Whose right is it, anyway?

It’s my (First Amendment) Right!

Bill of Rights

The First Amendment is one of ten Amendments within the Bill of Rights, which Congress adopted, and the States ratified, in 1791. The purpose of the Bill of Rights was to protect individuals against government  power. Initially, the Bill of Rights was understood to apply only against the federal government (e.g., laws passed by Congress). But after the Fourteenth Amendment was adopted in 1868, the Supreme Court held that most of the Bill of Rights’ provisions apply also to the states and local governments. [Back to Top]

Why protect speech?

It’s Essential to a Healthy Democracy

We protect speech because words and expressive conduct can do glorious things. They can inform us of startling facts and new discoveries. They can teach us novel theories and buried histories. They can persuade us to shift our views and understandings. They can move us with rhyme and meter and gorgeous metaphor. More fundamentally, we value free speech because it is essential to a healthy democracy.  At its most basic level, freedom of speech permits us to dissent from government conduct—whether by poster, tweet, or raised fist, and whether it’s disagreement with domestic affairs, foreign policy, or public monuments. Without this protection, the government could punish speech it disliked. Say a prayer, go to jail. Speak your mind, pay a fine. Would you want to live in such a society? Would you want a UCLA Administrator, California Governor, or United States President to wield such power?

And to the University and Its Mission

Freedom of speech carries special import on university campuses such as ours.  As a public institution in Southern California, we proudly celebrate the robust diversity of perspectives, beliefs, and values that exists among us. But such heterogeneity means there will be conflict and passionate disagreement. Of course, UCLA should do everything possible to ensure that those disagreements are debated on-the-merits, with clarifications, concessions, persuasion, and respect. But the bottom line is that we want that diversity of viewpoints to be aired, debated, and considered, not trapped inside single-minded echo chambers. In addition, UCLA vociferously defends its commitment to “academic freedom,” which among various meanings includes the freedom to inquire. There’s no constitutional provision that explicitly addresses academic freedom, but the Supreme Court has described it as a “special concern of the First Amendment.” The freedom to communicate (speech) and the (academic) freedom to inquire are both essential to the university’s fundamental mission, “which is to discover knowledge and to disseminate it to its students and to society at large.”

But there are Costs

We say more about this below, but we are compelled here to state clearly that free speech comes with great costs.  Words and expressive conduct can wound in severe and concrete ways.  For a university, any discussion about freedom of speech is incomplete without recognizing that speech can derail other fundamental commitments—for instance, to ensure that all students, regardless of identity, can live, learn, and study in an equal learning environment. [Back to Top]

How does the First Amendment work?

What’s In: Expressive Conduct

The First Amendment’s “freedom of speech” not only protects oral speech but also “expressive conduct,” which includes any conduct intended to communicate an idea or message that can be reasonably understood.  Consequently, “freedom of speech” could cover texting with emojis, wearing a black armband, flashing a gang sign, burning a cross, wearing a particular type of hat, or kneeling during the national anthem.

What’s Out: Categorical Exceptions

The Supreme Court has carved out various categories of speech as “unprotected speech” or “less protected speech.” Here’s the main list:

• incitement of imminent lawless action;
• fighting words (addressed at a specific individual to trigger an immediate fist-fight);
• true threats;
• defamation (false statements of fact published with a particularly reckless state of mind that harms reputation);
• obscenity (which is not quite the same as pornography);
• harassment;
• and child pornography (which involves actual minors).

If your speech falls into one of these categories—which are all legal terms of art—state actors need little justification to constrain or punish that speech.

Content-based Restrictions: Presumptively Bad

Content-based restrictions are generally unconstitutional. Thus, if a university wants to ban speech because of the content of the message (e.g., speech about abortion, or affirmative action, or Middle East politics), it is really, really hard to do consistent with the First Amendment.

