As an institution of higher education, Western Michigan University is committed to fostering an environment that allows the right to express and listen to all views, even if such views are unpopular. The free exchange of ideas is paramount to the values of inclusion and critical thinking that WMU promotes through teaching and experiential learning. This page addresses frequent questions regarding how WMU protects free speech on campus.
Questions and Answers
What is freedom of speech?
Freedom of speech refers to the right of a person in the United States to express their views regarding issues of public importance without interference, threat, or retaliation from the government. This right arises from the First Amendment to the U.S. Constitution.
What is “speech”?
For purposes of the First Amendment, there are various types of speech such as political speech, commercial speech and governmental speech. Speech may be protected to various degrees under the First Amendment. For example, political speech is protected to the greatest extent under the Constitution whereas commercial speech enjoys less protection. Certain types of speech have no protection under the Constitution such as defamatory speech. Further, speech under the Constitution includes more than just words. Political speech, for example, may be actual speech (the words you use or do not use), symbolic speech (clothes you wear, actions you take or do not take), or money as speech (using your money to support a political issue or candidate).
The First Amendment
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. U.S. Const. amend. I.
You may find more information about the First Amendment here.
Are there exceptions to First Amendment protection?
Yes. Although the First Amendment protects expressive activities that one might consider offensive such as flag-burning, wearing armbands, using the symbol of the swastika or political cartoons, some types of speech are not protected. For example, illegal speech (such as child pornography), an invitation to commit imminent lawless action, or fraudulent speech, are not protected. Some types of harassment may not be protected if the actions meet a specific, objective legal standard. Speech that substantially disrupts classes or campus activities and commercial advertising is not protected. To learn more about these and other exceptions to First Amendment protection, see “Freedom of Speech and Press: Exceptions to the First Amendment,” a pamphlet published by the Congressional Research Service.
Is hate speech protected by the first amendment?
Yes. Hate speech is generally defined as insults towards a person or group of people based on their race, religion, ethnic origin, sexual orientation, disability or gender. The Supreme Court has been clear that this kind of speech is protected under the First Amendment, most recently, in the case of Matal v. Tam, 137 S. Ct. 1744 (2017). In that case, the government sought prohibit a band from registering a trademark that was "racially disparaging." In upholding band’s trademark, the Supreme Court found:
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.” Id. at 1764 (quoting United States v. Schwimmer, 279 U. S. 644, 655 (1929) (Holmes, J., dissenting)).
Although WMU protects the right to free speech and must allow the speech, including hate speech, to occur, this does not imply that the University shares or endorses the speaker’s views. We are a community of learners committed to human dignity, sustainability, social responsibility, and justice. Thus, WMU does not condone expressions of any kind that go against these values.
Why is the right to free speech so broadly protected?
The First Amendment provides such broad protections because democracy requires that people must have to right to advocate against unjust laws and policies and it is more harmful to give officials the extraordinary power to censor or penalize people for expressing views they do not like. Moreover, WMU believes that free speech is essential to create the right conditions for novel thinking. This principle is a foundation to the University's mission of building intellectual inquiry and discovery in a way that fosters knowledge and innovation and transforms wisdom into action.
Because the right to free speech is indivisible, limiting or suppressing the speech of a person or group compromises everyone’s rights because the same laws and arguments used to censor bigots can be used to silence you. Conversely, the laws that protect the right to free speech of the so-called controversial speakers can be used to defend women’s rights activists, anti-racial discrimination protestors, LGBTQ activists, and others who fight for equality and justice.
Multiple court cases show how defending the right to free speech of one group serves to protect the rights of others. For example, in Brandenburg v. Ohio, 395 U.S. 444, the Supreme Court defended the right to free speech of a Ku Klux Klan leader on the basis that government cannot punish inflammatory speech unless that speech is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action" (Brandenburg v. Ohio 1969). The precedent set in that case became the basis to free Gregory Hess, a demonstrator involved in a protest against the Vietnam war (Hess v. Indiana, 1973).
May WMU regulate speech on campus?
Yes. The University may place time, place, or manner restrictions on public speech so long as those restrictions are “narrowly tailored to serve a significant governmental interest,” are content-neutral, and leave open other channels for communicating the information. For example, the University may regulate the timing, duration, and frequency of protected activity if the activity substantially disrupts the normal “work” of the campus, e.g., the educational environment or administrative duties. See the Public Event Policy for more information.
May the University cancel an event that is considered controversial because the event or the reaction to the event is likely to become violent?
Maybe. Under the First Amendment, WMU may not regulate protected speech based on its content. Additionally, based only on fear that the people responding to or protesting the protected speech may cause violence. The latter is commonly known as the “heckler’s veto.” The prohibition against the heckler’s veto states that the University may not cancel or prohibit an event, or charge controversial speakers more for security costs, where the concern or the cost is necessary only because of the expected actions of those who are protesting the speech. However, if the University has concrete evidence that an event poses a serious and current threat of safety to the campus community, it may prohibit that event from occurring so long as its analysis is content neutral.
For this reason, the University encourages Registered Student Organizations, professors, and the campus community at large to collaborate with administrators prior to hosting an event on campus so the University and the organizer may work together to take mutually-agreeable measures to adequately protect all involved.
May members of the University community protest on campus?
Yes. Equally important as a speaker’s First Amendment right to express their opinion is the right to protest that opinion. However, shouting down a speaker to the point that they cannot express themselves will likely be considered a heckler’s veto and, thus, a violation of that speaker’s right to free speech. See Public Event Policy for more information.
Students should also be aware that, under the WMU Student Code of Conduct, WMU may sanction disruptive behavior, which includes but is not limited to:
Participation in a campus demonstration which disrupts the normal operation of the University and/or infringes on the rights of other members of the University community; leading or inciting others to disrupt scheduled and/or normal activities within any campus building or area; or intentional obstruction which unreasonably interferes with freedom of movement, either pedestrian or vehicular, on campus or other University property. Art. IV, part B.
Refer to the WMU Student Code of Conduct for further details on this matter.