What constitutes “unprotected speech”?
Certain limited categories of speech do not receive First Amendment protection. The following speech may not be protected:
- Speech that is intended and likely to provoke imminent unlawful action (“incitement”).
- 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 (“true threats”).
- Face-to-face communication of abusive and insulting language that, by its very utterance, inflicts injury, or tends to incite an immediate breach of the peace (“fighting words”).
- Material that appeals to the prurient interest, that depicts sexual conduct in a patently offensive way, and that, taken as a whole, lacks serious literary, artistic, political, or scientific value (“obscenity”).
- False communications that harm an individual’s reputation, cause the general public to despise or disrespect them, or injure them in their business or employment (“defamation”).
- Harassment that violates the Policy on Prohibited Discrimination, Harassment, and Retaliation.
- Speech that infringes on the First Amendment rights of others (“heckler’s veto”).
The determination of whether one of these categories has been met requires a detailed analysis of the facts and circumstances at issue. In general, the bar that speech must reach in order to lose First Amendment protection is very high.
Any member of our community who engages in unprotected speech may be held accountable if their verbal conduct violates the USC Student Handbook, the Policy on Prohibited Discrimination, Harassment, and Retaliation, or other university policy.
Some examples of unprotected speech could include:
- A group of students yelling at and intimidating another student, causing that student to fear for their physical safety.
- A guest speaker on campus encouraging the audience to vandalize and destroy university property, if it is likely that the audience will engage in this illegal activity.
- Posting racist messages in a residential hall may constitute prohibited harassment [1] and therefore not be protected.
Hate Speech
Contrary to a widely held misconception, “hate speech” is generally protected by the First Amendment. This has been established law for over a hundred years. Only if the speech fits within one of the categories of unprotected speech can it serve as a basis for disciplinary action against the speaker.
The term “hate speech” does not have a legal definition in the United States, but it often refers to speech that insults or demeans a person or group of people on the basis of attributes such as race, religion, ethnic origin, sexual orientation, disability or gender. While the university condemns speech of this kind, there is no “hate speech” exception to the First Amendment; the university is only permitted to discipline a student if the speech falls into one of the categories described above. In fact, on many occasions, the Supreme Court has explicitly held that prohibitions or punishments for hateful speech violate the First Amendment.
What does this look like?
One example of possible hate speech would be if someone says “Communists don’t deserve to live.” Although an abhorrent sentiment, this speech would likely be deemed legally protected. On the other hand, pointing a weapon at a known Marxist and saying “Communists don’t deserve to live” would be unlawful and unprotected because it is a true threat [2].
1. See the Office of EEO-TIX (eeotix.usc.edu) for more information about protected classes based on federal law
2. See Watts v. United States, 1969; United States v. Orozco-Santillan, 1990; Lovell v. Poway Unified School District, 1996