Content-Neutral Restrictions: Presumptively Good

Suppose Residential Life doesn’t want music blaring in the dorms after midnight? They don’t care whether you’re playing Bieber or Drake, Mozart or Chopin, a podcast or a movie. If you’re forced to turn off your speakers because people need their sleep, is that unconstitutional? It is your speech after all. It turns out that the First Amendment is (appropriately) more flexible and tolerant of “content-neutral” speech restrictions – that is, restrictions unrelated to the content of someone’s speech. Another label for them is “time, place, and manner” restrictions because they concern precisely that: the time (after midnight), place (in the dorms), and manner (via loudspeakers) in which an individual may speak. In this example, UCLA just wants students to be able to sleep through the night. For content-neutral restrictions, the government need only show that it is pursuing some “significant” interest that does not burden substantially more speech than necessary, a relatively lower burden. But here’s the worry. Sometimes governments employ what they claim are mere “time, place, and manner” regulations to suppress a message they dislike. For example, if these regulations are extraordinarily vague or they are unevenly applied—say, employed to censor some speakers but not others—people could reasonably question whether the constraints (or their application) are content-neutral after all. [Back to Top]

What are the costs?

Words Matter

While speech protections produce real benefits, we should be honest that these protections entail real costs and consequences. Words and expression can do awful things. They can insult and mock. They can grievously wound. They can gossip and betray. They can lie. They can intimidate and threaten. They can fake the news and be weaponized to deceive, manipulate, and sow discord. They can become memes that lead kids to bully, tribes to kill, nations to war. As children, we were taught to sing “sticks and stones may break my bones, but words will never hurt me.” If only that were entirely true.  Words can devastate—offline and on, even when the speaker doesn’t intend to do so. This reality explains why free speech doctrine has categorical exceptions, such as child pornography and true threats.

But, “Hate Speech” is Protected Speech

Lots of people say “Hate Speech is NOT Free Speech.” But this inaccurately describes the law: there is no categorical exception for “hate speech.” Notwithstanding the harm it causes, “hate speech” is protected speech.  We understand and appreciate the instinct to bar “hate speech,” particularly on a college campus, and particularly given our country’s legacy of genocide, slavery, exclusion, internment, and Jim Crow, and the ongoing ways in which speech is deployed to marginalize groups (for instance, the transgender community) and challenge even their most basic rights to exist, free from violence. But as a descriptive statement of law, the assertion “hate speech is not free speech” is just plain wrong. The Supreme Court has repeatedly struck down laws—including university “speech codes”—that penalize or otherwise regulate “hate speech.”

“Is” versus “Should”

Whether hateful speech should be protected is a different question on which reasonable minds can and do disagree. In fact, some democracies like France and Germany criminalize certain forms of hateful speech. Our view is that that although any existing law—including First Amendment law—is contingent, contestable, and hardly inevitable, it is always essential to know what that existing law is. Thus, when we enter debates about freedom of speech, including hate speech, let’s take care to distinguish between “what is” the law and what we think the law “should be,” and not confuse the two.  Recognizing this distinction is not meant to foreclose earnest debate about constitutional doctrine, civil disobedience, institutional design, or radical change. It is simply to engage that debate with clarity.

What’s up for Debate

As you might have guessed, legal debates about free speech often target whether someone’s speech falls into one of the above identified categorical exceptions. After all, what counts as a “true threat”? What’s “obscenity”? And most important, what counts as “harassment?” Those who seek to create a whole new exception or increase the scope of recognized exceptions face an uphill battle. For good or bad, the Supreme Court has interpreted what counts as “unprotected speech” and “less protected speech” narrowly and is likely to continue doing so in the foreseeable future. [Back to Top]

Free Speech at UCLA

The Basics

Regulate Unprotected Speech

Remember that certain forms of speech, such as true threats and defamation, are unprotected under the First Amendment.  There’s a reason why these forms of speech are unprotected (or less protected). As a general rule, it’s understood that they cause concrete harm and provide little if any social value. UCLA is largely free to regulate those forms of speech and it should attempt to do so.

