Free Speech Overview
What is freedom of speech and what does it protect?
The First Amendment of the United States Constitution grants you the freedom of speech, which is the right of a person to articulate opinions and ideas without interference or retaliationve from the government, including public institutions. The term “speech” constitutes expression that includes far more than just words, but also what a person wears, reads, performs, protests and more. The First Amendment even protects speech that many consider offensive, hateful or harassing.
What are some types of speech not protected by the First Amendment?
The First Amendment does not protect illegal activity (e.g. acts of violence or destruction of property), incitement of illegal activity, “true threats” of violence, obscenity, fraud, defamation (libel or slander) or harassment as defined by law and University policies.
A “true threat” is speech that a person reasonably would perceive as an immediate threat to their physical safety. For example, drawing a firearm during a protest and waving it around.
To constitute incitement of illegal activity, the speech must be directed to causing imminent illegal activity, and there must be a substantial likelihood of imminent illegal activity. For example, a speaker on campus who prompts 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 imminent illegal activity.
What is discriminatory harassment, and does the First Amendment protect it?
Freedom of speech under the First Amendment is not unlimited. Speech that qualifies as discriminatory harassment is not protected under the First Amendment. However, this is a specific legal term and speech that does not qualify as harassment is often protected.
Discriminatory harassment is defined as harassment based on a protected characteristic that is that is so severe, persistent or pervasive that it interferes with or limits a student, faculty, staff, volunteer or PSU community member’s ability to participate in or benefit from the university’s educational and/or employment opportunities, programs or activities. Protected characteristics include race, sex/gender, gender identity, sexual orientation, religion, national origin, disability, and other protected classes listed in PSU’s Prohibited Discrimination and Harassment Policy.
Discriminatory Harassment includes Sexual Harassment. Faculty and staff are required to report incidents of discriminatory harassment to the Office of Equity and Compliance or the Dean of Student Life Office. Similarly, if you or someone you know at Portland State has been subjected to discriminatory harassment, please contact the Office of Equity and Compliance.
Not all offensive, bigoted or hateful speech qualifies as discriminatory harassment, and determining when speech crosses that line requires careful review on a case-by-case basis. That’s why it is so important to report such incidents to the Office of Equity and Compliance.
What is defamation, and is it protected by the First Amendment?
Freedom of speech under the First Amendment is not unlimited. Speech that qualifies as defamation is not protected under the First Amendment. However, this is a specific legal term and speech that does not qualify as defamation is often protected.
“Defamation” is an objectively false statement communicated to another person that causes damage to one’s reputation, which then results in financial damage (e.g. loss of a job, loss of clients, demotion, etc.). If proven, defamation can be punishable by Oregon law. If the statement can be proven true, it is not defamatory. There are two types of defamation - libel (communicating a defamatory statement by writing or picture), and slander (defamation by oral or spoken communication.) Speech that may be perceived as defamatory could be protected by Oregon’s free speech doctrine depending on the circumstances.
Oregon courts tend to err on the side of protecting (rather than punishing) the speech, if the speech is perceived to be a subjective opinion.
Can “hate speech” be protected under the First Amendment?
Yes. The term “hate speech” is generally understood to mean hurtful and offensive speech targeted against certain groups and individuals. While views expressed through hate speech are deeply at odds with the values of PSU, courts have held that such speech is generally protected by the First Amendment.
However, we all know that words can hurt. Just because there is a First Amendment right to say something, doesn’t mean that it should be said. While the First Amendment protects a right to say hateful things, we as a campus strive to be a community where no one will choose to express hate.
It is also possible that “hate speech” could rise to the level of speech the First Amendment does not protect, such as illegal activity (e.g. acts of violence, destruction of property), incitement of illegal activity, “true threats” of violence, obscenity, fraud, defamation (libel or slander) or discriminatory harassment as defined by law and University policies.
Not all offensive, bigoted or hateful speech qualifies as discriminatory harassment, and determining when speech crosses that line requires careful review on a case-by-case basis. That’s why it is so important to report such incidents to the Office of Equity and Compliance.
Does the First Amendment protect civil disobedience on campus?
