Freedom of Expression

The First Amendment to the U.S. Constitution protects free speech of members of the university community and their ability to speak on matters of public concern as private citizens:

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 of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Through the Fourteenth Amendment of the Constitution, the First Amendment’s protections were made effective against governmental entities such as the state and public institutions of higher education.

The First Amendment protects not only speech, but also expressive activities. The types of expression that the courts have determined are expressive activities include flag-burning, burning draft cards, political cartoons, protest armbands, political buttons and slogans on T-shirts. During the second wave of the feminist movement in the 1960s, women burned their bras to protest gender inequality. Speech involving issues of public concern, such as political and social matters, have the most protection. But while some activity — such as burning a cross — may be protected as First Amendment speech, it could nevertheless be subject to criminal prosecution, if it violates criminal laws that do not involve the content of the speech.

Not all speech is protected. Speech that does not fall under the protection of the First Amendment includes fighting words, harassment, obscenity, incitement to imminent lawless action or true threats. The courts determine on a case-by-case basis whether speech falls within one of these exceptions and judge speech using high thresholds that err on the side of protecting speech. In fact, the Supreme Court has upheld freedom of speech even in the face of a speaker’s utmost efforts to offend.

No, there is no First Amendment hate speech exception. Hate speech has no definition in case law, but it is generally understood to mean hurtful and offensive speech targeted against certain groups and individuals.

Very recently the United States Supreme Court held that the Patent and Trademark Office could not deny trademark registrations on the grounds that they were offensive, including that the proposed trademark contained racial slurs. “We have said time and again that the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers . . . Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express the thought that we hate.”

At CU Denver, we will make efforts to promote a culture of respect and civility, but we also recognize the constitutional boundaries that protect offensive speech.

The university has adopted Campus Administrative Policy 3018, Expressive Activities. Policy 3018 is intended to promote lawful, non-commercial expression across the university and states the time, place and manner restrictions governing speech in public areas of the campus.  The university does not designate any area on campus as a free-speech zone and does not restrict student expressive activities to particular areas of campus.

Under both Colorado law and university policy, enrolled students have broad expressive rights in generally accessible open outdoor spaces. The Campus Policy 3018 designates these open outdoor areas as “student forums.”

Student forums are generally available to students for speech and expressive purposes, provided that those activities are consistent with the campus policy. Most importantly, while students are welcome and entitled to express themselves in student forums across campus, they may not do so in a way that disrupts previously scheduled events, impedes normal university operations or the flow of traffic, or endangers other people or property.

Yes, these activities are all protected expression for students in student forums.  Campus Administrative Policy 3018 sets forth the parameters for canvassing on university property.

No. Students can express themselves in outdoor student forums without scheduling or permission.

However, students should understand that Campus Administrative Policy 3018 gives priority to previously scheduled events. Campus Administrative Policy 3018 also disallows activities that would materially and substantially disrupt university teaching, research, or administrative functions.

Within these parameters, students may protest without advance scheduling or approval.

In most cases, yes.

For rallies where advance scheduling is feasible, the administration encourages students to schedule the event through the event scheduling process, to ensure that the students’ preferred location and adequate resources are available. Maintaining the integrity of the educational environment and the safety of our students, faculty and staff are our highest priorities. However, as previously stated, Campus Administrative Policy 3018 does not require students to schedule expressive activities in advance.

Campus Policy 3018 restricts noise levels, the installation of temporary structures, and the deposit of unattended literature. It also imposes many common-sense safety measures, for example, any activity may not unreasonably disrupt traffic, either vehicular or pedestrian, or interfere with the ingress or egress to or from a building. Additionally, scheduled events in outdoor spaces may require approvals to ensure sanitation and safety and the orderly operation of university business.

No. The university does not consider the content of a speaker’s message when determining how to assess costs for an event. The university makes every effort to ensure that costs associated with an event are consistent and equally applied for all events, regardless of whether the event speaker’s viewpoints are controversial or will possibly draw protests. With respect to security costs, The Auraria Higher Education Police Department (AHEC) employs a matrix to determine the safety needs of a particular event. The matrix takes into account the location of the event and the anticipated crowd size, but it does not impose higher costs because the university agrees or disagrees with the speaker’s message. If AHEC Police or other campus officials determine that a particular event will require extra security measures or staffing, then the university will work with the organizer to provide for safety and security. When necessary, the university has absorbed the additional expense for events that have unusual security needs.

