The University of Oregon is required to respect the constitutional right to free speech and has adopted an additional commitment, through policy, to academic freedom.

Around the O recently met with the UO Office of the General Counsel to discuss the laws and university policies around free speech and protest on campus.

Q: What speech and activities are protected under the First Amendment to the U.S. Constitution?

A: The First Amendment protects speech, which includes expressive conduct. It includes not only spoken words, but also written messages that might be on, for example, a sign or T-shirt. The seminal free speech case in education involved students silently wearing black armbands to express disagreement with the Vietnam War. The First Amendment’s protection traditionally covers speech and activity intended to convey a message.

Q: What are some examples of speech or activities that aren’t protected?

A: Speech that’s unprotected includes “true threats” and acts solely intended to further crime such as forgery or fraud.

The First Amendment protects a large swath of speech, and it has a number of exceptions. Oregon’s Constitution also protects speech and has a narrower list of exceptions, including “true threats.” Essentially, Oregon’s Constitution protects more speech than the federal First Amendment.

Q: What is meant by the term “true threat?”

A: A true threat is a threat in which the person hearing it expects or has a fear of imminent and serious personal violence from the speaker. It’s unequivocal, it’s immediate, and you would say objectively that it is likely to be followed by some unlawful act. 

Q: You’ve described the federal and state protections of free speech. How does the additional layer of university policy fit in?

A: The federal and state constitutions are the baseline, and we operate within those worlds. Our university policy can’t violate state and federal free speech rights, but it does provide more specific guidance. Because the university is not a public forum where anyone can say anything at any time, the university can impose reasonable restrictions to ensure the university can fulfill its educational mission. The Student Conduct Code, the Campus Visitors Policy, and other rules exist for that reason. For example, it is a conduct violation to fail to comply with the reasonable directive of a UO official. So it wouldn’t be a violation of the First Amendment or the Oregon Constitution to ask a person to move their protest to enable a class to take place; the request preserves their ability to speak somewhere else. But it would also allow for consequences under university policy if they failed to comply.

Q:  Where is more information available about the kinds of free speech activities that are and aren’t allowed under University of Oregon policy?

A:  UO policies can be viewed at UO Policy Library. Go to the UO General Counsel’s website at generalcounsel.uoregon.edu for Free Speech and Demonstration Guidelines.

Also consider the following from UO’s Policy on Academic Freedom: The freedom to speak and express in a university context is special. Academic freedom protects aspects of free expression that aren’t captured in the First Amendment or the Oregon Constitution. Academic freedom is the freedom to research, the freedom to teach, and arguably the freedom to learn. It allows for students and faculty to have a space in which it is safe to explore and to push boundaries. A place where it is safe to even consider controversial statements or ideas for the purpose of learning and expanding research and knowledge.

Q: How does the university respond when campus activities are in conflict with each other?

A: If a protest results in students in class not being able to hear what’s going on, for example, then the university may take action to limit the protest’s interference.  If the protest were to rise to the level of discrimination or harassment, then the university is not only empowered, but may be obligated under federal law, to act to limit the impact of the protest to preserve students’ rights to access university programs.

Q: When does exercising free speech or dissent cross into criminal behavior?

A: Harassment is an example where you might think it’s only speech, but when it’s repeated and targeted, you might find yourself entering the world of criminal stalking or criminal harassment.

For members of the campus community, even if behavior doesn’t constitute a crime, it might satisfy the university standard of harassment. The standard for harassment is whether it creates a hostile environment. A hostile environment is one where the conduct is unwelcome, is offensive and so severe or pervasive, that it limits a person’s ability to participate in the school’s programs or activities. 

People often expect that if someone says something that’s offensive, or even hateful, that the university should be able to stop that, and that’s often not the case. Much of that speech is protected under the law. However, if it’s repeated enough, if a reasonable person would find it offensive, and if it limits people’s ability to access programs or services, then there may be a hostile environment. 

To prevent that, the Office of Investigations and Civil Rights Compliance fields reports and, as needed, helps members of the campus community access accommodations. You don’t have to participate in an investigation to get support from that office, such as a connection to counseling services or help finding alternative ways to fulfill the requirements of a class. You don’t have to have a hostile environment before that office can provide support.

Q: What are some additional resources? 

A: Go to Information and Sources on Free Speech for more information from the U.S. Bill of Rights, the Oregon Constitution and the Association of American Universities.

The Office of Civil Rights has issued guidance letters on Title VI, which outline federal protections against discrimination and harassment.