Freedom of Expression Training

Topics CoveredI. Freedom of Expression RightsII. Board of Regents’ Policy on

Freedom of ExpressionIII. USG Institution PoliciesIV. Additional Guidance

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Freedom of Expression Rights

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The Constitution of theUnited States of America

Amendment I. 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.

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The Constitution of the State of Georgia

Article I, Section I, Paragraph III, Freedom of conscience. Each person has the natural and inalienable right to worship God, each according to the dictates of that person’s own conscience; and no human authority should, in any case, control or interfere with such right of conscience.

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The Constitution of the State of Georgia

Article I, Section I, Paragraph IV, Religious opinions; freedom of religion. No inhabitant of this state shall be molested in person or property or be prohibited from holding any public office or trust on account of religious opinions; but the right of freedom of religion shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace and safety of the state.

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The Constitution of the State of Georgia

Article I, Section I, Paragraph V, Freedom of speech and of the press guaranteed. No law shall be passed to curtail or restrain the freedom of speech or of the press. Every person may speak, write, and publish sentiments on all subjects but shall be responsible for the abuse of that liberty.

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The Constitution of the State of Georgia

Article I, Section I, Paragraph IX, Right to assemble and petition. The people have the right to assemble peaceably for their common good and to apply by petition or remonstrance to those vested with the powers of government for redress of grievances.

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Freedom of Expression Analysis

• Three-part test to evaluate a First Amendment claim:1) Whether the speech is protected;2) The nature of the forum where the

speech is to occur;3) Whether the government justification

satisfies the standard applicable for the type of forum at issue.

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Freedom of Expression Analysis

• Categories of Unprotected Speech:₋ Obscenity₋ Child Pornography₋ Perjury₋ Blackmail₋ Defamation (Libel and Slander)

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Freedom of Expression Analysis

• Categories of Unprotected Speech:₋ True Threats₋ Fighting Words₋ Incitement to Imminent Lawless Action₋ Solicitations to Commit Crimes

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Freedom of Expression Analysis

• Offensive speech is protected by the First Amendment.

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“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself

offensive or disagreeable.” United States Supreme Court in Texas v. Johnson (1989)

Freedom of Expression Analysis

• There is no “hate speech” exception to the First Amendment.

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“Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability or any other similar ground is hateful; but the

proudest boast of our free speech jurisprudence is that we protect the freedom

to express ‘the thought that we hate.’” United States Supreme Court

Justice Samuel Alito in Matal v. Tam (2017)

Freedom of Expression Analysis

• There is no “hate speech” exception to the First Amendment.

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“A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment

of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our

reliance must be on the substantial safeguards of free and open discussion in a democratic society.’”

United States Supreme CourtJustice Anthony Kennedy in Matal v. Tam (2017)

Freedom of Expression Analysis• Types of forums:

– Traditional Public Forum – A place which has been held in trust for the use of the public and has been used for purposes of assembly and communicating thoughts between citizens (e.g. Piedmont Park)

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Freedom of Expression Analysis• Types of forums:

– Designated Public Forum – Government property that has been intentionally opened up by the government for use as a public forum, whether by policy or by action (e.g. Designated Public Forum Area on campus)

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Freedom of Expression Analysis• Types of forums:

– Nonpublic Forum – A forum that has not traditionally been open to the public where opening it to expressive conduct would somehow interfere with the objective use and purpose to which the property has been dedicated (e.g. Classroom during class hours)

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Freedom of Expression Analysis• Types of forums:

– Limited Public Forum – Forum that is established when the government limits its property to use by certain groups or dedicates it solely to the discussion of certain subjects (e.g. Campus bulletin board)

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Key First Amendment Terms• Content-Based Regulation – A regulation

of expression that is based on the substance of the message being communicated, rather than just the manner or method in which the message is being expressed.

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Prohibited

Key First Amendment Terms• Content-Neutral Restriction (aka Time,

Place, and Manner Restrictions) – A restriction on the time, place, or manner in which an expression can be communicated or conveyed. These restrictions apply equally to all communications, regardless of the message or view being expressed.

