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Know Your Rights

The First Amendment

The First Amendment to the U.S. Constitution protects our most basic freedoms:

“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.”

The First Amendment forbids public entities, including universities, from restricting or regulating expression because of its message or ideas.

Frequently Asked Questions

What is Academic Freedom?

Academic freedom is the First Amendment free speech principle applied in the scholarship and teaching setting. Academic freedom ensures:

  • freedom of inquiry and research
  • freedom of expression in the pursuit of academic publication
  • the provocation of debate and thought in the pursuit of teaching

Academic freedom protects the legitimate development and exploration of ideas in the academic environment by a university faculty member, made in furtherance of the institution’s educational mission, but free from any political, cultural, and organizational intimidation.

Academic freedom gives the faculty member the full range of motion in academic viewpoints and in discussing matters – sometimes controversial and emotion-filled – in academic pursuit, and in stirring the mind and engaging civil discourse and debate.

You can read the preamble to the Boise State Faculty Constitution, which also discusses the concept of academic freedom.

Does the First Amendment Protect Civil Disobedience?

The First Amendment protects the right to dissent in many forms, but not civil disobedience, which is not protected speech under the Constitution. By definition, civil disobedience refers to the refusal to obey laws or regulations by violating them.

Actions and speech in civil disobedience may conflict with the free speech rights enjoyed by others, and may disrupt or interfere with university business and academic efforts, or even threaten public safety or university assets in ways that require the university or law enforcement to act to protect those other interests.

Example of speech with less protection

  • Commercial speech (e.g. advertising)
  • Obscenity (e.g., child pornography)
  • Defamation – libel or slander (i.e. written or spoken false statements)
  • Speech involving illegal conduct.  For example:
  • Criminal threat: Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement is to be taken as a threat, even if there is no intent of actually carrying it out. The threat must be, on its face and under the circumstances in which it is made, so unequivocal, unconditional, immediate, and specific as to cause the person threatened to reasonably fear for his or her own safety or for his or her immediate family’s safety.
  • Hanging a noose on a college campus for the purpose of terrorizing members of the campus community with the knowledge that it is a symbol representing a threat to life.
  • Resisting, delaying or obstructing a police officer.
  • Fighting, or challenging another to fight, in a public place.
  • Use of “fighting words” – words in a public place which are inherently likely to provoke an immediate violent reaction or breach of the peace.
  • Inciting illegal activity.
  • Unlawful assembly and refusal to disperse.
  • Vandalism and defacing property of another.
  • Disturbance by loud and unreasonable noise.
  • Trespass.

What is Harassment?

Not all offensive speech that you may feel harassed by truly constitutes “harassment”. Harassment is prohibited by university policy and is not protected by the First Amendment.

“Harassment” demeans or shows hostility or aversion toward an individual because of protected class status*. It must be sufficiently severe or persistent to create an intimidating, hostile or offensive environment for academic pursuits, employment, or participation in university-sponsored activities.

In addition, Idaho Code §18-7901 imposes criminal sanctions upon those who – for the purpose of inciting and provoking damage to property and bodily injury or death – advocate unlawful acts against a person or group based on race, color, ancestry, religion or national origin.

*Protected Classes

Individuals cannot be discriminated against based on these characteristics:

  • Race
  • Color
  • Religion
  • Gender
  • Age
  • Sexual orientation
  • National origin
  • Physical or mental disability
  • Veteran status
  • Genetic information
  • Any other status protected under applicable federal, state, or local law

Hate Speech vs. Hate Crimes

Hate speech is protected by the First Amendment. Hate crimes are not protected.

“Hate speech” is not defined by law, and is not an exception to the First Amendment. Even if speech is hateful or offensive, it is still protected by the First Amendment. However, hate speech that involves illegal conduct is not protected by the First Amendment.

Hate crimes – acts or conduct motivated by a speaker’s beliefs – are not protected by the First Amendment. For example, vandalizing a person’s car with racial epithets or raising a bat to intimidate a person based on race or national origin may constitute vandalism and assault. These actions are hate crimes unprotected by the First Amendment.

The State of Idaho has deemed that some speech, inciting or provoking action but without action, can be a violation of the law. See Title 18 of the Idaho Code, entitled Crimes and Punishments, the Idaho Legislature adopted Idaho Code §18-7901.

What are methods of Free Speech delivery?

  • Spoken word
  • Print
  • Internet
  • Social media
  • Radio
  • Television

Free speech on the internet and social media is entitled to the same level of protection as print and other media, as determined in Reno v. ACLU, 521U.S. 844 (1997).

Social media platforms require you to agree to certain terms and conditions, which may serve to regulate the speech in a way that the social medium itself deems appropriate. So a platform can and often does take action to remove or hide social media statements that violate its terms of use.

How does the First Amendment impact the Shared Values?

Boise State’s Statement of Shared Values was adopted to “strive to create an inclusive and intellectually vibrant community.” While the Statement of Shared Values serves as a set of aspirational goals, they are not rules, laws or policies. This means that even though your speech may be at odds with the Statement of Shared Values, you cannot be punished by the university for such speech. You can read the Statement of Shared Values here.

How does the First Amendment impact Diversity and Inclusion?

The Statement of Diversity and Inclusion aligns with the Statement of Shared Values and makes a commitment to diversity and inclusion. While the Statement of Diversity and Inclusion is dedicated to diminishing prejudice, oppression, and discrimination and increasing dignity, respect, and working collectively, it is not a rule, law, or policy. This means that even though your speech is at odds with the Statement of Diversity and Inclusion, you cannot be punished by the university for such speech. You can read the Statement of Diversity and Inclusion here.

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