Freedom of Speech at Fayetteville State University

Freedom of speech is the right of a person to articulate opinions and ideas, whether verbally or otherwise, without interference or retaliation from the government. The term “speech” constitutes expression that includes far more than just words and speech, but also what a person wears, reads, performs, displays, etc.

The First Amendment to the U.S. Constitution, as well as many state and federal laws, extend protections for speech activities that are among the strongest of any democracy, primarily because the law not only guarantees citizens’ rights to engage in free speech but also limits the government’s authority, including the authority of public institutions like Fayetteville State University, to restrict protected speech activities.

The First Amendment protects a broad range of speech, including speech that may be considered deeply offensive or hateful. (See Hate Speech FAQ below.)

Students, faculty, staff, invited guests, and visitors from the general public all have free speech rights on campus. Members of the university community have greater access to certain campus programs and activities and facilities to engage in protected speech activities than campus visitors.

Supreme Court law holds that public institutions like Fayetteville State University have discretion in regulating the “time, place, and manner” of speech on campus. The right to speak on campus is not a right to speak any time, at any place, and in any manner. In the interest of sustaining its mission and functions, as well as protecting public safety, the university can regulate the “where, when, and how” of speech activity on campus.

Examples of acceptable time, place, and manner restrictions include notice periods, limiting the duration and frequency of the speech, and restricting speech during final exam periods.

1. The term “hate speech” does not have a legal definition in the United States, but it often refers to speech that insults or demeans a person or group of people on the basis of characteristics such as race, religion, ethnic origin, gender, sexual orientation, gender identity, or disability. While the university might not endorse or agree with speech of this kind, “hate speech” is protected by the First Amendment, and Fayetteville State University, as a public university, cannot lawfully restrict such speech unless it:
   1. falls into one of the unprotected speech categories described in the FAQ on unprotected speech below;
   2. constitutes a material and substantial disruption or interference with university operations or other protected speech activities; or
   3. violates the university’s reasonable time, place, and manner restrictions (see FAQ above).

2. As a campus, Fayetteville State University strives to be a community of inclusion and will often respond to reports of hateful speech with dialogue, education, and a show of support for individuals or groups targeted by hateful speech. While it is not the role of the institution to shield individuals from speech protected by the First Amendment, the university is committed to recognizing opportunities to provide education and to foster civil discourse among those with competing or conflicting points of view. The university encourages faculty, staff, and students to engage their free speech rights, consistent with federal and state laws, to condemn hateful speech and to help create opportunities for the campus community to understand and learn from these actions. Students who encounter hurtful or offensive speech are encouraged to reach out to the Dean of Students Office or to make a report to the university’s Ombuds or Student DEI Office.

The U.S. Constitution guarantees freedom of speech by default, placing the burden on the government (in this case, Fayetteville State University) to demonstrate whether there are any circumstances that justify its limitation.The First Amendment does not protect certain speech, such as:

1. True threats: Speech that a person reasonably would perceive as an immediate threat to his or her physical safety
2. Incitement of violence or lawless action: Speech that creates a substantial likelihood of imminent illegal activity and must be directed to causing imminent illegal activity
3. Fighting words: Abusive words or phrases that: (1) inflict injury or are likely to provoke a violent reaction when directed at an ordinary person in a face-to-face confrontation, and (2) play no role in the expression of ideas.
4. Defamation: An intentional and false statement about an individual that is publicly communicated in written or spoken form and causes injury to the individual.
5. Unlawful harassment and discrimination: Engaging in unwelcome conduct directed toward a particular person or identifiable group of persons based upon the target person’s actual or perceived race, color, religion, age, national origin, ethnicity, disability, or veteran status through any action, method, device, or means which is so severe, pervasive, and objectively offensive, that it unreasonably interferes with the target person’s university employment, academic performance, or participation in university programs or activities(i.e., creates a hostile environment).
6. Invasion of privacy: Unjustifiable invasion of privacy or confidentiality not involving a matter of public concern

Similarly, and in accordance with UNC System Policy 1300.8, otherwise protected speech that violates the university’s reasonable time, place, and manner policies or that otherwise materially and substantially disrupts or interferes with university operations or with the free expression rights of others is not permitted by the university and may result in the imposition of discipline, as appropriate.