Where civil disobedience involves violations of laws or rules, no, it is not protected by the First Amendment. Protests and civil disobedience have played a historic role on university campuses, and certainly at PSU. However, civil disobedience is not protected speech under the Constitution. The Constitution does not guarantee any right to engage in civil disobedience where it entails the violation of laws or regulations without the risk of incurring disciplinary and legal consequences. That means you can be arrested and/or be subject to discipline if you engage in civil disobedience.
How do First Amendment rights apply to events at public universities compared to events at private ones?
The Constitution, and its protection of rights, applies only to the government. Public universities, such as PSU, are directly bound by the First Amendment to uphold the right to free speech. Because private schools are not state institutions, their administrations may generally impose restrictions on speech or on visitors to campus.
Beyond the campus’s legal requirements, does PSU believe in the value of all kinds of opinions and perspectives?
Absolutely. PSU supports the notion of a “marketplace of ideas,” in which speech that a person disagrees with should be met with more speech that engages and debates it. The First Amendment and the university are founded on the premise that we are all better off if ideas can be expressed and responded to, rather than be subject to an imposed orthodoxy of belief and punished for deviating from it. Free speech is particularly important to a university like PSU whose goal is the discovery and establishment of truth. Many ideas now fundamental to our understanding of the universe and our place in it – such as evolution or climate change – were initially attacked. Freedom of speech is so important to the university that one of the university’s bedrock principles is academic freedom, which protects faculty in their research and teaching.
Events and Protests
Where can I find Portland State policies related to events, protests and demonstrations?
PSU has many policies and processes applicable to events, protests and demonstrations which can be found on PSU's Free Speech website. For events, Conference and Event Services is happy to work with you to navigate all the policies and to connect you to people on campus that can help you.
All policies are in place regardless of the viewpoint of the organizer. The policies on the Conference and Events website can help you to navigate as you schedule your events include, but are not limited to:
- City ordinances regarding noise or park usage
- County ordinances regarding food
- University policies for space usage, building hours, or how spaces can be used.
Can the university limit protected speech activities?
Yes, but the limitations must be reasonable and not based on viewpoint or content. The nature of these limitations will also depend on where the speech is taking place (e.g. whether it is happening in a public forum, nonpublic forum, or limited public forum). In all forums, PSU has the authority to regulate the time, place and manner of free speech and expressive activities to ensure health, safety, and welfare, and to prevent disruption of university functions, including but not limited to classrooms, research labs, offices, libraries, administrative buildings and pedestrian or vehicle traffic.
What are “time, place and manner” restrictions?
The Supreme Court has said that public entities like PSU have discretion in regulating the “time, place, and manner” of speech. 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. The campus can regulate where, when and how speech occurs to ensure the functioning of the campus and achieve important goals, such as protecting public safety, preventing destruction of property, protecting lawful access to campus programs and facilities, and ensuring the continuity of university functions, educational activities and business operations. These restrictions and their application do not vary depending on the views or ideas being expressed, or the cause or content of a particular protest, speech or other form of expression.
These rules are often referred to as “time, place, and manner” or TPM restrictions. Examples of TPM restrictions include requiring people to refrain from using amplified sound during certain times, enforcing occupancy limits to a venue, observing building hours, or requiring that ingress and egress points to a room or building are not unsafely blocked. This is one reason why we ask those planning events to work with administration early and often, to ensure that the event can be successful and not violate these content-neutral TPM restrictions.
Does PSU regulate speech in outdoor spaces on campus?
Yes. These regulations depend in part on the type of forum associated with each outdoor space. On the PSU campus, sidewalks, streets and the Park Blocks are public forums that are owned and operated by the City of Portland. Administrative offices, classrooms, building lobbies, and resource centers, meanwhile, are nonpublic forums. And auditoriums, some conference and meeting rooms, athletic facilities, as well as The Urban Plaza, Montgomery Plaza, SMSU Breezeway, The Walk of the Heroines and Stott Community Field, are limited public forums.
While the applicable rules may vary depending on the type of forum, all speech on campus is subject to reasonable time, place and manner restrictions.
