Respect is a core value at MSU and includes treating people with dignity and civility, but speech that does not meet these ideals may nonetheless be protected speech under the First Amendment to the United States Constitution. These frequently asked questions offer a general overview of how the First Amendment applies in a public university setting like Michigan State University. First Amendment law is complicated, constantly evolving and fact intensive. The following is intended only as a general educational overview and not as legal advice or a statement of how the law would necessarily apply in a specific instance.
“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 the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
Yes. The First Amendment applies to government entities, which includes public colleges and universities, including MSU.
Freedom of speech is the right of persons to articulate their opinions and ideas without interference or retaliation from the government. The term “speech” constitutes expression that includes more than just words and can also include what a person wears, reads, performs, protests and more.
In the United States, freedom of speech is strongly protected by the First Amendment of the U.S. Constitution, as well as by state and federal law. The United States’ free speech protections are among the strongest of any democracy; the First Amendment protects speech that some may view as offensive, hateful or harassing.
There are limited exceptions established in the law.
Speech not protected by the First Amendment includes:
Speech that would be deemed a “true threat”: Speech that a person reasonably would perceive as an immediate threat to their own physical safety is not protected by the First Amendment. For example, if a group of students yelled at a student with a threat of physical harm, such speech would likely not be protected.
Incitement of illegal activity: There is no right to incite people to break the law, including to commit acts of violence. To constitute incitement, the U.S. Supreme Court has concluded that there must be a substantial likelihood of imminent illegal activity and the speech must be directed to cause that imminent illegal activity. For example, a speaker on campus who exhorts 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 that imminent illegal activity.
Discriminatory harassment: Unwelcome conduct based on an individual’s protected identity (e.g., race, gender, national origin, sexual orientation/identity, religion, etc.) that, based on the totality of the circumstances, is subjectively and objectively offensive and is so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from the university’s education program or activity (i.e., creates a hostile environment). Conduct prohibited by MSU’s Anti-Discrimination Policy and Relationship Violence, Sexual Misconduct and Title IX Policy is not protected by the First Amendment.
The term “hate speech” does not have a legal definition in the United States. Nevertheless, the term often refers to speech that insults or demeans a person or group of people on the basis of protected identity, such as race, sex, religion, ethnic origin, sexual orientation/identity, disability or gender identity.
While speech of this kind does not align with MSU’s values, there is no “hate speech” exception to the First Amendment. “Hate speech” is constitutionally protected speech unless it falls within one of the exceptions established in the law. When speech is protected by the First Amendment, even if it is not consistent with MSU’s values, MSU cannot prohibit or impose discipline for such speech.
Even though MSU cannot prohibit or impose discipline for protected speech, MSU may still have an obligation to determine whether speech and/or other unwelcome conduct based on a protected identity has created a hostile environment and, if so, will respond to redress the environment. Anyone who believes they or others are experiencing a hostile environment in a university program or activity based on their protected identity should report to the Office for Civil Rights and Title IX Education and Compliance, or OCR. (A hostile environment is created by conduct that is subjectively and objectively offensive and so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from the university’s education program or activity.)
“Hate speech” may not be protected if it also qualifies as a “true threat,” “discriminatory harassment” or another category of unprotected speech. Anyone who has been subject to or witnessed hate speech on campus and is unsure whether it constitutes protected speech is encouraged to report the incident. The Department of Police and Public Safety should be notified of threats to physical safety or incitement of illegal activity. The Office for Civil Rights and Title IX Education and Compliance should be notified of anything that may constitute discriminatory harassment under MSU’s Anti-Discrimination Policy or Relationship Violence, Sexual Misconduct and Title IX Policy. Matters may also be referred to applicable college/unit leadership, Human Resources or student conduct offices for review under any other student, staff or faculty policies.
Under State of Michigan law (Michigan Penal Code § 750.147b(1)-(2)), an individual is guilty of a hate crime if that individual maliciously and intentionally (1) uses force or violence against another individual, (2) causes bodily injury to another individual, (3) stalks another individual, 4), damages, destroys, or defaces any real or personal property of another individual without consent of the individual, or (5) makes a true threat to engage in conduct described in (1)-(4), based in whole or in part on an actual or perceived characteristic—race or color, religion, sex, sexual orientation, gender identity or expression, physical or mental disability, age, ethnicity, national oration, or association or affiliation with an individual or group of individuals in whole or in part based on one of the aforementioned characteristics—of that individual.
You may report hate crimes to the Department of Police and Public Safety by calling 911 in the event of an emergency or calling the nonemergency line at 517-355-2221.
As a public institution, the First Amendment generally prohibits MSU from banning or punishing speech based on its content or viewpoint.
Student organizations are welcome to provide access to appropriate campus venues that have been made available for that purpose, in accordance with the policies outlined in the Registered Student Organization Handbook’s On Campus Events section. The university cannot take away that right or withdraw resources based on the views of the invited speaker. Doing so would violate the First Amendment rights of the students in the organization.
No, as this would violate the First Amendment. In some circumstances, MSU can cancel events if there are sufficient grounds that are unrelated to content or viewpoint expressed by the speaker or event; for example, if there are serious public safety concerns.
The U.S. Supreme Court has concluded that public entities, including MSU, have discretion to regulate the “time, place and manner” of speech. The right to speak on campus is not a right to speak at any time, at any place and in any manner that a person wishes. MSU can regulate where, when and how speech occurs in order to ensure the functioning of the campus and achievement of our important goals, such as educating students and protecting public safety.
Accordingly, the First Amendment does not protect an individual’s acts to disrupt a class, use sound amplification devices, or impede other people’s ability to enter and exit buildings, for example.
