FAQs: Free Speech

The First Amendment of the United States Constitution grants you the freedom of speech, which is the right of a person to articulate opinions and ideas without interference or retaliation from the government (including public institutions). The term “speech” constitutes expression that includes far more than just words, but also what a person wears, reads, performs, protests and more. The First Amendment even protects speech that many would see as offensive, hateful or harassing. 

In Oregon, your right to freedom of speech is even more sweeping. Oregon’s State Constitution contains one of the broadest free speech protections in the country.[1]

Free speech can sometimes protect seemingly harassing or slanderous speech. 

Discriminatory harassment is defined as harassment in an educational institution on the basis of a protected characteristic (race, sex/gender, gender identity, sexual orientation, religion, national origin, disability, or other protected classes listed in PSU’s Prohibited Discrimination and Harassment Policy); that is that is so severe, persistent or pervasive that it interferes with or limits a student, faculty, staff, volunteer or PSU community member’s ability to participate in or benefit from the university’s educational and/or employment opportunities, programs or activities.  Discriminatory Harassment includes Sexual Harassment.  Faculty and staff are required to report incidents of discriminatory harassment to the Office of Equity and Compliance or the Dean of Student Life Office.  Similarly, if you or someone you know at Portland State has been subjected to discriminatory harassment, please contact the Office of Equity and Compliance. 

 “Defamation” is an objectively false statement communicated to another person that causes damage to one’s reputation, which then results in financial damage (e.g. loss of a job, loss of clients, demotion, etc.) If proven, it can be punishable by Oregon law. If the statement can be proven true, it is not defamatory. There are two types of defamation - libel (communicating a defamatory statement by writing or picture), and slander (defamation by oral or spoken communication.)[5] Speech that may be perceived as defamatory could be protected by Oregon’s free speech doctrine depending on the circumstances. 

Oregon courts tend to err on the side of protecting (rather than punishing) the speech, if the speech is perceived to be a subjective opinion.[6]

The Constitution guarantees freedom of speech, placing the burden on the state to demonstrate whether there are any circumstances that justify its limitation.

Examples of exceptions to free speech protections are:

• Speech that would be deemed a “true threat”: Speech that a person reasonably would perceive as an immediate threat to his or her physical safety is not protected by the First Amendment. For example, drawing a firearm during a protest and waving it around.

• Incitement of illegal activity: Incitement of illegal activity: There is no right to incite people to break the law, including to commit acts of violence. To constitute incitement, the speech must be directed to causing imminent illegal activity and there must be a substantial likelihood of imminent illegal activity. For example, a speaker on campus who exhorts the audience to engage in acts of vandalism and destruction of property is not protected by the First Amendment if there is a substantial likelihood of imminent illegal activity.

• Harassment in an educational institution aimed at an individual on the basis of a protected characteristic (race, gender, sexual orientation, religion); that is also pervasive and severe; is a direct or implied threat to employment or education; or creates an intimidating, hostile and demeaning atmosphere. For example, posting racist messages on the dorm room of an African American student would be regarded as harassment and not speech protected by the First Amendment. Portland State is required under Title IX, Title VII, Oregon anti-discrimination laws, etc. to make the university welcoming for all people, including, protected classes, and therefore required to curb this kind of “speech,” however, case law has upheld citizen's rights to say similar things outside of the educational institution (say, in the Park Blocks).

The term “hate speech”  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 (see section above on discriminatory harassment), there is no “hate speech” exception to the First Amendment unless it is speech that is not  protected as described in the previous section. In fact, on many occasions, the Supreme Court has explicitly held that prohibitions or punishments for hateful speech violate the First Amendment.

Just because there is a First Amendment right to say something, however, doesn’t mean that it should be said. The First Amendment protects a right to say hateful things, but as a campus we strive to be a community where no one will choose to express hate.

Although there is no prohibition on hate speech under the free speech doctrine, a hate crime – a crime that is motivated by hate for a particular group – is not protected by free speech. In Oregon, a hate crime is when one intentionally “subjects another to offensive physical contact” or “subjects such other person to alarm by threatening” to inflict serious physical injury or damage the property of the victim or their family because of the person's perception of the victim’s race, color, religion, national origin, sexual orientation, or gender identity.[7] Because hate crimes are less concerned with the speech itself than with determining the motivation of the crime, hate crimes and any accompanying hateful speech are not protected by the free speech doctrine.

The concept of a "free speech zone" on a college campus might sound like it supports speech, but it can often be used to push controversial speech to out of the way zones in ways that are overly limiting.

Rather, Portland State University uses the public forum doctrine to determine what viewpoint neutral policies for the times and manners a particular space can be used.

For example, traditional or designated public forums are those places that are open and used by the public such as the Park Blocks or Urban Plaza. These spaces have fewer restrictions on how people can gather. Whereas a conference room or gym would be a limited public forum and there may be more restrictions on who can use the space and how the spaces are used and managed. A non-public forum might be a lobby, classroom, or office space, those spaces can be restricted to limit public expression or have restrictions for entry or use.