Note that different venues on campus may charge different rates for room rentals or other event needs. These fees are determined in accordance with the standard rate tables of the venue, and do not take into account the viewpoints or controversial nature of a speaker. Event organizers requiring special facility arrangements, such as audio visual equipment or special staffing, may be charged fees in accordance with standard rate tables for these requests.

No. The First Amendment protects a speaker’s viewpoints regarding these matters. Of course, other legal principles may apply to this type of speech. For example, if the speech is directed at an individual and meets the legal definition of defamation, then such speech may not be protected. In addition, the university has robust non-discrimination and harassment policies, which may be implicated if speech is directed towards a particular person, rather than a group as a whole.

Some speech that many consider offensive does not constitute discrimination or harassment. To rise to the level of being discriminatory or harassing, the speech must be sufficiently severe and pervasive that it denies a person equal access to an equal educational or employment opportunity. At CU Denver, we will make efforts to promote a culture of respect and civility, as we recognize that universities best function when the dialogue advances our academic purposes. However, our policies defining discrimination and harassment must also recognize the constitutional protections for expressive activities.

Speakers on campus, including controversial speakers who have been invited by student groups, are afforded the full protections of the First Amendment. The events for those speakers, however, are subject to the policy requirements. In administering those policy requirements, the campus may not consider the substance of the speaker’s viewpoint. The controversial nature of the speaker is immaterial; speech cannot be restricted based upon whether the university agrees or disagrees with a speaker’s viewpoint.

No. Courts have clarified that a recent history of unrest does not necessarily mean that violence will occur at a future event, nor does it provide grounds for the university to deny the speaker the ability to speak. The courts have recognized that free speech can be imperiled if those who oppose a speaker’s message can prevent the speech from occurring. Instead of denying a controversial speaker the ability to speak, free speech anticipates that those who oppose a speaker should have the ability to engage in counter speech.

Also, restricting speech before it occurs is called a “prior restraint.” The courts regularly reject governmental efforts to prevent speech from occurring. Of course, the university’s most important commitment is protecting the safety of both speakers and listeners. If there is a serious threat to public safety, particularly a serious threat of violence, and there is no option but to cancel the event, then the university may do so, though this is a last resort.

The university employs a High Impact Events Team (HIET) to allow it to coordinate events and ensure that they occur safely and without disrupting the educational environment. HIET is a multidisciplinary clearinghouse for significant events on campus. Some  of HIET’s primary duties are evaluation and coordination of such significant events among multiple administrative units, academic departments, and student groups across campus as well as with other University stakeholders and community partners (e.g., facilities owners, the Office of Information Technology, Parking Services, the City of Aurora, Affiliates, etc.). HIET can be a valuable resource for campus event planners seeking to ensure that an event complies with campus policy and that all necessary stakeholders are aware of the potential issues.

Yes, all members of the university community enjoy freedom of expression, as protected by the First Amendment, Colorado’s constitution, and the Laws of the Regents. Freedom of expression not only protects freedom of speech, but the Laws of the Regents recognize that all members of the university community have a responsibility to protect the university as a forum for the free expression of ideas.

When members of the university community speak or write as citizens, outside of the course of university activities, on matters of political, academic, artistic, or social concern, the university shall not censor their expression, initiate disciplinary action against them, or otherwise subject them to adverse action because it disapproves of the substance of their expression.

As described below, speech that occurs in research or in the classroom is subject to the university’s policies related to academic freedom, instead of the policies that pertain to freedom of expression.

Yes. Just as the First Amendment protects a speaker’s right to express their views, it also protects the right of citizens to peaceably assemble in protest, and this right cannot be infringed based on the viewpoint of the protesters. However, a protest that causes material disruption or violence is not protected, and police may be required to act for safety purposes depending on the circumstances. The university would encourage protestors to follow the lawful instructions of police officers or university officials working in connection with the event. This may include directions to prevent destruction of property, or crowd dispersal where it is necessary to preserve public safety.

As described above, reasonable time, place or manner regulations may apply to protest activity. It is important to read and understand the university’s policies and procedures with respect to the use of campus grounds and facilities. Of course, such regulations do not take into account the viewpoints expressed by protestors. Rather, as described in the campus policy, these regulations are designed to prevent disruption of the university’s educational mission and to safeguard the security of the campus community.