Refer to the following FSU policies for information on prohibited harassment:

Non-Discrimination Policy Statement

Unlawful Discrimination, Harassment, and Retaliation

1. UNC System Policy and NC General Statute Chapter 126, Article 5 prohibit “compelled speech” by employees or applicants for admission or employment.
2. Specifically, Section II.A.5 of the UNC System Policy, entitled “Prohibition on Compelling Speech,” provides in relevant part that:
   1. “…the University shall neither solicit nor require an employee or applicant for academic admission or employment to affirmatively ascribe to or opine about beliefs, affiliations, ideals, or principles regarding matters of contemporary political debate or social action as a condition to admission, employment, or professional advancement. Nor shall any employee or applicant be solicited or required to describe his or her actions in support of, or in opposition to, such beliefs, affiliations, ideals, or principles. Practices prohibited here include but are not limited to solicitations or requirements for statements of commitment to particular views on matters of contemporary political debate or social action contained on applications or qualifications for admission or employment or included as criteria for analysis of an employee’s career progression.” (emphasis added)
3. NCGS Chapter 126, Article 5, Section 14.5 provides, in relevant part that:
4. “Each State agency, department, and institution shall comply with the following:
   1. Refrain from soliciting or requiring an applicant for employment to endorse or opine about beliefs, affiliations, ideals, or principles regarding matters of contemporary political debate or social action as a condition of employment.
   2. Refrain from soliciting or requiring an applicant for employment to describe the applicant’s actions in support of, or in opposition to, the beliefs, affiliations, ideals, or principles identified in subdivision (1) of this subsection.”

The First Amendment does protect nonverbal expression but does NOT protect the use of such forms of expression to directly threaten an individual. It also does not protect vandalism or the destruction or defacing of property. Like other forms of speech on campus, posting and displaying flags, banners, and similar articles must adhere to the University’s reasonable time, place, and manner restrictions (see FAQ above).

Refer to the FSU “Use of University Space” policy for information regarding scheduling events on campus.

The Vice Chancellor for Legal, Audit, Risk and Compliance & General Counsel and the Director of Student Conduct are the University’s designated “Responsible Officers,” charged with ensuring compliance with the University’s free speech and expression policies and for answering any related questions or concerns, in accordance with UNC System Policy 1300.8. Should you or your organization have any such questions or concerns, please contact the designated Responsible Officers.

In general, Fayetteville State University cannot prevent speech because it is likely to provoke a hostile response. Stopping speech before it occurs due to the anticipated reaction to the speech is often referred to by courts as the equivalent of a “heckler’s veto” and is a form of “prior restraint.” Prior restraints on speech activities are highly suspect and rarely deemed lawful by reviewing courts.

That said, the university’s primary concern is the safety of its students, faculty, and staff. Fayetteville State University Police and Public Safety makes security assessments with input from federal, state, and local law enforcement agencies whenever speech activities may pose a threat to public safety. The University is required to do what it can to protect speakers and to prevent disruption or violence. If, however, there remains a serious threat to public safety and no reasonable alternative, an event may be canceled.

As a public institution, Fayetteville State University must support both peaceful protest and the rights of individuals or groups to say or do things that some might find objectionable, or even hurtful. The university cannot make decisions or take actions based on the viewpoint or content of the speech. The university’s commitment to supporting free speech activities, however, does not constitute an endorsement of any specific speech at issue.