How does free speech apply to controversial speakers that student groups bring to campus?
PSU cannot and does not restrict or punish speakers based on their points of view. It is inherent to higher education that we will encounter unwelcome and inconvenient questions. Learning to form independent judgments requires that individuals demonstrate openness to the challenges their ideas may elicit and the willingness to alter their original views in light of new knowledge, evidence, and perspectives.
Sometimes, speakers may present ideas that are offensive, bigoted or hateful. It’s important to remember that we all have the right to speak out and peacefully protest in response to ideas that are counter to our values. This is part of the robust and vigorous public debate that is critical to our civic discourse.
Because campus policy permits Registered Student Organizations to invite speakers to campus and provide access to campus venues for that purpose, the university cannot take away that right or withdraw those resources based on the views of the invited speaker. And, once a speaker has been invited by a student group, the university is obligated to act reasonably to ensure that the speaker is able to safely and effectively address his or her audience, free from violence or substantial disruption.
Can Portland State University cancel an event if the administration or the campus community disagrees with the event’s message or content?
No. As a public university, PSU Administration cannot cancel events for political reasons or based on the content or viewpoint of the speaker. PSU may cancel or modify an event based on reasonable time, place, manner restrictions, or if the event violates other rules applicable to the forum in which the event is set to occur.
If someone is holding an event on campus, can I protest it?
Yes. Activism is a part of our campus DNA, and we encourage expression in protest of other expressions. The First Amendment protects not only the speakers’ right to express their viewpoints, but also the right of citizens to peacefully assemble in protest. However, counter protests must not materially disrupt or interfere with a speaker’s presentation.
PSU encourages all who engage in protest activity to do so safely. Below are some reminders for how to protest safely:
- Avoid activity that infringes on the rights of others, such as blocking and preventing the movement or access of others.
- Follow the lawful instructions of a police officer or public official, such as staying behind barricades, dispersing from an area declared an unlawful assembly, not resisting arrest. It is against the law to disobey a lawful order by a police officer.
- Leave the 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. Staying overnight in a campus building after hours is prohibited.
- Refrain from speech or actions that incite others to commit acts of violence such as pushing, kicking or spitting on others, destruction of property or other unlawful actions.
- Make informed decisions. If you choose to engage in civil disobedience and get arrested, know the potential consequences.
Can people use speech to “shout down” a speaker they find offensive?
No, freedom of speech does not give someone the right to drown out the words and speech of others; freedom of speech would mean little if the audience was able to silence anyone with whom they disagreed. Thus, seizing control of a forum for one’s own purpose, or directly or indirectly preventing a speaker from speaking, is an unacceptable form of protest. Members of the university community and outside guests have the right to peacefully protest a speaker, meeting, or event, so long as the event being protested is able to continue without significant or material disruption. And, as noted elsewhere, protester activity may implicate the Student Code of Conduct—shouting down a speaker at an event may result in a serious disruption or other consequences rising to the level of a code violation or disciplinary action for employees.
Can I stand up and turn my back to a speaker I would like to protest?
Yes. Turning your back on a speaker is a protected form of expression (although you could lawfully be asked to move if you are blocking the view of others).
Can I wear a t-shirt expressing my views on campus, to a speaker, at an event?
Yes. Wearing a t-shirt is a protected form of expression.
Can I bring signs expressing my views on campus to a speaker or at an event?
Yes. As long as the signs are not expressly prohibited at the event, and provided the signs do not block the views of others and are not attached to sticks or other objects that could be used as weapons.
Is chalking permitted on campus sidewalks?
Chalking on campus is prohibited without prior written approval from the Art and Temporary Installation Committee, and the use of any other medium to write or draw messages is strictly prohibited. PSU organizations or departments wishing to use chalking to promote PSU related activities or events must submit an installation request form in accordance with PSU’s Chalking and Posting Standards.
What are the rules for posting signage or other materials on campus?
Posting materials is allowed on approved bulletin boards and other specific designated areas as described in PSU’s Chalking and Posting Standards. If you are unsure whether a surface on campus is an approved surface or not, or to make a request to post a banner or any other temporary or permanent signage, please email the Facilities Work Order Center or call 503.725.2349.
