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Bias Incident Report Team (BIRT)

Freedom of Speech

Freedom of speech is essential to the university values of UofSC Aiken. As an inclusive and educational community, UofSC Aiken encourages respect and learning. Often this process entails the expression of differing opinions and viewpoints.

The First Amendment of the United States Constitution, as well as supplemented state and federal laws, protects freedom of speech. Freedom of speech is defined as the right of a person to express opinions and ideas without interference, retaliation or punishment from the government. The term “speech” is not limited to just spoken words; it also includes symbolic speech, such as what a person wears, reads, performs, protests, posts, shares, and more.

Types of speech not protected by the First Amendment

Generally, the First Amendment protects all types of speech, but exceptions do exist. Types of speech that are not protected by the First Amendment include the following:

  • Incitements of violence or lawless action: There is no right to incite people to break the law, including to commit acts of violence. For an action to constitute incitement, the Supreme Court of the United States has determined that there must be a substantial likelihood of imminent illegal activity, and the speech must be directed to causing imminent illegal activity. For example, a speaker on campus who exhorts the audience to engage in acts of vandalism and destruction of property is not protected by the First Amendment if there is a substantial likelihood of imminent illegal activity.
  • Fighting words: Speech that is personally or individually abusive and is likely to incite imminent physical retaliation.
  • True threats: Statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. The speaker does not have to act on his or her words (e.g., commit a violent act) in order to communicate a true threat. For example, if a group of students yelled at a student in a menacing way that would cause the student to fear a physical assault, such speech would not be protected.
  • Obscenity: Speech or materials may be deemed obscene (and therefore unprotected) if the speech meets the following (extremely high) threshold: It (1) appeals to the “prurient” interest in sex, (2) is patently offensive by community standards and (3) lacks literary, scientific or artistic value.
  • Defamation: An intentional and false statement about an individual that is publicly communicated in written (called “libel”) or spoken (called “slander”) form, causing injury to the individual.
  • Harassment: Conduct based on a protected category that is so severe, pervasive and objectively offensive, and that so undermines and detracts from the victim’s educational experience, that the victim is effectively denied equal access to an institution’s resources and opportunities.
  • False advertising: A knowingly untruthful or misleading statement about a product or service.
  • Certain symbolic actions: But only if the actions are otherwise illegal, such as tagging, graffiti, littering or burning a cross on private property.
  • Child pornography
  • Interference with medical treatment: Speech that interferes with the treatment of patients.
  • Invasion of privacy: An unjustifiable invasion of privacy or confidentiality not involving a matter of public concern.
  • Material and substantial disruption: An action that materially and substantially disrupts the functioning of the university or that substantially interferes with the protected free expression rights of others.

Historically, the United States’ Supreme Court has defined these terms very narrowly, limiting the authority of the government and public officials to prohibit or prosecute speech, even if it appears to fall into one of these categories.