Yes, the right to protest is protected by the First Amendment. However, you may not infringe on the First Amendment rights of others and, therefore, may not effect a material and substantial disruption or substantial interference with another’s protected speech activity. (See “What is a ‘Heckler’s Veto ‘” FAQ below.) Fayetteville State University expects individuals who protest to do so in a peaceful and safe manner and recommends that individuals:

1. Avoid activity that infringes on the rights or safety of others, such as blocking and preventing the movement or access of others.
2. Follow the lawful instructions of a police officer or university official, such as staying behind barricades, dispersing from an area declared an unlawful assembly, and not resisting arrest. It is against the law to disobey a lawful order by a police officer.
3. Leave the 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. Staying overnight in a campus building (other than your residence hall) after hours is prohibited.
4. Refrain from speech that incites others to commit acts of violence such as pushing, kicking or spitting on others, destruction of property or other unlawful actions. (Be mindful of what speech is not protected. (See “What Kind of Speech is Not Protected” FAQ above.)
5. Make informed decisions. If you choose to engage in civil disobedience and get arrested, you should know the potential consequences.

A “heckler’s veto” is the silencing or disruption of another’s speech by one’s own speech or conduct, which can include shouting down another’s speech or blocking the speaker’s display from view. In general, freedom of speech does not give someone the right to prevent others from exercising their free speech rights. Free speech would be meaningless if no one could speak because others are allowed to shut down their speech. Those who engage in such behavior may face disciplinary action or, in some instances, criminal charges. Although a good way to protest another’s speech is with more speech, that protest speech should not silence or disrupt the original speaker’s speech.

Sustaining and promoting academic freedom are vital to the mission of the university. Both UNC System and Fayetteville State University policies govern academic freedom at Fayetteville State University:

Section 600 of The Code of the University of North Carolina provides:

1. The University of North Carolina is dedicated to the transmission and advancement of knowledge and understanding. Academic freedom is essential to the achievement of these purposes. The University therefore supports and encourages freedom of inquiry for faculty members and students, to the end that they may responsibly pursue these goals through teaching, learning, research, discussion, and publication, free from internal or external restraints that would unreasonably restrict their academic endeavors.
2. The University and each constituent institution shall protect faculty and students in their responsible exercise of the freedom to teach, to learn, and otherwise to seek and speak the truth.
3. Faculty and students of the University of North Carolina shall share in the responsibility for maintaining an environment in which academic freedom flourishes and in which the rights of each member of the academic community are respected.

Section 601 of The Code of the University of North Carolina provides:

SECTION 600. FREEDOM AND RESPONSIBILITY IN THE UNIVERSITY COMMUNITY

1. It is the policy of the University of North Carolina to support and encourage full freedom, within the law, of inquiry, discourse, teaching, research, and publication for all members of the academic staffs of the constituent institutions. Members of the faculty are expected to recognize that accuracy, forthrightness, and dignity befit their association with the University and their position as men and women of learning. They should not represent themselves, without authorization, as spokespersons for the University of North Carolina or any of its constituent institutions.
2. The University and its constituent institutions shall not penalize or discipline members of its faculties because of the exercise of academic freedom in the lawful pursuit of their respective areas of scholarly and professional interest and responsibility.

Section 608 of The Code of the University of North Carolina provides:

SECTION 608. STUDENTS’ RIGHTS AND RESPONSIBILITIES

1. The University of North Carolina affirms that the first goal of each constituent institution is to educate the students admitted to its programs. The freedom of students to learn is an integral and necessary part of the academic freedom to which the University and its constituent institutions are dedicated. Each constituent institution shall provide, within allotted functions and available resources, opportunity for its students to derive educational benefits through developing their intellectual capabilities, encouraging their increased wisdom and understanding, and enhancing their knowledge and experience applicable to the effective discharge of civic, professional, and social responsibilities. No constituent institution shall abridge either the freedom of students engaged in the responsible pursuit of knowledge or their right to fair and impartial evaluation of their academic performance.
2. All students shall be responsible for conducting themselves in a manner that helps to enhance an environment of learning in which the rights, dignity, worth, and freedom of each member of the academic community are respected.
3. In applying regulations in the area of student discipline, each constituent institution shall adhere to the requirements of due process as set forth in Section 502 D of this Code.