Is overnight camping allowed on campus?
Overnight camping or storage of materials is not allowed. All materials or structures associated with the event must be removed immediately following the conclusion of the event. For multiple day outdoor events, materials or structures associated with the event must be removed after each day’s activities. PSU is not responsible for lost, stolen, or damaged property.
Can I pass out flyers or leaflets expressing my views?
Yes, this may occur in any outdoor space so long as the passing out of flyers or leaflets does not block egress or in some other way disrupt a reserved event or university operations.
It is important to note that no sign, banner, slogan, symbol, display or other similar device may be painted, affixed, erected or installed on campus grounds or buildings except as expressly provided in PSU’s Chalking and Posting Standards.
Can I protest or hold a rally in an outdoor space?
University community members wishing to engage in noncommercial expressive activity in outdoor areas of campus are permitted to do so freely, subject to reasonable time, place, and manner restrictions, and as long as the conduct is lawful, and does not impede access to a facility or use of walkways, interfere with vehicle traffic, conflict with or otherwise interfere with a prior reservation for that space, or disrupt the functioning of the institution.
Can my group reserve an outdoor space for a protest or rally?
Yes. Reservation procedures are explained in the Campus Events and Student Union Facility Use Procedures.
Do I need to schedule a protest or rally?
No. Students can express themselves in outdoor forums without scheduling or permission, although a spontaneous protest or rally cannot supersede a planned event in a reserved space. A spontaneous protest or rally also remains subject to reasonable time, place, and manner restrictions, remain lawful, and must not impede access to a facility or use of walkways, interfere with vehicle traffic, or disrupt the functioning of the institution.
There are many advantages to scheduling a protest or rally, and advance notice is encouraged to address space and safety concerns.
Can a protest spontaneously take over a roadway or block traffic?
No. Protected speech does not include activities that block the movement of traffic or pedestrians, prevent safe and accessible ingress or egress of a building or space, disrupt the use of a space for its intended purpose, or disrupt activities occurring nearby.
Are there advantages to scheduling a protest or rally in advance?
Yes. Applying to reserve and use a campus area is recommended if you are planning an expressive activity, because official approval accords benefits such as coordination with university departments, including arrangements for crowd control, parking, sanitation and restroom facilities, and provisions for protection of the health, safety, and security of persons and property.
Can my group hold a rally inside a University building?
Yes, pursuant to policy, there are many spaces inside buildings that can be reserved for rallies and other expressive activities. Please see the Campus Events and Student Union Facility Use Procedures for more details.
Can I protest an event, speaker, or meeting inside a building?
Yes. As long as the protest does not disrupt the event, meeting, or speaker from continuing. The protest would also be subject to reasonable time, place, and manner restrictions, all conduct must remain lawful, and the protest must not impede access to a facility conflict with or otherwise interfere with a prior reservation for that space, or disrupt the functioning of the institution.
Can my group express disagreement with university policies at meetings of the Board of Trustees?
Yes. Groups or individuals can engage in expressive activities at Board meetings as long as the meetings are not disrupted and the speech does not violate any applicable time, place, manner restrictions. All conduct must also remain lawful and not disrupt the functioning of the university (including the Board meeting).
Speech and protest activities that cause a substantial disruption, prevent the Board of Trustees from continuing their meeting, or otherwise violate PSU policies are prohibited. Individuals who participate in such activities may be subject to student conduct action or employee discipline.
Can my group stage a sit-in or occupation of a University office?
No. The University prohibits sit-ins, occupations, and other activities designed to disrupt University operations. Individuals who participate in such activities may be subject to student conduct action or employee discipline.
What does it mean to disrupt University operations?
“Disruption” is largely dependent on context. Many factors may influence what rises to the level of disruptive, including but not limited to the size and configuration of the space, proximity to academic or administrative functions, and number of participants. Mere inconvenience is not a basis to abridge free expression.