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Permitted

Key First Amendment Terms• Unbridled Discretion – Provisions that leave

acceptance or rejection to the whim of the administrator are invalid as they provide unbridled discretion.

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Prohibited

Key First Amendment Terms• Commercial Speech – Speech or

communication expressed with the primary purpose of selling a product or service or made as part of the sale of a product or service.– While commercial speech is protected by the

First Amendment, it is not protected to the same degree as speech that is intended to convey a political message or espouse a certain viewpoint.

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Board of Regents’Policy on

Freedom of Expression

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Board of Regents’ Policy 6.5 Freedom of Expression

The rights guaranteed by the First Amendment, including the right to free speech, free expression, free exercise of religion, and the right to assemble peaceably are of the utmost importance, and the University System of Georgia (USG) is committed to protecting those rights.

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Board of Regents’ Policy 6.5Freedom of Expression

As public institutions of higher education, USG institutions must promote open ideas and academic freedom on their campuses. While institutions may need to enact policies to promote campus safety, to ensure the proper functioning of the academic environment and institution activities, or to further other important institution objectives, those policies should not unduly burden the free expression rights of students, faculty, and staff. Any parameters placed on the time, place, and manner of expression must not be based on the content of the expression.

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Board of Regents’ Policy 6.5 Freedom of Expression

To facilitate the free exchange of ideas, institutions may designate accessible, high-traffic locations on campus as public forum areas. The designation of public forum areas may not be used to prohibit individual students, faculty, or staff from engaging in communications elsewhere on campus.

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Board of Regents’ Policy 6.5 Freedom of Expression

Reservation and use of designated public forum areas may only be required in the following limited circumstances: (1) speakers who are not enrolled at or employed by the institution; and (2) students, faculty, or staff who engage in large group demonstrations. Institutions may not consider the content or viewpoint of expression when requiring or assigning use of public forum areas.

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Institution Policies

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Institution Freedom of Expression Policy

• Each institution has its own Freedom of Expression Policy, which must comply with the Board of Regents’ Freedom of Expression Policy.

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Institution Freedom of Expression Policy

• Items to note in your institution’s Freedom of Expression Policy:– Location of Public Forum Area– When use of Public Forum Area can be

required (e.g., outside speakers; large groups of students, faculty, or staff)

– General provisions governing expression on campus (i.e., distribution of written materials, amplified sound, interference with vehicular or pedestrian traffic)

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Additional Institution Policies• Familiarize yourself with other policies

that may be implicated by large group expression or a demonstration:– Facilities Use Policies– Events Policies– Registered Student Organization Manual– Security Costs Policy

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Additional Institution Policies• Familiarize yourself with other policies

that may be implicated by large group expression or a demonstration:– Amplified Sound Policies– Chalking Policies– Posting Policies– Open Flames Policies

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Additional Institution Policies• Familiarize yourself with other policies

that may be implicated by large group expression or a demonstration:– Student Code of Conduct– Student-Athlete Code of Conduct– Employee Handbook– Social Media Policies– Trademark Policies

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Additional Guidance

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Additional Guidance

• Be consistent in applying policies and making determinations on expressive activities

• Ensure that campus policies have limitations in place so that unbridled discretion is not permissible

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Additional Guidance

• Meet with campus administrators and employees in your department to discuss steps that are to be taken in the event of an expressive event, a large group demonstration, or a disruption on campus– Identify relevant policies– Conduct table-top exercises– Contact and engage outside law

enforcement as necessary36

Additional Guidance• Prepare and implement a Crisis

Communication Plan– Consider audience and message for

communications sent during crisis situations– Develop phone tree for large-scale events

or disruptive events– Those with ability to post information on

official college or university websites or social media pages should be included in and educated on the Crisis Communication Plan

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Additional Guidance

• Communicate immediately and often, both with other campus administrators and University System Office staff

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Questions?

• If you have any questions about Board of Regents’ policies or any institution policy related to free expression and the First Amendment, please do not hesitate to contact the University System Office of Legal Affairs:– Edward Tate, edward.tate@usg.edu– Brooke Bowen, brooke.bowen@usg.edu– Telephone: 404.962.3255

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