Freedom of Speech FAQs

Freedom of Speech Frequently Asked Questions

 

Frequently Asked Questions: 

What does the First Amendment protect?

There are five freedoms in the First Amendment of the United States Constitution: freedom of religion, freedom of speech, freedom of the press, freedom of assembly, and freedom of petition.  While these freedoms appear absolute, they are not.  Exceptions arise in particular cases because they often come into conflict with other rights guaranteed by the Constitution.  This means that courts are forced to consider exceptions to rights in cases where one right comes into conflict with another right.  For example, we have the freedom of assembly but that does not mean we can assemble to block people from entering a polling place to exercise their right to vote.

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Does the First Amendment protect speech and expression at UMaine?

Yes, for the most part.  UMaine is a public institution.  The Supreme Court has ruled that the First Amendment does protect students and teachers in public schools.  In the landmark case of Tinker v. Des Moines, the Supreme Court explained, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.  This has been the unmistakable holding of this Court for almost 50 years.”  The Court did, however, note that the First Amendment rights of students are not absolute, “conduct by the student, in class or out of it, which for any reason-whether it stems from time, place, or type of behavior-materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the Constitutional guarantee of freedom of speech.”  UMaine is committed to making all efforts to preserve both freedom of speech and the many other rights in the Constitution that are guaranteed to members of the campus community.

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Does the First Amendment protect civil disobedience on campus?

No.  The First Amendment protects the right to dissent in many forms, but not civil disobedience.  By definition, civil disobedience refers to the refusal to obey laws by violating them.  A founding premise for society based on the rule of law and order is to adhere to the laws that are voted into existence.  In the United States, we have guaranteed the right to dissent, to protest, to assemble peaceably, to petition against a law, and to post legal challenges to laws we believe violate constitutional rights.  When dissent crosses over into the area called “time, place, manner” restrictions, dissent moves to civil disobedience.  Students may dissent against a range of policies and against political ideas in a number of ways.  Such dissent becomes unprotected civil disobedience when taking over a campus building, materially disrupting classes or events, trespassing, vandalizing, disturbing the peace, or other types of conduct subject to time, place, manner restrictions.  UMaine protects the freedom to dissent, and also seeks to raise awareness that participation in civil disobedience could potentially result in serious criminal or student conduct charges.

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What is “hate speech”?  Is it illegal?

The term “hate speech” is not defined by law.  The trouble with regulating hate speech is in the very attempt to define “hate speech” and how that type of speech would be regulated in practice.  Advocates and scholars of the First Amendment have wrestled with a few issues pertaining to the regulation of hate speech.  For example, three fundamental areas address the issue of “hate speech”:

    1. Advocates of the First Amendment tend to advocate a “more speech” solution to address hate speech.  This solution was made famous by the Whitney v. California Supreme Court decision: “If there be a time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.  Only an emergency can justify repression.”  The American Civil Liberties Union explained, for example, that, “where racist, sexist, and homophobic speech is concerned, the ACLU believes that more speech-not less-is the best revenge.  This is particularly true at universities, where the mission is to facilitate learning through open debate and study, and to enlighten.”  UMaine believes in the “process of learning” as central to addressing “hate speech.”  UMaine encourages active listening, dissent, and is committed to cultivating an educational environment to allow for the “process of education” as a condition for fulfilling the Court’s directions concerning the “more speech” solution.
    2. Scholars have wrestled for quite some time to generate ways to regulate “hate speech” -the trouble in discerning a workable standard lies in at least two realities: (1) The standard must be general enough to apply to any number of cases where “hate speech” is expressed.  If standards are too specific, those that hate find alternative forms of expression that would then need to be addressed in additional legislation (they may also fail to pass the viewpoint discrimination test of the court that targets-legislation cannot target particular viewpoints); and (2) General standards may serve as instruments that run counter to the desired objective.  In most cases, groups accuse each other of “hate speech”.  If sorted out in court, both sides run the risk of violating hate speech laws depending on the court making a given decision.
    3. Imminent lawless action, established in Brandenburg v. Ohio (1969), is a standard in determining the limits of free speech.  When a speaker intends to incite an imminent and likely violation of the law, the courts evaluate this action based on the following legal analysis:

If the advocacy is directed to inciting or producing imminent lawless action and if the advocacy is likely to incite or produce such action. 

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What is “academic freedom”?

