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Protected Speech, Discrimination and Harassment

Anti-Discrimination and Anti-Harassment Policies

Stanford abides by the provisions of Title VI of the Civil Rights Act of 1964, which prohibits unlawful discrimination on the basis of race, color, and national origin, as well as the provisions of Title IX of the Education Amendments of 1972, which prohibits discrimination on the basis of sex. In keeping with the obligations of these statutes, Stanford addresses any claim by community members that they have faced discrimination or harassment based on their sex, race, color, or national origin. Speech, or speech combined with conduct, that may meet the legal standard for harassment based on sex, race, color, or national origin, as well as speech that could indicate discriminatory behavior should be reported to the Title IX Process (with respect to sex) or the Title VI Process (with respect to race, color, or national origin). The previous Protected Identity Harm Reporting (PIHR) process is being eliminated as of Fall 2024, and those who feel they have experienced discrimination or harassment should use these processes instead. 

Speech and Conduct Not Protected by the First Amendment

The First Amendment tolerates a wide range of speech including speech that is deeply offensive to many. As the U.S. Supreme Court has explained, “[i]f 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.” Texas v. Johnson (1989). Under California’s Leonard Law, students at Stanford enjoy freedom from discipline for speech to the same extent that they would be protected against governmental punishment for expression by the First Amendment. See Cal. Educ. Code § 94367.

One frequent source of confusion for students stems from the fact that the term “hate speech” is often used colloquially to describe speech that is offensive or targets those with a particular identity. In a number of other countries, this may be a category of prohibited expression. However, “hate speech” is not a concept in First Amendment jurisprudence, and indeed the First Amendment protects many things that could be described as hate speech. As Justice Alito wrote in the U.S. Supreme Court in Matal v. Tam (2017), echoing a famous 1929 opinion by Justice Oliver Wendell Holmes, “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.’” Instead, narrower legal concepts such as harassment, true threats, and incitement form the outer boundaries of protected speech in the United States.

Certain kinds of speech may also be prohibited or subject individuals to sanction based on content. These include: 

  • Speech communicating a true threat:
    • While any form of hateful speech may feel threatening, only speech that communicates a serious intent to commit an act of violence against the recipient 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 and must intend or act with reckless disregard of whether the statement would be understood as a genuine threat. 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 meets the legal standard for harassment:
    • In higher education, the harassing behavior (including speech) must be of a kind that is “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 or group, unwelcome, based on a protected characteristic, and so severe or pervasive that a reasonable person would find it materially limits the target’s participation in the educational experience. The threshold for this is very high. Under current case law, 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 or defined group needs to be quite severe to be covered. 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 had not demonstrated conduct severe enough to constitute harassment. (Johnson v. Independent School Dist. No. 47, 2002).
  • Speech intended to provoke someone else to commit an act of violence:
    • Otherwise 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).
    • Similarly, the test for incitement to violence under Brandenburg v. Ohio (1969), a case involving a KKK rally that was found to be protected by the First Amendment, requires that, to lose its constitutional protection, speech must be “directed at inciting or producing imminent lawless action” and actually be “likely to incite or produce such action.” 
  • Speech that is obscene: 
    • 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 these criteria 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 situated in an appropriate location. (Piarowski v. Illinois Community College, 1985.)

In addition, speech that violates the Campus Disruptions Policy or other content-neutral time, place and manner restrictions is not protected by the Leonard Law or the First Amendment and can be subjected to student discipline.