The Constitutional and Legislative Foundations for Freedom and Diversity of Expression

Freedom of speech and expression are foundational to the College’s mission. We want all members of our community to feel empowered to speak up, to ask challenging questions, to present new and controversial ideas. It is only through the presentation and scrutiny of different perspectives that together we develop the ability to confront and solve complex problems and exercise forms of collaborative leadership in diverse social and professional settings.

If we are to believe in free speech or expression, we must believe in it for all people, regardless of their views. Guaranteeing free expression to people who agree with us is easy; doing so for people whose ideas we find offensive or misguided is much harder—and the truer test of our commitment.

Although freedom of speech and expression appears to be a straightforward concept, the application of it in law and doctrine can be more complicated. As new situations arise, the laws applying or restricting free speech also change over time. 

The material on these pages provides only an overview. We hope these explanations are informative (on what is protected speech and what is not), and that they help us all to understand the value, meaning, and intersecting legal limitations on free speech. As Benjamin Franklin said, “Without freedom of thought, there can be no such thing as wisdom; and no such thing as public liberty, without freedom of speech.”

What are the basic principles of free speech?

The First Amendment to the United States Constitution states that “Congress shall make no law… abridging the freedom of speech…” The word “speech” has been interpreted to cover the written and spoken word as well as symbolic or expressive conduct (that which communicates an idea, such as art, gestures, or clothing).

The First Amendment covers the actions of federal, state, and local governments. The concept is informed by the idea that people should not be silenced by their government and that they should be free to speak critically about the government without fear of censorship or retaliation.

By its own terms, the First Amendment is intended to regulate government action and does not apply directly to a private institution, including private colleges like CMC. However, California law provides that private, postsecondary educational institutions such as CMC internalize the principles of the First Amendment in the student discipline context. In particular, colleges “shall not make or enforce a rule subjecting a student to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when engaged in outside the campus or facility of a private postsecondary institution, is protected from governmental restriction by the First Amendment to the United States Constitution or Section 2 of Article 1 of the California Constitution.”^[1] This is often referred to as the “Leonard Law,” referring to Senator Bill Leonard who drafted the legislation.

Beyond the Leonard Law, Section 2 of Article 1 of the California Constitution states “Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right.” 

It is important to note that neither the First Amendment nor The Leonard Law is understood in absolute terms. Important exceptions to the First Amendment have been recognized by the courts, and we encourage you to familiarize yourself with these exceptions. Moreover, the First Amendment may not protect acts of civil disobedience, depending on what they entail. To the extent civil disobedience involves violations of laws or regulations, it may result in civil, criminal, or administrative responses that protect the freedom of others and other values.

[1] California Education Code Section 94367(a)

What are the exceptions to free speech?

The First Amendment does not provide protection for someone to say, write, or express anything at any time or at any location. Over time, courts have recognized that the First Amendment permits two kinds of limitations on speech.  

First, courts have recognized that some narrowly defined categories of speech have such limited social value that they can be prohibited. Prohibitions on speech based on its actual words or expressive conduct are referred to as content-based restrictions. 

Second, courts have permitted both limitations on the time, place and manner of speech or expressive conduct, and restrictions that are aimed at conduct other than speech, but might have an incidental effect on speech.

What are permissible content-based restrictions?