“Academic freedom” is an idea rooted in the idea that the common good depends upon the free search for truth and its free exposition.  This includes freedom to research and teach.  “Academic freedom” includes correlative duties.  UMaine remains committed to academic freedom-educational institutions can advance knowledge and truth only by being open to the contestation of ideas.  This means protecting scientific, literacy, artistic, and political speech as a condition of thought.  Information is the currency of democracy and is the key to a life in pursuit of knowledge to advance the common good.  For more information on “academic freedom” see https://www.aaup.org/our-programs/academic-freedom/resources-academic-freedom.

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When does speech become harassment?

There is no bright line that determines when student speech becomes harassment.  Hence, we are left to interpret harassment based on general standards.  Generally, harassment requires that speech be of the following nature: (1) specifically targeted at a student or group of student, (2) repeated, and (3) intimidating or threatening.  In addition, for harassing speech to be identified, there generally must be demonstrable harm to a student, damage to a student’s property, interference with the student’s education, or disruption to the orderly operation of a school.  Categories that are unprotected by the First Amendment include harassment based on gender, disability, religion, race, color, or national origin.  Sexual harassment is also generally unprotected by the First Amendment. UMaine remains committed to working to maintain an educational environment free of harassing speech in order to encourage the free exchange of ideas and a robust learning environment.

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Is speech on the Internet entitled to the same level of protection as speech in print and other media?

Yes and No.  Mostly yes.  In principle, the Supreme Court in Reno v. ACLU rejected the government’s argument that speech on the Internet could be regulated more carefully than radio and television broadcasting.  The Court’s conclusion was that the Internet should be given the full protection of the First Amendment as it is with print media.  One important caveat-speech within certain private forums on the Internet may be subject to private company policies on acceptable speech.  The First Amendment pertains to congressional and government regulation of speech, and not the private regulation of speech.  So, for example, social media companies may restrict the speech of its users in ways the First Amendment would not permit if such companies were government entities.

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How does the UMaine Student Code of Conduct relate to the First Amendment?

UMaine takes pride in its tradition of maintaining civility and mutual respect toward all members of the university community.  This is intrinsic to the establishment of excellence in teaching and learning.  This also contributes to the maintenance of a productive workplace and an overall positive campus climate.  UMaine also takes pride in the diversity of its student body and employees and affirms that this diversity enriches the work and learning environment of the campus.  UMaine is committed to creating a community in which a diverse population can learn, live, and work in an atmosphere of tolerance, civility, and respect for the rights and sensibilities of each individual, without regard to economic status, ethnic background, political views, or other personal characteristics or beliefs.

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How does UMaine view the First Amendment on our campus?

UMaine supports and is committed to open, free, and robust discussion, debate, and exchange of ideas as an indispensable part of its educational mission, especially when the ideas expressed are controversial and unpopular.  UMaine also has the obligation, however, to ensure the safety and security of persons and property, and that University operations, functions, and events are not disrupted.  The time, place, and manner of persons exercising their rights of free expression, speech, assembly, and religious worship are subject to campus regulation.  These regulations apply to all members of the University community, including students, faculty, staff, administrators, volunteers, and non-affiliated members of the public, while on University property.

UMaine supports creative thoughtful, and respectful discourse where conflicting perspectives are vigorously debated and thoroughly discussed.  UMaine is dedicated to affording all members of the UMaine community the protections for free speech, expression, assembly, religion, and press available under the U.S. and Maine constitutions and all applicable federal and state laws, in accordance with the University’s purpose and function except insofar as limitations on those freedoms are necessary to UMaine’s functioning.  It is not the proper role of the University to attempt to shield persons from ideas and opinions they find unwelcome, disagreeable, ore even deeply offensive.  Although UMaine greatly values civility, and although all members of the UMaine community share in the responsibility for maintaining a climate of mutual respect, concerns about civility and mutual respect are not a justification for closing discussions of ideas, however offensive or disagreeable those ideas may be.  Yet, the University also has the duty to restrict expression that violates the law, falsely defames a specific individual, constitutes a genuine threat or harassment, unjustifiably invades substantial privacy and confidentiality interests, or is otherwise directly incompatible with the University’s functioning.

Additionally, UMaine may reasonably regulate the time, place, and manner of expression on University property and over its communication systems to ensure the expression does not disrupt ordinary University functions and activities.

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Reporting concerns and/or violations.

To report any concerns with, or violations of, your freedom of speech contact the Dean’s Suite at 207.581.1406.  They will work with you on reporting your concerns and any follow up associated with those concerns.

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What should I do if I’m being harassed and/or cyberbullied?

If you, or someone you know, is experiencing harassment or is being cyberbullied, contact The University of Maine Police Department at 207.581.4040 or the Dean’s Suite at 207.581.1406 to report these behaviors.  UMaine does not tolerate harassment or bullying of any kind and we will work with you to connect with resources on campus.

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