Frequently Asked Questions (FAQ)

Respect is a core value at MSU and includes treating people with dignity and civility, but speech that does not meet these ideals may nonetheless be protected speech under the First Amendment to the United States Constitution. These Frequently Asked Questions offer a general overview of how the First Amendment applies in a public university setting like Michigan State University. First Amendment law is complicated, constantly evolving, and fact intensive. The following is intended only as a general educational overview and not as legal advice or a statement of how the law would necessarily apply in a specific instance.

 

 

Free Speech

  • 1. What does the First Amendment to the U.S. Constitution provide?

    "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."

  • 2. Does the First Amendment apply to MSU?
    Yes. The First Amendment applies to government entities, which includes public colleges and universities, including MSU.
  • 3. What is freedom of speech and what does it protect?

    Freedom of speech is the right of persons to articulate their opinions and ideas without interference or retaliation from the government. The term “speech” constitutes expression that includes more than just words and can also include what a person wears, reads, performs, protests, and more.

    In the United States, freedom of speech is strongly protected by the First Amendment of the U.S. Constitution, as well as by state and federal law. The United States’ free speech protections are among the strongest of any democracy; the First Amendment protects speech that some may view as offensive, hateful, or harassing.

  • 4. Which types of speech are not protected by the First Amendment?

    Speech that would be deemed a “true threat”: Speech that a person reasonably would perceive as an immediate threat to their own physical safety is not protected by the First Amendment. For example, if a group of students yelled at a student with a threat of physical harm, such speech would likely not be protected.

    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 U.S. Supreme Court has concluded that there must be a substantial likelihood of imminent illegal activity and the speech must be directed to cause that imminent illegal activity. For example, a speaker on campus who exhorts 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 that imminent illegal activity.

    Discriminatory Harassment: Unwelcome conduct based on an individual’s protected identity (e.g., race, gender, national origin, sexual orientation/identity, religion, etc.) that, based on the totality of the circumstances, is subjectively and objectively offensive and is so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from the university’s education program or activity (i.e., creates a hostile environment).  Conduct prohibited by MSU’s Anti-Discrimination Policy and Relationship Violence, Sexual Misconduct and Title IX Policy is not protected by the First Amendment.

  • 5. What is “hate speech?” Is it illegal?

    The term “hate speech” does not have a legal definition in the United States. Nevertheless, the term often refers to speech that insults or demeans a person or group of people on the basis of protected identity, such as race, sex, religion, ethnic origin, sexual orientation/identity, disability, or gender identity. While speech of this kind does not align with MSU’s values, there is no “hate speech” exception to the First Amendment. “Hate speech” can be constitutionally protected speech. When speech is protected by the First Amendment, even if it is not consistent with MSU’s values, MSU cannot prohibit or impose discipline for such speech. Even though MSU cannot prohibit or impose discipline for protected speech, MSU may still have an obligation to determine whether speech and/or other unwelcome conduct based on a protected identity has created a hostile environment, and, if so, will respond to redress the environment. Anyone who believes they or others are experiencing a hostile environment on campus based on their protected identity should report to the Office for Civil Rights and Title IX Education and Compliance (OCR). (A hostile environment is created by conduct that is subjectively and objectively offensive and so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from the University’s education program or activity.)

    “Hate speech” may not be protected, however, if it also qualifies as a “true threat,” “discriminatory harassment,” or another type of unprotected speech.  Anyone who has been subject to or witnessed hate speech on campus and is unsure whether it constitutes protected speech is encouraged to report the incident. DPPS should be notified of threats to physical safety or incitement of illegal activity. The Office for Civil Rights and Title IX Education and Compliance (OCR) should be notified of anything that may constitute discriminatory harassment under MSU’s Anti-Discrimination Policy or Relationship Violence, Sexual Misconduct and Title IX Policy. Matters may also be referred to applicable college/unit leadership, Human Resources, or student conduct offices for review under any other student, staff, or faculty policies.

  • 6. What is a “hate crime”?

    Under State of Michigan law (Michigan Penal Code § 750.147b(1)), a person is guilty of ethnic intimidation if that person maliciously, and with specific intent to intimidate or harass another person because of that person's race, color, religion, gender, or national origin, does any of the following: (a) causes physical contact with another person; (b) damages, destroys, or defaces any real or personal property of another person; or (c) threatens, by word or act, to do an act described in subdivision (a) or (b), if there is reasonable cause to believe that an act described in subdivision (a) or (b) will occur.

    You may report ethnic intimidation/hate crimes to the Department of Police and Public Safety by calling 911 in the event of an emergency or calling the non-emergency line at (517) 355-2221.

  • 7. How does the First Amendment right to free speech apply to controversial speakers who have been invited to MSU by student organizations or faculty members in a classroom setting?

    As a public institution, the First Amendment generally prohibits MSU from banning or punishing speech based on its content or viewpoint.

    Student organizations are welcome to provide access to appropriate campus venues that have been made available for that purpose, in accordance with the policies outlined in the Registered Student Organization Handbook - On Campus Events section. The University cannot take away that right or withdraw resources based on the views of the invited speaker. Doing so would violate the First Amendment rights of the students in the organization.

  • 8. Can MSU cancel a student-sponsored event if the administration or campus community disagrees with the speaker’s views?

