Protected vs. Unprotected Speech

Freedom of speech, expression, and assembly are fundamental rights guaranteed by the First Amendment to the United States Constitution and Article 1, Sections 4 and 5 of the Constitution of North Dakota.  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.

Protected Speech

Almost all speech and expression are legally protected.  This includes many forms of speech and expression that many may find offensive, unacceptable, 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.

Defamation: Oral or written falsehoods (not a statement of opinion) that are communicated to third parties and would harm another’s reputation.

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.

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.

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.

Fighting Words: An expression, “Which by its very utterance inflicts injury or tends to incite an immediate breach of the peace”.

Invasion of Privacy: The right of individuals not to be subject to unwanted speech in their own homes.

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.

Adapted from The First Amendment on Campus by Bird, Mackin, & Schuster.

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