rights of Employees?

The university encourages faculty and staff to be civically engaged and to engage in fruitful academic dialogue. The United States Supreme Court has also identified that public employers have a strong interest in the operations of their workplaces. As such, the Court has determined that when employees are acting within the scope of their employment, their speech may be restricted by the government entity. This is also akin to how the courts view government speech. When the university is speaking, it speaks through its employees, and can generally ask its employees to relay information as determined by the university, subject to the university's rules, including those around academic freedom. 

When an employee is not acting within the scope of their employment, such as off-campus or on social media, employees have rights as private citizens. However, the university may still restrict employee speech that is disruptive to the operations of the university. Where employees are speaking as private citizens, courts apply a test that examines whether the speech engaged in by the employee is a matter of public concern (not a personal grievance of the individual) and whether the interest of the employer in protecting against disruption, efficiency, harmony, and interference with business operations outweighs the interest of the employee in engaging in the expressive activity.

Additional protections are outlined when faculty are engaged in teaching, scholarship, and research to help foster the ability of faculty to engage in academic and scholarly research, instruction, and debate. See PPMs 9-1 and 9-2 for further information.

What Kinds of Expressive Activity Is Not Protected?

The First Amendment only applies when the government is an actor in the speech. This means that private entities, those that are not acting as a government entity, do not have to follow First Amendment principles. 

Even when the government is an actor, certain types of speech are not constitutionally protected. Because of the desire to protect as much speech as possible, courts view these in nuanced ways and the threshold for when speech becomes unprotected is generally high.

• obscenity

• child pornography

• defamation

• speech that tends to incite an immediate violent reaction in the hearer (recognized in very limited instances)

• speech that incites or produces imminent lawless action and that is likely to incite or produce such an action

• discriminatory harassment (see PPM 3-32)

• speech that substantially disrupts, obstructs, or interferes with classes, teaching, the use of offices, ceremonies, sporting events, or other university activities

• speech that damages property (vandalism)

• speech that discloses confidential information (FERPA, HIPAA, etc.) or trade secrets

• violent behavior intended to cause a reasonable person to fear for their safety (see PPM 3-67);

• employee speech carried out as part of the employee's job duties

• employee speech that is not a matter of public concern and is significantly disruptive to employer activities

Signage and Bulletin Boards

Bulletin boards are designated for their specific purpose throughout the university. A bulletin board may be designated for specific uses and their designations should be noted on the board. For example, a department may use a bulletin board for their own university purposes to convey their university message. In that event, outside messages may not be allowed. However, other boards are open for posting for specific purposes (events for students) or for any postings.

Other signage on university property is limited for a variety of reasons, including to help prevent clutter, prevent damage to university property, and help with maintenance needs of the campus. The university can post its own messages in accordance with rules for university entities. WSUSA and approved student organizations can post in certain outdoor areas subject to approvals of Facilities Management and SEC. Outside users of university space must have authorization to post in area on campus.

SeePPM 7-10, Posting and Distribution of Written Materials On Campus. Questions can be directed to the Union Building administration.

Related Policies & Procedure Manual Information

• PPM 5-38, Use of Facilities for Events
• PPM 5-39, Use of Facilities for Expressive Activity