Lastly, university policy —such as the respective school/college Honor or Professionalism Codes may apply to protester activity depending on the circumstances. For example, protestor conduct that causes serious disruption or incites others to commit violence or property destruction may have legal and campus policy consequences.

Probably not. While this area of the law is unclear and complex, a speaker’s First Amendment rights would be diminished if the crowd shouted them down whenever they tried to speak. Of course, protesters have the right to assemble and express their disagreement with a speaker. But the effective silencing of another speaker’s expression could itself be considered a violation of free speech. 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.

There is a process for holding events on campus and there are a host of considerations that go into holding events on campus. The Expressive Activities Campus Administrative Policy 3018 outlines the event space request process.

The university and its faculty establish the standards of academic performance for students who are enrolled in their classes. A student who enrolls in a course is responsible for meeting those standards of performance, and academic freedom does not allow a student to avoid the course requirements or fail to meet standards of academic performance, even if the student disagrees with those requirements or standards.

Students are also responsible for maintaining the integrity of the academic environment. The instructor for each course has the ability to establish standards of conduct and reasonable procedures for classroom discussion. Academic freedom does not provide students with the right to disrupt the class, disregard the classroom procedures for discussion, or to raise discussions that are unrelated to the topic of the class or course.

The concepts of free speech and academic freedom are distinctly different, and both have been treated in great depth for well over 100 years, making any attempt at a short description at risk of oversimplification. That said, as described in the Laws of the Regents, expression in research and teaching is protected by and subject to the Laws of the Regents and other policies defining academic freedom, while speech that occurs outside of employment or study is protected as freedom of expression.

Another fundamental difference that distinguishes academic freedom from general freedom of expression is the concept of and search for the truth, and the disciplinary bounds in which scholarship occurs. Academic freedom, in general terms, is the right afforded to faculty members to create and disseminate knowledge and seek truth as they know it, subject to the standards of their disciplines and the rational methods by which truth is established. Academic freedom also protects the rights of students to pursue their studies and to formulate their own opinions on the matters being taught, subject to the academic requirements within a program of study or course.

For faculty members, academic freedom attaches to research and teaching. The Laws of the Regents broadly define academic freedom as the “freedom to study, learn, and conduct scholarship and creative work within their discipline, and to communicate the results of these pursuits to others, bound only by the control and authority of the rational methods by which knowledge is established in the field.” This definition embraces academic debate as the means to advance knowledge and embraces the “fullest exposure to conflicting opinions.”

Academic freedom requires that faculty members not be subjected to direct or indirect pressures in an attempt to influence their work in a manner that would conflict with professional standards of the field. The Board of Regents and administration shall not impose such pressures or influence and shall resist such pressures or interference when exerted from outside the university. Notably, the appointment, reappointment, promotion of all faculty, and award of tenure to tenure-track faculty, shall not be awarded or denied based on extrinsic considerations such as a faculty member’s expression of political, social, or religious views.

Faculty members have the responsibility to maintain competence; to devote themselves to developing and improving their teaching, scholarship, research, creative work, clinical activities, writing, and speaking; and to act with integrity, in accordance with the highest standards of their profession. Faculty members are responsible for requirements (e.g., course content, topic order, course schedule, assessment mechanisms) specified by responsible faculty bodies, such as curriculum committees. Faculty members should be able to justify, in terms of curriculum and student learning, all materials introduced into the classroom.

Finally, it’s important to note that academic freedom does not protect improper or unethical conduct. All members of the university community remain subject to the standards of ethical conduct stated in the Laws of the Regents and regent policy, as well as Administrative Policy Statements and campus policies.

Academic freedom also protects students. While faculty have the right to establish classroom procedures to ensure orderly discussion and progress towards the goals of a class, students have the freedom to raise questions and express reasoned opinions on the matters being discussed. Students also have the ability to discuss matters related to their courses with faculty during office hours and take reasoned exception to the views or methods offered in any course of study. Students should be evaluated solely on academic performance, which shall be assessed according to the published requirements established by the instructor or academic unit. If students believe their academic freedom rights have been violated (report an academic freedom concern), the campus will investigate complaints and remediate confirmed violations.

But it’s always important to remember that the instructor has the right to determine the standards of scholarship for a class.