When it comes to controversial speakers, MSU invokes this time, place and manner discretion in order to hold events at a time and location that maximizes the chances that an event will proceed successfully and safely. MSU heeds the MSU Department of Police and Public Safety’s assessment of how best to hold safe and successful events.
The need to consider time, place and manner restrictions is the reason that MSU requires students to work with the Division of Student Affairs when setting up their events, as opposed to scheduling and creating events on their own. If an event is scheduled without following MSU policy, it may be canceled.
University employees (including faculty and staff, as well as student employees in the context of their employment) may have free speech rights in certain contexts because MSU is a public (state government) employer. Generally, this depends on whether: 1) the speech was made as a private citizen, and 2) the speech relates to a matter of public concern (i.e., a matter of political, social or other concern to the community). If the speech was made as a private citizen about a matter of public concern, then MSU’s interest in maintaining an efficient and effective workplace is weighed against the interest in the speech by the employee to determine if there is protection under the First Amendment. Supervisors and unit leaders should consult with the Office of the General Counsel, Faculty and Academic Staff Affairs, or Employee and Labor Relations before making any employment decisions related to potential First Amendment issues in the workplace.
MSU adheres to the principles of academic freedom with correlative responsibilities as stated by the American Association of University Professors and other organizations. This is outlined in the Faculty Handbook in the Academic Freedom policy. This important principle is fundamental to the university’s core mission — to advance knowledge and transform lives through education. Given its significance in higher education, when applied in the First Amendment context, speech that implicates academic freedom may be provided greater protection than other workplace speech.
Yes. The Registered Student Organization Handbook provides information to assist students, staff and faculty with all aspects of student organization functioning.
If the event is a campaign event for an individual running for local, state or national political office, generally, yes. This is required by various campaign finance laws. Other types of events may not have required fees. Please contact the Office of Spartan Experiences for more information.
MSU is an open campus; candidates and members of the community may be permitted in public areas of campus and buildings and may hand out leaflets provided they do not disrupt university activities or services. Access to the living areas of residence halls is limited to residents and authorized university personnel.
MSU recognizes the basic role of political parties and elections in the United States political system of governance and, therefore, acknowledges MSU’s responsibility to facilitate the free exchange of ideas in a political as well as an academic sense. MSU encourages members of the community (students and employees) to be informed about and participate in the political process for those who are permitted to do so.
Nevertheless, as a public institution serving and supported by all the people of the state of Michigan, MSU must take care to avoid political favoritism and improper partisan activity. In order to meet these dual public responsibilities, MSU has a policy on the use of facilities for political activities. MSU also has developed guidelines regarding political activities on campus.
Yes. MSU encourages all who engage in protest activity to do so safely and in accordance with the university’s Disorderly Assemblages or Conduct ordinance. Below are some helpful reminders:
Avoid activity that obstructs the free movement of vehicles or persons such as blocking hallways, entryways, walkways and roads.
Do not jeopardize the safety and security of others.
Leave an 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. DPPS should be notified of illegal activity.
Yes; however, counter-protests must also be conducted in accordance with the university’s Disorderly Assemblages or Conduct ordinance.
No. While the First Amendment protects freedom of speech and expression, it does not protect engagement in civil disobedience. By definition, “civil disobedience” involves the violation of laws or regulations and has historically played a significant role in various social movements. Participation in civil disobedience, whether on or off campus, can result in arrest and criminal charges, or MSU conduct charges or discipline for students and employees. For example, if student protesters block access to a campus building, disrupt classes or events, or prevent someone from accessing educational resources or programs, they may be subject to discipline under MSU’s Student Rights and Responsibilities. They may also be arrested and subject to a criminal proceeding if the conduct constitutes a crime.
Generally, no. If, for example, a speaker is giving a scheduled speech in an auditorium on campus, attempts to prevent that speaker from speaking by disrupting the event would likely not be protected by the First Amendment. Protests conducted in a nearby public forum that comply with the university’s Disorderly Assemblages or Conduct ordinance likely would be protected by the First Amendment.
As noted in the answer to question 9, the U.S. Supreme Court has concluded that public entities like MSU have discretion in regulating the “time, place and manner” of speech. The right to speak on campus is not a right to speak at any time, at any place and in any manner that a person wishes. These restrictions do not vary depending on the views or ideas being expressed; rather, they are about ensuring that speech occurs in a way that does not disrupt MSU’s mission or endanger public safety.
As noted above, the university’s Disorderly Assemblages or Conduct ordinance is designed to prevent substantial disruption of educational activities, protect lawful access to campus programs and facilities, avoid unsafe behavior, and prevent the destruction of property. Its application does not vary according to the cause or content of a particular protest, speech or other form of expression, and the rules and regulations are designed to enable extensive opportunity for expressive activity.
Individuals are permitted to engage in protest or speak for or against any topic or activity, even if that topic or activity may be viewed as hateful or offensive, as long as the speech does not fall into one of the narrow categories of speech that are not protected by the First Amendment. Examples of unprotected speech include true threats, incitement to imminent lawless action, and discriminatory harassment.
If protest activity is protected by the First Amendment, MSU cannot prohibit or impose discipline for such activity. However, MSU may still have an obligation to determine if the activity has created a hostile environment and, if so, take steps to remediate the environment.
Yes, MSU’s social media accounts are maintained in order to provide information about the university and share university stories, news and highlights. MSU welcomes comments on these pages but encourages civil discourse. Read MSU’s community engagement guidelines here.
It depends; see above answers to questions 4 and 10.
MSU faculty and academic staff also are expected to differentiate carefully their official activities as faculty members from their personal activities as citizens and, when the situation warrants, to make it clear that, when speaking as private citizens, they do not speak for the university.
Yes, the Office of the Provost has collated several resources in support of faculty and staff who are targeted by online attacks. MSU will address any hostile environment created as a result of the speech.