    No, as this would violate the First Amendment. In some circumstances, MSU can cancel events if there are sufficient grounds that are unrelated to content or viewpoint expressed by the speaker or event—for example, if there are serious public safety concerns.

  • 9. What are “time, place, and manner” restrictions? How do they relate to controversial speakers?

    The U.S. Supreme Court has concluded that public entities, including MSU, 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. MSU can regulate where, when, and how speech occurs in order to ensure the functioning of the campus and achievement of our important goals, such as educating students and protecting public safety.

    Accordingly, the First Amendment does not protect an individual’s acts to disrupt a class, use sound amplification devices, or impede other people’s ability to enter and exit buildings, for example.

    When it comes to controversial speakers, MSU invokes this time, place, and manner discretion in order to hold events at a time and location that maximizes the chances that an event will proceed successfully and safely. MSU heeds the MSU Department of Police and Public Safety’s assessment of how best to hold safe and successful events. MSU may invoke its time, place, and manner discretion, for example, to ensure that an event with a highly controversial speaker would be held in a venue that MSU DPPS believes can be best protected (e.g., one with an ample number of exits, etc.).

    The need to consider time, place, and manner restrictions is the reason that MSU requires students to work with the Division of Student Life and Engagement when setting up their events, as opposed to scheduling and creating events on their own. If an event is held without following MSU policy, it may not be protected by the First Amendment and may be canceled.

  • 10. Does the First Amendment apply to speech in the workplace?

    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 MSU 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 MSU’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.

  • 11. What is academic freedom and how does it relate to free speech?

    MSU adheres to the principles of academic freedom with correlative responsibilities as stated by the American Association of University Professors and other organizations. This is outlined in the Faculty Handbook in the “Academic Freedom” policy. This important principle is fundamental to the university’s core mission – to advance knowledge and transform lives through education. Given its significance in higher education, when applied in the First Amendment context, academic freedom may be provided greater protection than other workplace speech.

Polices and Resources

Political Activity

  • 14. Are candidates and advocates allowed to hand out leaflets on campus? If so, are there any time, place or manner restrictions?

    MSU 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 provided they do not disrupt university activities or services. Access to the living areas of residence halls is limited to residents and authorized University personnel.

    MSU recognizes the basic role of political parties and elections in the United States political system of governance and, therefore, acknowledges MSU’s responsibility to facilitate the free exchange of ideas in a political as well as an academic sense.  MSU encourages members of the community (students and employees) to be informed about and participate in the political process for those who are permitted to do so.

    Nevertheless, as a public institution serving and supported by all the people of the State of Michigan, MSU must take care to avoid political favoritism and improper partisan activity. In order to meet these dual public responsibilities, MSU has a policy on the use of facilities for political activities. MSU has also developed these guidelines regarding political activities on campus.

Protest

  • 15. If someone is holding an event on campus, can I protest it?

    Yes. MSU encourages all who engage in protest activity to do so safely and in accordance with the University’s Disorderly Assemblages and Conduct ordinance.  Below are some helpful reminders:

    • Avoid activity that obstructs the free movement of vehicles or persons such as blocking hallways, entryways, walkways, and roads.
    • Do not jeopardize the safety and security of others.

    Leave an area where others are engaging in illegal activities and acts of violence. Your presence may be interpreted as participating in a riot or illegal group action. DPPS should be notified of illegal activity.

  • 16. Can I counter-protest a demonstration or protest on campus?

    Yes, however, counter-protests must also be done in accordance with the University’s Disorderly Assemblages or Conduct ordinance.

  • 17. Does the First Amendment protect civil disobedience on campus?
    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, can result in arrest and criminal charges, or MSU 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 not only under MSU’s Student Rights and Responsibilities, but also by a court of law if the conduct constitutes a crime.
  • 18. Does the First Amendment allow people who oppose a speaker’s message to disrupt an event?

    Generally, no. If, for example, a speaker is giving a scheduled speech in an auditorium on campus, attempts to prevent that speaker from speaking by disrupting the event would likely not be protected by the First Amendment. Protests conducted in a nearby public forum that comply with the University’s Disorderly Assemblages or Conduct ordinance likely would be protected by the First Amendment.

  • 19. How do time, place, and manner restrictions relate to protests?

    As noted in FAQ #9, the U.S. Supreme Court has concluded that public entities like MSU have discretion in regulating 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. These restrictions do not vary depending on the views or ideas being expressed; rather, they are about ensuring that speech occurs in a way that does not disrupt MSU’s mission or endanger public safety.

    As noted above, the University’s Disorderly Assemblages or Conduct ordinance is designed to prevent substantial disruption of educational activities, protect lawful access to campus programs and facilities, avoid unsafe behavior, and prevent the destruction of property. Its application does not vary according to the cause or content of a particular protest, speech, or other form of expression, and the rules and regulations are designed to enable extensive opportunity for expressive activity

  • 20. Why are protest activities that support hateful activities allowed?
    If protest activity is protected by the First Amendment, MSU cannot prohibit or impose discipline for such activity. The same cannot be said for unprotected speech, such as true threats or incitement.  And even if the protest activity is protected by the First Amendment, MSU may still have an obligation to determine if the activity has created a hostile environment and, if so, take steps to remediate the environment.

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