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Free speech and EP 15

Elizabeth Blanks Hindman, Murrow College of Communication
1st Amendment to the U.S. Constitution: "Congress shall make no law...abridging the freedom of speech, or of the press; or the right of the people to peaceably assemble, and to petition the Government for the redress of grievances."
Nov-Dec 2017 Gallup poll of college students' perceptions of first amendment freedoms and campus climate:
  • 64% of college students (66% of white students; 54% of black students) see freedom of speech as secure in 2017 (down from 73% overall in 2016)
  • 61% of college students agree campus climate prevents some people from expressing their views because others might find them offensive
    - Democrats (63%), Independents (62%), Republicans (53%)
    - 69% believe political conservatives can freely express themselves on campus
    - 92% believe political liberals can freely express themselves on campus
  • 56% believe protecting free speech is extremely important in a democracy; 52% believe promoting an inclusive society is extremely important in a democracy; when asked to choose which is more important, students say inclusion is more important than free speech (53% to 46%)
  • 70% favor allowing all types of speech (down from 78% in 2016)
  • 29% want to prohibit offensive or biased speech to create "positive learning environments for all students" (up from 22% in 2016)
  • Students want speech regulation on campus:
    - 73% favor policies prohibiting language that is intentionally offensive
    - 60% favor banning costumes that stereotype racial or ethnic groups
    - 83% favor establishing free speech zones on campus
  • 57% say most political discussion on campus happens on social media/online (not in class or public spaces)
Brief history:
  • For the fast 150 or so years of the United States' existence, the speech of marginalized people was not protected, despite the language of the 1st Amendment, in part because state laws could still restrict speech
    - abolitionists, slaves (and after the Civil War, former slaves)
    - advocates for women's rights
    - socialists,
    - pacifists and anti-war (WWI),
    - union organizers and members
    - religious minorities, etc.
  • This began to change in 1925, and accelerated through the Civil Rights and anti-war movements of the 1960s, until by 2018 the 1s t Amendment protects most speech, including that which is offensive, hateful, critical of government,
  • We protect speech for several general reasons: It is part of the marketplace of ideas; it helps in political self­ determination; it serves as a check on the government; it serves as a release valve; it is critical in the development of individuals
    - "When ideas compete in the market for acceptance, full and free discussion exposes the false and they gain
few adherents. Full and free discussion even of ideas we hate encourages the testing of our own prejudices and preconceptions" (Justice William 0. Douglas, dissenting in Dennis v. United States)
Current protections of speech
  • The government (including WSU) may not regulate/punish speech based on the content of that speech, or the viewpoint of the speaker
    - So, for example, the government cannot punish us for criticizing public officials, for expressing our  political/religious/ideological beliefs, or for advocating harmful/hateful ideas
  • The government (including WSU) may regulate speech based on the time, place, and manner in which that speech occurs, as long as those regulations are not based on the speech's/speaker's content/topic/viewpoint
    - So, for example, WSU cannot discriminate against groups/individuals who want to protest on Terrell Mall, though WSU may enact regulations that apply to all individuals/groups (such as noise and time restrictions, or requirements that groups have a contact person, give the time/date of protests, and estimated number of participants)
  • WSU may articulate its own point of view, its own values
  • Hateful speech is protected under the There is no legal definition of hate speech. One informal working definition is:
    - Insults, slurs, epithets, , aimed at an individual or group based on unchangeable characteristics of that individual/group, AND
    - Which have a social or historical context of prejudice
Speech is protected until it crosses the line and becomes action or behavior that can be regulated/punished. Some instances of hate speech might also fall under one of the following categories (and thus be regulatable/punishable)
  • Discriminatory harassment: "[l]mproper conduct toward a particular individual, individuals or groups on the basis of one or more of the protected classes... that is sufficiently severe, persistent, or pervasive that it has the purpose or effect of creating an intimidating, hostile, or offensive environment; or unreasonably interfering with work, academic performance, living environment, personal security, or participation in any WSU activity." (EP 15)
  • Fighting words: Words that tend to incite an immediate breach of the peace (Chaplinsky v. New Hampshire, Gooding v. Wilson), or "those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction" (Cohen v. California)
  • True threats: "[S]tatements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals" (Virginia v. Black) In the 9th Circuit (covering Washington) the government must prove the speaker intended to threaten.
  • Intimidation: Conduct designed to inspire fear (Virginia v. Black)
  • Disruption/breach of the peace/disorderly conduct: Use of abusive language and intentionally creating risk of assault; intentional disruption of any lawful assembly or meeting of persons (Revised Code of Washington, 9A.84.030
  • Advocacy of illegal action: "[A]dvocacy of the use of force or of law violation ... where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action" (Brandenburg v. Ohio).