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Freedom of Speech and the Fundamental Standard

As an institution committed to the exchange of ideas, freedom of speech is core to the mission and academic life of our university.  At its best, freedom of speech is transformative, elevating our caliber of discourse, giving voice to the marginalized, and inviting connection across difference.  At its worst, freedom of speech can become divisive, causing very real hurt to members of our community and harm to the fabric of our campus.  Our campus community is therefore called upon to balance the fundamental freedom of speech with the essential goal of fostering an inclusive campus culture. 

In their Notes from the Quad blog, President Tessier-Lavigne and Provost Drell co-authored an important statement on advancing free speech and inclusion at Stanford.  We recommend that everyone who is interested in or affected by this issue start by reading that statement. 

The purpose of this page is to provide further detail on how free speech intersects with the Fundamental Standard and the Office of Community Standards (OCS) student conduct process.

Another Student Posted Something Hurtful and Offensive.  Why Isn’t That a Fundamental Standard Violation?

The Fundamental Standard has set the standard of conduct for students at Stanford since it was articulated in 1896 and states that “Students at Stanford are expected to show both within and without the University such respect for order, morality, personal honor and the rights of others as is demanded of good citizens.  Failure to do this will be sufficient cause for removal from the University.”  One of the basic values under the Fundamental Standard is that “Students are expected to respect and uphold the rights and dignity of others regardless of race, color, national or ethnic origin, sex, age, disability, religion, sexual orientation, gender identity, or socio-economic status.”  Another basic value is that “Students are expected to uphold the integrity of the university as a community of scholars in which free speech is available to all and intellectual honesty is demanded of all.”  We understand that this complex interplay can create some confusion for students, faculty, and staff when determining what constitutes a violation of the Fundamental Standard.

While we sincerely hope that members of our community will express themselves in a respectful manner that does not cause harm to others, a commitment to academic and personal freedom means that many statements that may conflict with our ideals cannot be subject to discipline under the Fundamental Standard. 

Even when the speech in question is reprehensible, the Leonard Law restricts Stanford’s ability to discipline students for engaging in protected speech.

What is the Leonard Law?

As state actors, public universities are held to the strictest of standards when restricting speech and in California, the Leonard Law holds private universities to the same standard (Bird, Mackin, & Schuster, 2006).  As a protected constitutional right, speech may not be subject to discipline unless that speech rises to a legal standard of being unprotected.

What is Unprotected Speech?

Some speech may be subject to discipline if it is so serious and injurious that a specific legal threshold is met.  This threshold varies based upon the type of speech at issue and includes Sexual Harassment; Race-based Harassment; Obscenity; Fighting Words; Incitement of Imminent Lawless Action; True Threat; and Defamation. 

However, it is important to note that these legal thresholds are not easily met and the vast majority of speech on campus will remain protected.  Beyond these express restrictions, even abhorrent speech is protected under the First Amendment and may not be subject to university discipline.

What are Some Examples of Unprotected Speech?

Speech that establishes a genuine physical threat toward a specific individual. While any form of hateful speech may feel threatening, only speech that communicates or incites a serious intent to harm is no longer protected under the First Amendment.  This speech must be directed toward a particular individual or a group of specific individuals and does not include hyperbole, jest, or emotional rhetoric.  In addition, the speaker must have the means, opportunity, and intent of carrying the threat out. Whether or not something constitutes a true threat requires a close examination of the intent and impact of the statement, as the same sentence said in different contexts would yield different results.  For example, someone who flippantly says “Communists don’t deserve to live” in a group of people would not constitute a true threat, whereas someone who points a weapon at a known Marxist while saying “Communists don’t deserve to live” would. (see Watts v. United States, 1969; United States v. Orozco-Santillan, 1990; Lovell v. Poway Unified School District, 1996).

Speech that falls under the legal definition of harassmentSpeech that meets a specific legal standard of harassment is not protected by the First Amendment.  This goes far beyond offending someone.  In higher education, speech must be “so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institutions’ resources and opportunities.” (Davis v. Monroe County Board of Education, 1999).  Here, the speech must be targeted by the speaker toward a specific individual, unwelcome, discriminatory, and so serious that a reasonable person would find it materially limits participation in the educational experience.  The threshold for this is incredibly high.  Speech that is not targeted does not meet the criteria for harassment, even if a listener feels triggered or angered by the content.  In addition, speech that is targeted toward an individual needs to be exceptionally severe to be censored.  For example, a court found that a student flutist who was told unwelcome remarks on 20+ occasions including “Did you have fun with your flute last night?” and “Does it turn you on?” and had her yearbook picture captioned with “one time at band camp” in reference to the movie American Pie was not severe enough to constitute harassment. (Johnson v. Independent School Dist. No. 47, 2002).