Determinations regarding disruption must be made without reference to the content of any expression associated with the activity. Activities outdoors that substantially and materially disrupt or interfere with University activities or operations are not permitted. For example, prohibited activities may include blocking sidewalks and exterior building doors, sustained loud noise directly outside a classroom or office during business or class hours, and blocking roads without permission. Blocking pathways, doors, service counters, or otherwise impeding university efforts intended to assist with accessibility for persons with disabilities in compliance with the ADA is not permitted.
In general, disruption is defined as conduct that results in, or imminently threatens, the following:
- Substantial and material interference with the ability of students, faculty, and staff to engage in university activities and operations, including teaching, learning, studying, research, academic, extracurricular and student life, administrative, and other supporting activities;
- Substantial hindering or impeding of pedestrian or vehicular traffic, including by blocking building doors; and
- Substantial and material interference with an authorized event or activity conducted in university spaces, including expressive activities permitted under this policy.
In addition, disruption includes behavior that is not protected speech, including actual or imminent threat of violence, physical harm to individuals, or violation of a statute, regulation, ordinance, or legal requirement, and damage to university or other personal property.
Safety and Community
What can I do if I feel targeted or upset by an event or demonstration on campus?
There are a few possibilities for you if you are feeling targeted or upset.
- Is there an opportunity for you to safely engage with the event sponsors or producers and ask questions? We recommend that you approach this opportunity with a spirit of creating dialog, not interruption or violence.
- You can organize a counter-event or create a student organization with an opposing view and host your own event.
- You can silently protest.
- We know that some protected speech activity can cause real emotional and psychological harm. Seek out resources if you need immediate self-care. These can be on campus, like a trusted advisor or circle of friends, student resource centers, GDI or SHAC.
- Find out as much information as you can. It is often difficult to seek information if you are jarred by an unexpected event. However, if you have notice of the event, ask questions and find out the who, what and when so you have all of the information.
- Remember that the First Amendment protects free speech. Often we don’t like what people are saying, or disagree with an ideology, but they still have the right to host an event or a speaker.
What is PSU’s policy if I feel harassed by expressive activities?
Discrimination or Discriminatory Harassment based on a protected class is strictly prohibited by PSU. Anyone who believes that they have experienced or witnessed conduct prohibited under PSU’s Prohibited Discrimination and Harassment Policy is strongly encouraged to promptly report it to any of the following PSU employees:
- A supervisor or department head most directly concerned, excluding the person accused of the conduct prohibited under this policy;
- Any academic or administrative official of PSU including but not limited to, the President, Vice President, University Counsel, the Provost, Vice Provost, Dean, Chair or a Director;
- The Office of Equity & Compliance;
- The Office of the Dean of Student Life;
- PSU’s Title IX Coordinator(s); or
- Campus Public Safety
What about speech in the classroom or spaces like resource centers? Can people say whatever they want in these spaces? What can I do about it?
Although the First Amendment gives people the right to decide where best to express themselves, the right to exercise free-speech rights may hinge on where you choose to exercise those rights. The Supreme Court has said that public entities like PSU have discretion in reasonably regulating the “time, place, and manner” of speech. The right to speak on campus does not mean people have a right to speak any time, at any place and in any manner they wish. The campus can regulate where, when and how speech occurs to ensure the functioning of the campus and achieve important goals, such as protecting public safety.
What is the student conduct code and how does it apply to behavior?
The Code of Student Conduct outlines the expectations that we have of each other as students and members of the community. The Code outlines prohibited behavior, the process for addressing behavior that may violate the Code, and the consequences for violations of the Code. Engaging in unprotected categories of speech, such as engaging in illegal behavior, civil disobedience, harassment or discrimination as defined by PSU policy, may result in student conduct sanctions or discipline in employment depending on the circumstances and in accordance with processes laid out in PSU policies and collective bargaining agreements.
What potential consequences can I face for engaging in civil disobedience, illegal activity, or for violating University policies?
Expressive activity that rises to the level of civil disobedience, illegal acts (including destruction of property or criminal trespass), or results in a violation of University policies may result in potential criminal charges or exclusion from campus. Students may also be subject to sanctions under the student conduct code, and employees may be subject to disciplinary action in accordance with applicable university policies, processes and CBA's.
I have more questions, who can I ask?