Vigorously Enforce Anti-Discrimination Laws and Norms

Multiple state and federal laws, as well as University rules and regulations, prohibit discrimination on the basis of race, gender (including sexual harassment), and other protected categories.  Generally, these laws and regulations, which may seem to restrict speech and expressive conduct, do not violate the First Amendment.  While there is some uncertainty in the law with respect to what counts as harassment, the UCLA Student Conduct Code (Section 102.11) defines harassment as “conduct that is so severe and/or pervasive, and objectively offensive, and that so substantially impairs a person’s access to University programs or activities that the person is effectively denied equal access to the University’s resources and opportunities.” [Back to Top]

Show Neutrality

Employ Content-Neutral Restrictions

Sometimes, UCLA might want to limit speech for reasons wholly unrelated to content. Recall the above time, place, and manner example involving Residential Life prohibiting students from blaring music in the dorms after midnight. The prohibition would be presumptively constitutional. Why? Remember: Residential Life doesn’t care what kind of music you’re playing. The office just wants your speakers off so others can sleep. As you might already know, UCLA employs various content-neutral time, place, and manner regulations that govern speech on University property.  These regulations cover, among other things, the posting of “literature, signs or personal announcements” on University property; and the use of amplified sounds; and “[s]igns, banners, and displays” on Bruin Walk.  UCLA does not, however, employ “Free Speech Zones” that require students to use designated parts of campus, at designated times, to engage in free speech activities.

Protest: Yes | Complete Disruption: No

As administrators, our job is to allow speech and counter-speech.  When a registered campus organization invites an unpopular speaker onto campus, our task is to ensure that the speaker can speak and the protesters can protest. Both constitute expressive conduct protected by the First Amendment. Neither may be suppressed simply because UCLA disagrees with the message. The hardest challenge arises when protest (or counter-protest) morphs into complete disruption of the event.

Protests are an inevitable and constitutionally protected part of campus life. So how does UCLA respond in real time while balancing the twin goals of freedom-of-speech and freedom-to-protest? Often, UCLA will employ the following practice (as communicated to event participants): (1) UCLA respects freedom-of-speech, including the lawful freedom-to-protest. – (2) Protests may not be so disruptive as to silence the invited speaker from communicating with a willing audience. – (3) After a warning, protesters whose actions prevent the event from proceeding will be escorted out, be subject to arrest, and will be held accountable under relevant laws and university policy.

Discourage Heckler’s Veto

Suppose a controversial speaker encounters a “heckler” in the audience. The heckler stands up and starts screaming so loudly that no one else can hear the speaker (or anyone else). No actual violence is threatened, but the lecture cannot continue. On the one hand, one could describe this situation as speech on both sides: the invited speaker versus the protester. On the other hand, the heckler’s contribution effectively silences the invited speaker and prevents him or her from communicating with a willing audience. That amounts to a “Heckler’s Veto,” which the University frowns upon and First Amendment law does not protect. Why? Because it allows a single highly motivated individual to prevent a speaker from communicating with an entire audience. Even if you like this particular heckler, what will you do when a heckler comes after you? If UCLA allows hecklers to shut down talks, then we’re conceding power to anyone willing to show up and scream loudly enough. That sets a troubling precedent, especially for a University committed to academic freedom. And if we escort some hecklers out of the room but not others, on the basis of their viewpoint, we become complicit in conduct that potentially violates the First Amendment. [Back to Top]

Pick a Side

Proudly Proclaim our Values

Emphasizing the need to protect speech and counter-speech from violence and complete disruption presents the University as little more than crowd control. This might sound a bit unambitious. Can UCLA do anything more? Absolutely. Even though UCLA as “sovereign” cannot suppress speech simply because it disagrees with its message, UCLA as “speaker” may pick a side and share its beliefs. UCLA can, and should, exercise the full power of its bully pulpit to speak our values. When UCLA speaks, it need not be neutral. To the contrary, UCLA may loudly and proudly embrace equity, diversity, and inclusion while fervently rejecting inequity, homogeneity, and exclusion. This includes publicly denouncing hate speech, whether that speech is expressed by members of the UCLA community or by those invited into our fold. [Back to Top]

