First Amendment

The First Amendment is a part of the U.S. Constitution and specifically protects an individual's right to free speech and expression. It prevents the Government from restricting or prohibiting the right of individuals to engage in spoken and written speech, as well as expressive activity.

The First Amendment states: “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.”

Despite the First Amendment referring to “Congress”, the U.S. Supreme Court has long held that the rights mentioned under the amendment apply to state and local government entities.

Since UW-Whitewater is a public institution and state entity, it is a requirement for the university to uphold these rights for all members of the university community, with restrictions only applying in certain circumstances. 

UW-Whitewater’s actions and policies must abide by the requirements and rights outlined in the First Amendment. Any restrictions may be considered a violation of the Constitution and lead to legal action taken against the university.

UW-Whitewater can legally place viewpoint-neutral and content-neutral limitations on speech, as long as they are reasonable. As outlined in Regent Policy Document 4-21, “time, place, and manner restrictions” can be put into place to ensure the safety, welfare, and prevention of disruptions of university functions. Typically, time, place, and manner restrictions are applied to classrooms, research labs, offices, museums, libraries, and pedestrian or vehicle traffic.

Below are the definitions of time, place, and manner restrictions at UW-Whitewater.

• Time restrictions - restrict speech or expression to certain times of day.
• Place restrictions - limit the physical or digital spaces in which speech or expression can occur.
• Manner restrictions - limit the way, or the method by which, speech or expression can be conveyed.

These restrictions should only be used to ensure that ordinary university activity is not disrupted. They should not be used in a manner that is inconsistent with the university’s commitment to a complete free and open discussion of ideas.

Several categories of speech are not protected by the First Amendment. But these instances are very limited and clearly defined.

The categories of speech that are not protected by the First Amendment include:

• Defamation – a written (libel) or spoken (slander) statement that injures a third party’s reputation
• Obscenity and child pornography – obscenity is a category of pornography that violates contemporary community standards and has no serious literary, artistic, political, or scientific value. It’s acceptable for state and federal criminal laws to prohibit obscenity and child pornography.
• True threats – specific threats directed to a person or group with the intent to place them in fear of bodily harm or death
• Incitement to immediately break the law
• Fighting Words – intimidating speech directed at a specific individual in a face-to-face confrontation that is likely to provoke a violent reaction
• Harassment (defined by law and university policy)
• Non-expressive conduct such as disruption of university functions, property damage, trespassing, or blocking entrances to buildings
• Intellectual property violations
• Speech that may constitute a crime, such as fraud and conspiracy

In the First Amendment’s context, these words have specific legal definitions and may be stricter than the everyday meaning people give them. Whether speech or expression is unprotected requires a legal assessment, as it varies on a case-by-case basis.

Hate speech is generally protected by the First Amendment. The American Library Association defines hate speech as “any form of expression through which speakers intend to vilify, humiliate, or incite hatred against a group or a class of persons on the basis of race, religion, skin color, sexual identity, gender identity, ethnicity, disability, or national origin”. Courts have ruled that restrictions on hate speech would violate one’s right to freedom of expression. Since UW-Whitewater is a public institution, we must adhere to these rulings.

With that said, hate speech that constitutes a true threat, incitement to imminent lawless action, discriminatory harassment, or defamation can be punished by UW-Whitewater. These actions aren’t protected by the Constitution and violate the university’s Discrimination, Harassment, and Retaliation Policy. 

Like other college campuses, UW-Whitewater views public posting as an opportunity for campus community members to express themselves. However, all public postings are subject to the guidelines found in the Public Posting Policy. If content (i.e. illegal activities) or an unsponsored group posts, the university reserves the right to discard the posted material.

Speakers invited to campus by a student organization receive the same First Amendment protections as all other members of the campus community. Therefore, UW-Whitewater may not cancel an event or restrict a speaker from coming to campus because some members disagree with the speaker’s opinions and/or find the individual offensive. 

NOTE: Regardless of speaker content, the Student Organization must follow related university policies and procedures while organizing the event to ensure a safe, and uninterrupted campus environment.

The First Amendment protects the rights of citizens to peacefully assemble in protest of speech that they find offensive. Oftentimes, the best way to respond to offensive speech is counter-speech.

However, as outlined in the Board of Regents policy and UW-Whitewater’s Protest Guidelines, demonstrations and/or protests cannot disrupt, interfere with, or shut down a speaker’s presentation.