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First Amendment and the Meaning of "Free Speech"

The First Amendment to the United States Constitution is part of the Bill of Rights. It ensures against governmental intrusions on the essential personal freedoms - freedom of religion: freedom of the press; free expression; freedom of association; and, freedom of assembly.  Regarding free expression, “Congress shall make no law . . . abridging the freedom of speech”.  The Courts have interpreted the language to mean that no arm of the government, federal or state, can abridge the free speech right.  In this context, MSU is an arm of state government.

What is the rationale underlying the right to “free speech?”  Thomas Jefferson and other Founders believed that minimizing the limits on what people were free to say was essential for a “liberal democracy” to thrive.  The “marketplace of ideas” belief holds that the truth and good public policy arise from the competition of widely varying ideas freely shared in public discourse.  The Founders also thought that open exchanges of ideas would encourage tolerance among people with opposing views.

What does the right of free expression encompass?  The government may not: a) prohibit one’s own expression; b) prevent one from receiving another’s expression; c) compel one to express certain views; d) foster adherence to an ideological viewpoint; or, e) compel one to subsidize speech to which one objects. It is the right to express one’s beliefs, without any form of governmental interference, that is at the heart of “free speech.”

Are there exceptions to speech that is shielded from governmental intrusion?  Yes.

Most exceptions relate to health and safety concerns.  Speech that promotes an unlawful end, such as a speech urging people to riot, is not protected.  There are exceptions for “fighting words”, “terrorist threats”, “defamation”, “obscenity”, and “false advertising”.  However, the exceptions are meant to be narrow.  (Certain limits apply solely to public employees.) 

How does one determine what constitutes “fighting words”, or “obscenity”?  There is no pat answer. The courts are responsible for guarding against the generally accepted wisdom of the day being treated as required thought.  One may not yell “Fire!” in a crowded theater - not because to do so is foolish or offensive, but because to do so would create a real possibility of imminent injury. Similarly, the “fighting words” exception only reaches words “which by their utterance inflict injury or incite an immediate breach of the peace.” Chaplinski v State of New Hampshire, 315 US 560, 572 (1942).  Words that are distasteful or highly offensive are not normally “fighting words.”

A lesson to be drawn from the experience of democracy is that when freedom is taken for granted, it is at risk of being lost.  Each citizen and each generation is called to actively maintain the First Amendment.  It is all about mutuality.  Citizenship does not entail necessarily saying or believing anything in particular.  It does entail accepting that others may hold and express their beliefs as they choose.

The Anti-Discrimination Policy includes the following provision:

These prohibitions are not intended to abridge University community member's right of free expression or other civil rights.  It is important to remember that just because the expression of an idea or point of view may be offensive or inflammatory to some, it is not necessarily a violation of the ADP. MSU values freedom of expression and the open exchange of ideas and, in particular, the expression of controversial ideas and differing views that is a vital part of the University discourse. Following is a statement from President Lou Anna K. Simon discussing the interplay between harassment (disruption) and protected speech (dissent) and providing a collection of university rules and regulations on the topic.

 A Summary of MSU Polices and Regulations: President Lou Anna K. Simon's Statement on Free Speech Rights and Responsibilities

President Simon issued a statement on Free Speech Rights and Responsibilities informing the campus community that fundamental to Michigan State University's philosophy on campus dissent is a belief that the rights guaranteed in the first and Fourteenth amendments of the Constitution must be protected. The University has worked for decades to establish a community consensus on the scope of intellectually productive and constitutionally protected dissent, and to distinguish it from impermissible disruption. That consensus is now embodied in several documents, which have received student, faculty, and administrative review and approval. Although some of the passages set forth below were developed to delineate student rights and responsibilities, the principles enunciated are generally applicable to members of the University community. READ MORE