Freedom of expression at UD

The First Amendment safeguards both speech and various forms of expressive activities, including plays, satire, political cartoons, protest armbands, political buttons, and slogans on T-shirts, among others. It also protects employees' rights to speak as private citizens on matters of public concern. It is designed to protect individuals’ rights to express their thoughts and opinions without government interference or regulation.

No, several types of speech and expression are not protected under the First Amendment, including but not limited to:

• True threats: These are statements where the speaker intends to convey a serious intent to commit an unlawful act of violence against a specific person or group.

• Fighting words: This is speech directed at an individual that is likely to provoke an immediate violent reaction.

• Obscenity (including child pornography): This material may be considered obscene (and therefore not protected) if it (1) appeals to a prurient interest in sex, (2) is patently offensive according to community standards, and (3) lacks literary, scientific or artistic value.

• Incitement: The U.S. Supreme Court has held that there needs to be a significant likelihood of imminent illegal activity, and that the speech is directed at inciting such activity. For example, if a speaker on campus urges the audience to engage in vandalism or destruction of property, the speech is not protected by the First Amendment if there is a substantial likelihood of imminent illegal activity.

• Defamation: This is a false statement about an individual, made intentionally and publicly in written form (libel) or spoken form (slander), that causes harm to that individual.

The University can impose restrictions on speech that is protected under the First Amendment, but these restrictions must be narrowly tailored and cannot be based on the content of the speech. Common restrictions include regulations related to the time, place and manner of expression, provided they are applied equally and do not suppress specific viewpoints.

The Supreme Court has recognized that places like a university can regulate the "time, place and manner" of speech. This means that the right to speak on campus does not guarantee the freedom to do so at any time, in any location, or in any manner a person chooses. The University of Delaware can control when, where, and how speech occurs to ensure the smooth operation of the campus and to meet important objectives, such as maintaining public safety. For events involving controversial speakers, for example, the University of Delaware can exercise this authority to schedule events in ways that maximize their success and minimize risks to campus safety. The University relies on the recommendations of its police department to determine the best ways to hold safe and successful events. For instance, the University might use its time, place and manner discretion to ensure that an event featuring a highly controversial speaker is held in a venue that campus police consider secure, such as one with multiple exits, the ability to be cordoned off, and no floor-to-ceiling glass. This need to consider time, place and manner regulations is why students are required to coordinate with the administration when planning their events, rather than scheduling and organizing them independently.

The University cannot ban or penalize speech based on its content or viewpoint. Since student organizations have the right to invite speakers to campus and use campus facilities for this purpose, the University cannot revoke that right or restrict those resources due solely to the speaker's views. An event featuring an invited speaker can only be canceled or declined under exceptional circumstances, outlined in the above “Are all types of speech and expression  protected?” section. Additionally, once a speaker is invited by a student group, the University is obligated to take reasonable steps to ensure that the speaker can safely and effectively address their audience without facing violence or disruption.

The term "hate speech" does not have a specific legal definition in the United States, though it generally refers to speech that insults or demeans individuals or groups based on attributes like race, religion, ethnicity, sexual orientation, disability or gender. While the University of Delaware strongly condemns such speech, there is no "hate speech" exception to the First Amendment, making it illegal only if it falls into one of the categories mentioned earlier. The Supreme Court has repeatedly ruled that prohibiting or punishing hate speech violates the First Amendment. However, just because the First Amendment protects the right to express hateful ideas doesn't mean those ideas should be voiced. As a campus, we strive to foster a community where no one chooses to spread hate.

The Supreme Court has held that the First Amendment does not allow the prohibition of speech merely because it may provoke a hostile reaction. Preventing speech before it happens is known as "prior restraint," and such actions are almost never permitted. While the University is required and committed to safeguarding speakers and preventing disruption or violence, a speaker's event may only be canceled or declined if, despite all efforts by the university, there is a significant threat to public safety and no other viable alternative. This is an absolute last resort and is never done based on the speaker's views. The university's foremost priority is to ensure the safety of its students, staff, and faculty.

Yes, you can demonstrate or protest against an invited speaker, provided that such activities are conducted in accordance with University policies regarding time, place and manner. Protests should be conducted peacefully and should not disrupt University operations or infringe on the rights of others. Here are some guidelines for safe protesting:

• Avoid actions that infringe on others' rights, such as blocking movement or access.

• Do not attempt to prevent that speaker from speaking by disrupting the event or shouting over a speaker. Those actions are likely not to be protected by the First Amendment as it violates the free speech rights of the speaker. 

• Follow lawful instructions from police officers or public officials, such as remaining behind barricades, dispersing when an area is declared an unlawful assembly, and not resisting arrest. Disobeying a lawful order from a police officer is illegal.

• Leave areas where illegal activities or violence are taking place. Your presence could be seen as participating in a riot or unlawful group action. Staying overnight in campus buildings after hours is not allowed.

• Avoid speech that encourages others to commit violent acts like pushing, kicking, spitting, property destruction, or other illegal activities.

• Make informed choices. If you decide to engage in civil disobedience and face arrest, be aware of the potential consequences.

Individuals or groups are not allowed to silence others by shouting over them or otherwise obstructing their ability to be heard, an action commonly referred to as a "heckler’s veto." While it is acceptable to protest speakers on campus with whom you disagree, it is not permissible to take actions that hinder the speaker from sharing their views or that stop the audience from hearing or seeing the speaker.

Yes, the University of Delaware can prohibit discriminatory harassment that creates a hostile environment or denies equal access to educational opportunities, as such harassment can be regulated under Title IX and other federal and state laws. This prohibition is consistent with both legal requirements and the University’s commitment to a safe and inclusive campus environment.

Employees may express their personal views and engage in expressive activities outside of work hours. When doing so, it’s important for employees to be clear they are speaking as private citizens, not as representatives of the University, or within the scope of their employment.

The University of Delaware cannot prohibit speech on public property such as city sidewalks that are adjacent to campus. The City of Newark also cannot prohibit speech on public property solely because it is offensive or hurtful, as long as it does not fall into categories of unprotected speech (e.g., harassment, incitement to violence). The University and/or the city cannot control speech that occurs on public sidewalks or areas near campus.

Yes, the First Amendment applies to chalking on campus as a form of free expression. However, the University can regulate chalking in terms of the locations where it is permitted and ensure that it does not damage property or disrupt university operations. See here for more information.

No, while individuals may feel compelled to erase or chalk over messages, and/or remove or tear down displays they find offensive, the University's policies on campus expression must be followed. It is important to address concerns about offensive messages through appropriate University channels rather than taking unilateral action that may conflict with campus policies.

The University of Delaware cannot prevent invited speakers from coming to campus solely based on their history of criticizing groups of people based on protected characteristics, as long as their speech does not fall into categories of unprotected speech (e.g., harassment, incitement to violence). The University must apply its policies consistently and fairly.

The following expressive activities are prohibited on the campus of the University of Delaware:

• Posting or placing any objects or materials, such as signs or posters, outside of designated areas.

• Affixing anything to campus buildings, structures, benches, statues, fountains or natural landmarks.

• Setting up standing signs or structures (e.g., sandwich boards or tents) on University grounds.

• Obstructing building entrances, corridors, roads or pathways (expressive activities are allowed on pathways as long as they do not impede the movement of pedestrians, emergency vehicles, or accessibility vehicles).

• Covering your face to conceal your identity in order to avoid accountability while breaking campus rules or engaging in illegal activities.

• Refusing to provide identification when requested by campus personnel who have shown their credentials and are enforcing University policies.

• Interrupting or obstructing University operations.