Reframe the Controversies

From Trigger Warnings to a “Heads-up” to Better Teaching

A trigger warning is essentially a “heads-up” that the discussion will address sensitive or disturbing subjects. Ironically, some people are triggered by the very concept of trigger warnings.  Just hearing about such warnings fill them with emotional outrage, which makes it hard for them to focus and continue listening. We understand some of the rage. If warnings were everywhere, we could find ourselves in a culture so sensitive to audience discomfort that nothing of substance is ever said. Of course that would be troubling. Great ideas, great art, and great teaching should often make us uncomfortable. But let’s try to avoid caricature in these conversations. First, UCLA neither mandates that faculty use trigger warnings nor prevents them from doing so. It’s faculty choice, which is consistent with academic freedom. Second, trigger warnings are rarely provided willy-nilly. Instead, they’re usually offered by faculty who recognize that they are about to discuss particularly sensitive subject matters (such as rape or sexual violence) that, of themselves, can re-traumatize a survivor. Third, we should own the fact that many trigger warnings don’t bother us at all. Take, for example, ratings for TV shows and movies that warn us of foul language, nudity, or violence. Many of the same folks who decry trigger warnings in the classroom lobbied hard for television and movies to “voluntarily” label their programming. But aren’t these all just different forms of trigger warnings? At UCLA, we think it useful to shift the frame from “trigger warnings” to a “heads-up for better teaching.” If faculty learn that certain topics—without warning—will discombobulate some students—for whatever reason, including something as mundane as level of difficulty—what does sound pedagogy call for? A heads-up. It’s a decent thing to do and, more important, improves learning. At bottom, that’s what a University should care most about.

From Micro-Aggressions to Micro-Connections

Above we pointed out the simple truism that “words matter.” It’s obvious that grotesque insults can rattle the listener. But, subtler words can also send signals of disrespect, exclusion, or contempt. For example, if a person of Asian descent is constantly asked “where are you from,” the implicit message conveyed is that Asians are forever foreigners (regardless of how many generations their family has lived in LA). The microaggressions literature gives voice to how subtler words can have a surprisingly large impact. The pushback to this discourse is that people are being too “sensitive.” That, of course, is possible. Just as the meaning of “expressive conduct” is not fully controlled by the subjective intent of the speaker, it should not be fully controlled by the subjective understanding of the listener. In truth, the social meaning of any speech act lies somewhere between speaker and listener. But once we recognize that intent is not everything (consider the claim that kneeling football players disrespect the flag, regardless of their intent), we have to admit that a speaker’s honest desire not to offend does not end the discussion. Here are the pivots: First, let’s reframe the microaggressions debate into the simple observation that words matter beyond the speaker’s intent and can take on a life of their own (particularly in our tweet-filled world) that the original speaker can rarely control. Second, let’s move beyond lamenting the problem of micro-aggressions and actively facilitate micro-connections, the building of community across differences, one relationship at a time. At a great public research university, our goal should be to uncover unexpected commonalities, interests, perspectives across diverse categories. It’s these micro-connections—comprising smiles, decency, respect, kindness, and empathy—that thicken the social mesh that keeps our community genuinely connected and resilient.

From “Safe Spaces” to “Safe Spaces + Brave Spaces”

On the one hand, a call for “safe spaces” should not be controversial. No one can effectively learn or work if they fear for their basic physical safety. On the other hand, some criticize “safe spaces” as a demand for “coddling” or bubble wrap that insulates us from anything we find sharp or prickly, psychologically, emotionally, or politically. This interpretation of, and hostility to, “safe spaces” shares notable features with the resistance to recognizing “micro-aggressions.” Again, let’s reframe. To begin, let’s admit our need to live in at least two spheres, a private sphere and a public sphere. After a long hard day at work (public sphere), we return to our homes and families (private sphere). At work, we need to engage, perform, and produce on public terms. At home, we can chill, relax, let our hair down, recharge, and just be ourselves. We all need private spaces; without them, we’d never be able to recompose to engage the public ones. When students, especially those from underrepresented groups, demand “safe spaces,” a natural response might be that they can find one at home. But here’s the tricky part: many students live, study, and work on campus. Physically, there’s no real separation between work life and home life; it’s all at UCLA. Also, with the rise of social media, it’s increasingly difficult to keep the spheres separate. And if “school” feels hostile and if “dorm” life feels threatening, where are students supposed to go to recharge? So, for those skeptical about “safe spaces,” we ask for a bit of empathy, and the recognition that private spheres of refuge are necessary yet not equally available to all. For those enamored with “safe spaces,” we ask for openness to the idea that safe spaces are most important because they co-exist with “brave spaces,” places (such as the classroom) where we intentionally put ourselves “out there,” to challenge our thoughts, ideas, and assumptions. To satisfy its mission, the University must ensure that all students can access both “safe spaces” and “brave spaces.”  To put this another way, “safe spaces” and “brave spaces” are not in tension with each other. The existence of “safe spaces” increases the likelihood that students will indeed be “brave.” [Back to Top]

