Protected vs. Unprotected Speech
Freedom of speech, expression, and assembly are fundamental rights guaranteed by the First Amendment to the United States Constitution and North Dakota State Board of Higher Education Policy 503.1 As an institution funded and operated by the state, NDSU is considered an arm of the government and may not punish any person for the exercising the rights guaranteed by these constitutions and North Dakota State Board of Higher Education Policy 503.1 As an institution funded and operated by the state, NDSU is considered an arm of the government and may not punish any person for exercising the rights guaranteed by these constitutions.
Protected Speech
Almost all speech and expression are legally protected. This includes many forms of speech and expression that many may find offensive, unacceptable, hateful, or harmful. While NDSU may not punish protected speech, the institution is allowed to address it through dialogue and education when such speech or action is not aligned with our Core Values.
Unprotected Speech
There are several, narrowly defined instances when speech and expression are not protected. When speech or action meets the legal criteria of these definitions, NDSU may, and will, use the Code of Student Conduct to impose appropriate sanctions on students responsible.
True threat of violence: Serious expression of an intent to harm.
Inciting or producing an imminent lawless action: Presents a clear, present, and immediately imminent threat to be acted on by listeners before it can be prohibited.
Disruption of the academic environment: Infringement on reasonable campus rules, interruption of classes, or substantially interferes with the opportunity of other students to obtain an education.
Obscenity: The description or depiction of sexual conduct, taken as a whole, by the average person, applying contemporary community standards, portrays sex in a patently offensive way; appeals to the prurient interests of individuals, and, when taken as a whole, lacks serious literary, artistic, political, or scientific value.
Discriminatory harassment: Applies only when the expression is severe, persistent, and pervasive enough to deny or limit a student’s ability to participate in the educational program. It must be something beyond the expression of views, words, symbols, or thoughts that some person finds merely offensive.
Invasion of privacy: The right of individuals not to be subject to unwanted speech in their own homes.
Fighting words: An expression, “Which by its very utterance inflicts injury or tends to incite an immediate breach of the peace”.
Defamation: Oral or written falsehoods (not a statement of opinion) that are communicated to third parties and would harm another’s reputation.
Adapted from The First Amendment on Campus by Bird, Mackin, & Schuster.
Illegal Conduct
In addition to the above, those wishing to engage in protected speech should be aware of and comply with any local, state, or federal law that intersects with their speech or behaviors. Examples include NDCC 12.1-31-15 preventing the use of masks and face coverings while gathering with others in a public place, NDCC 12.1-22-03 and NDCC 12.1-21-06 restricting protests on private property or near critical infrastructure, and other laws restricting disruptions to traffic and use of amplified sound. The First Amendment does not protect illegal conduct simply because it is motivated by a particular belief or opinion.