Speech intended to provoke someone else to commit an act of violenceOtherwise known as the “Fighting Words” doctrine, speech targeted at an individual with the express purpose of causing a fight is not protected under the First Amendment.  This is a narrow exception that only applies to speech directed at individuals in face-to-face encounters that include physical threats or intimidation.  It does not apply to speakers addressing a crowd, no matter how offensive or confrontational that speech may be.  For example, the Supreme Court found that a fraternity that hosted an “ugly woman” contest with an individual wearing blackface could not be subject to discipline, even if the conduct might incite someone to violence, saying “The First Amendment does not recognize exceptions for bigotry, racism, and religious intolerance or ideas or matters some may deem trivial, vulgar or profane.” (Iota Xi Chapter of Sigma Chi v. George Mason Univ., 1991).

Speech that is excessively sexual to the point of being patently offensive and without any redeeming value. Speech can be restricted if it meets the legal standard of Obscenity.  To be legally obscene, speech must appeal to the “prurient interest”, violate state law by depicting/describing excessively sexual material in a clearly offensive way, and also have no serious literary, artistic, political, or scientific value.  Speech that meets this criterial is rare, and courts have found that even images depicting masturbation and other sexual acts do not meet the standard of obscenity and must be allowed on college campuses so long as they are located in an appropriate location. (Piarowski v. Illinois Community College, 1985).

Speech that materially impacts the educational function of the University.  A student interrupting a classroom lecture, speech outside of a classroom that is so loud it impacts the learning environment, or protests that block access to a classroom and keep a regularly-scheduled class from convening are examples of speech that directly interferes with the University’s ability to fulfill its educational mission.

Additionally, individuals must abide by the University space-use policy.  The University has identified White Memorial Plaza as a “free speech zone”, which is broadly open to all.  Beyond this, areas have site-specific space-use policies that must be adhered to.  In general, University spaces can be reserved by student organizations and University departments.  There are also some spaces that are restricted to a particular purpose and cannot be reserved.  It’s important to note that these restrictions are content-neutral, and uniformly applied regardless of the focus of an event.  Individuals gathering in such areas may be disciplined for failing to abide by the space-use policy.

It is important to note that even if speech is unprotected, the student speaker still has procedural rights.  That means that while the University may react swiftly to limit the impact of unprotected speech, the student would still be given all relevant rights under Stanford’s Judicial Charter, and the disciplinary process must still follow the appropriate course.

What are Some Examples of Protected Speech? 

Speech that is unpopular, offensive, or even abhorrent is protected by the First Amendment. This includes speech that is political in nature, racist, sexist, or otherwise unseemly.  Just as individuals are allowed to have and express controversial points of view, student groups are also permitted to invite provocative speakers to campus so long as they follow the relevant University policies.

Wearing controversial political attire, buttons, or insignia. Free speech is about more than just what is spoken, and messages on clothing are also protected by the First Amendment.  This includes anything from a Black Lives Matter shirt to a Make America Great Again hat (Minnesota Voters Alliance v. Mansky, 2018).

Hate speech. Speech that is offensive to a group of people, but not directly targeted at any specific person(s), is generally protected.  Even if that speech makes non-specific threats against the group being targeted.

Speech that might provoke a violent response. While the University can take some proactive steps to prevent violence when speech might provoke a hostile response, in general such speech cannot be stopped just because it might produce violence.  Doing so would be legally classified as “prior restraint” and is illegal unless done as a last resort in light of a serious safety threat.

So You Aren’t Going to Do Anything?

Just because speech is protected does not mean that it is ethical, consistent with our values as an inclusive and supportive community, or that the university has no recourse in addressing it.  On campus, speech that is constitutionally protected is best addressed by communicating impact, and this can be done through individualized or group educational intervention.  These interventions are often orchestrated informally by student-facing staff working with impacted students, and at Stanford a more formal avenue for recourse is provided through the Acts of Intolerance Protocol facilitated by the Dean of Students Office. 

However, it is important to note that these conversations are intentionally individualized, and do not always address the harm done to the campus community as a whole.

What Can I Do?

To paraphrase Justice Louis Brandeis’ seminal concurrence in Whitney v. California (1927) the appropriate intervention to abhorrent speech “is more speech, not enforced silence.”  It is important for us all to understand the complex interplay between protected speech and building an inclusive campus so that when issues of hateful speech arise we can choose to engage in dialogue instead of censorship. 

In this marketplace of ideas, you have the right to determine which ideas have merit and which do not.  The corollary to free speech is the freedom not to be held as a captive audience, and when faced with abhorrent speech, you have the right to walk away.

Finally, please know that there is a wealth of support resources on campus for students who have been impacted by hateful speech, and for our community as a whole.  These include Stanford’s Community Centers, CAPS, the Confidential Support Team, and a myriad of offices under the Student Affairs umbrella.  Feelings of distress, hurt, confusion, frustration, and anger are all understandable emotions when experiencing divisive speech.  If you are experiencing any of these feelings or simply need a place to process things, please reach out to whichever resource feels best.  There is a community of care here to support you.