Myth Busting

Myth #1: Truth Always Prevails in the Marketplace of Ideas

Often people emphasize that the antidote to (“bad,” including “hateful”) speech is more (“good”) speech. They reassure us that in the “marketplace of ideas,” truth will always win out. But that’s an empirical claim, and if inspected carefully, seems naive. In the marketplace of music, fashion, and food, winners are often determined by popularity, not by what’s best, the highest quality, or the most truthful. Plus, power matters.  Some people have more opportunities to speak than others; more resources to disseminate their speech than others; more opportunities to be heard than others; and greater ability to drown out the voices of others. Speech “marketplaces,” like other marketplaces, often fail to function as we hope they would. Remember, that’s why we regulate markets through tools such as antitrust law and consumer protection law. If power matters and the “best” ideas don’t always prevail, why do we continue to say more speech is always better? The truth is, people who recommend “better” speech to counter “bad” speech do so not because they believe that pursuing that path will guarantee truth or produce the best ideas. It’s because if we fail to respond at all, the perceived “bad” ideas go unchallenged by the perceived “good” ones. [Back to Top]

Myth #2: Freedom-of-Speech is Everything

Yes, we care about freedom of speech—a constitutional value and right—but we care about other constitutional values and rights as well, such as our commitment to equality as mandated by the Fourteenth Amendment’s Equal Protection Clause. The difficulty is that sometimes freedom of speech promotes equality (by, for example, preventing the government from silencing marginalized voices) and sometimes it does not (by, for example, permitting the use of racial epithets). Consider the messy example of harassment, which can include sexual harassment or racial harassment. Sexual harassment violates UC policy and can violate employment and education law. But how does harassment take place? Often through words and expressive conduct (as in pictures). If some coworker insists on pinning pornography to his cubicle walls, those images will predictably impact others who share that workspace. Should his liberty—indeed his freedom—to consume pornography on the job be protected at all costs, even as it undermines the equal opportunity for others around him to work and earn a living? Most people have no difficulty saying that workers cannot consume pornography on the job because it constitutes sexual harassment. Indeed, laws and regulations that prohibit such harassment are generally understood to comply with the First Amendment. But this means freedom of speech can sometimes be constrained to further the right to equality.  The reality—and challenge—is that sometimes equality gives way to freedom of speech, and vice versa. [Back to Top]

Myth #3: Only the Left (or Right) Hates Free Speech

Views about free speech rarely map onto political ideology in some neat way.  To the contrary, history reveals that all sides across the political spectrum have sought to suppress opposing viewpoints. Currently, people on the Left are commonly faulted for seeking to limit speech that they view as racist, sexist, homophobic, fascist, or triggering. Yet at the same time, those on the Right seek to limit speech that they view as desecrating the American flag, disrespecting the national anthem, or flaunting indecency. What’s interesting is that it’s easy to recognize when “they” are limiting speech, but much harder to see when “we” are doing the same. [Back to Top]

Myth #4: Censorship is a One-Way Street

Relatedly, whenever the government comes after us, it’s natural to be outraged and to assert our free speech rights. How dare you constrain my rights? But if the government goes after them—especially when they’re saying things we find stupid or wicked—it’s natural to start cheering. But therein lies the rub. Us and them are just flip-sides of each other. If the government can easily go after them, a different government could just as easily come after us. We are not suggesting that there’s always perfect symmetry or equivalencies; of course, context matters. Moreover, history reveals that some groups have borne the brunt of constitutional rights violations more persistently and systemically than others. But as a general rule, legal rights often work like a double-edged sword. They cut in both directions. If we have rights, so do they. If the government can shut them up today, it can shut us up tomorrow. [Back to Top]