• Inciting Imminent Lawless Action: Speech which is directed to inciting or producing imminent, lawless action that is likely to incite or produce lawless action is not protected. Inflammatory speech, or even speech that may advocate violence, is protected unless the speech is likely to immediately incite or produce lawless action against a specific person or group.^[1]
• Fighting Words: Words, which by their very utterance, inflict injury or tend to incite an immediate breach of the peace (for example, by retaliating against the speaker). Words that simply anger or invite dispute are not “fighting words.” It is not easy to always identify which words are “fighting words” – personally abusive epithets which are inherently likely to provoke a violent reaction – and those which are mere insults.^[2]
• True Threats: When the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a person or group, even if the speaker does not intend to carry out the threat. This is a type of intimidation where the speaker intends to place a person or group in fear of bodily harm or death, but does not include words that are mere political hyperbole.^[3]
• Defamation: Libel (written) and slander (oral) is an intentional, false communication about a person to someone other than that person that injures the person’s reputation. Public figures/officials must also show that the defamatory statement was made with actual malice.^[4]
• Obscenity: Speech or conduct that appeals to the “prurient” (shameful/morbid) interest in sex (based on contemporary community standards); portrays, in a patently offensive way, sexual conduct specifically defined by state law; and lacks literary, artistic, political or scientific value (based on a reasonable person standard looking at the work as a whole).^[5] This is a difficult standard to apply, reflected in the famous statement by U.S. Supreme Court Justice Stewart, “I know it when I see it.”
• Harassment: Words or conduct that are sufficiently severe, pervasive, or persistent so as to interfere with or limit the ability of a person to participate in or benefit from the services, activities, or privileges provided by an institution. The speech or conduct must be subjectively and objectively harassing (meaning that a reasonable person with the same protected characteristics would find the environment hostile or abusive and that the victim experienced the words or conduct in this way).
• Miscellaneous: There are some additional content-based restrictions on speech such as limitations on commercial speech, speech or conduct harmful to minors, false advertising, plagiarism, using public resources for partisan politics, and speech that is integral to the commission of a crime (i.e. perjury, blackmail, extortion).

Does the First Amendment prohibit hate speech?

No. The First Amendment does not have an exception for “hate speech,” as the First Amendment is not designed to prohibit offensive, rude, or even vile speech. In fact, the First Amendment is designed to protect unpopular speech and viewpoints. Some offensive speech or expressive conduct may rise to the level harassment or true threats, in which case there is no First Amendment protection. But there is no catch-all exception for “hate speech.”

Some states, like California, have criminal provisions (e.g., Penal Code 302, 422.55, 422.6, 422.7, 422.75) which cover crimes committed due to the victim’s perceived protected status, as does the federal government (e.g., the Civil Rights Acts of 1964 and 1968, the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, the Conspiracy Against Rights Act). However, the terms “hate crime” and “hate violence” do not mean the same thing as “hate speech.” 

California’s Leonard Law also contains some content-based exceptions. For example, it does not prohibit the imposition of discipline for harassment, threats, or intimidation, unless constitutionally protected (Section 94367(e)). That law also makes clear that it does not appear to prevent institutions from adopting rules and regulations designed to prevent hate violence from being directed at students in a manner that denies them full participation in the educational process (Section 94367(f)). 

[1] Brandenburg v. Ohio (1969) 395 U.S. 444

[2] Chaplinski v. New Hampshire (1942) 315 U.S. 568

[3] Virginia v. Black (2003) 538 U.S. 343

[4] New York Times v. Sullivan (1964) 376 U.S. 254

[5] Miller v. California (1973) 413 U.S. 15

What are permissible, non-content restrictions to free speech?

It is important to note that college campuses are allowed to impose reasonable time, place, and manner restrictions on otherwise protected speech or incidental restrictions that are aimed at conduct other than speech. This is because we need to be able to ensure the safety, security and order of its educational and residential environments; prevent unlawful conduct or conduct in violation of its own policies; and preserve the integrity of its facilities. However, these restrictions must be “content neutral,” meaning that they apply regardless of the words or conduct at issue. They must also leave open “ample alternative channels of communication.” ^[1]

For example, in order to maintain a safe and orderly educational and residential environment, CMC reserves the right at any time to:

• set limits on the time for activities (e.g., no amplified sound during certain times);
• designate the place of certain activities (e.g., a “free speech” or “demonstration” zone during a scheduled activity so that any protests can occur alongside the scheduled activity without interfering with it);
• proscribe the manner of certain activities (e.g., rules on how and where to post advertisements, obtaining a permit or sponsor for a speaker on campus);
• limit speech or expressive conduct that materially and substantially interferes with the operation of the College or its pedagogical goals;
• set standards for appropriate behavior and speech in an instructional, internship or practicum setting; or
• any other time, place, or manner restrictions that preserve the freedom of expression in light of safety to the entire community.

More information about CMC’s policies on speech or expressive contact is available online.

[1] Frisby v. Schultz (1988) 487 U.S. 474, 481