Clarifying what free speech really means | KCTCS

Clarifying what free speech really means

by Pam Duncan, KCTCS General Counsel - February 2, 2021

The Bill of Rights contains 10 amendments, but all stand on the First – “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.”  

In fewer than fifty words, the framers laid America’s foundation. The Supreme Court would later declare the First Amendment is “the indispensable condition of nearly every other form of freedom.”  (Palko v. Connecticut, 302 U.S. 319 (1937)). Put simply, without freedom of expression, all rights crumble. However, free speech is complicated, so here’s some information to help you understand it.

Threats violate laws or policies. Students/employees can’t make threats of immediate harm. Rigorous review of such speech includes context, target, logistics of threats, and more. This falls under the old saying most people have heard: Yes, you have free speech, but you can’t yell fire in a theater if there’s not one. Keep in mind offensive, profane, or hate-filled speech typically aren’t considered actual threats.

KCTCS can’t discipline students/employees for personal opinions. Over the last several months, we have heard complaints that someone affiliated with a KCTCS college has posted an offensive comment on social media. Regardless of the medium – in-person, social media, TV – employees/students, not violating other laws or policies, may express personal opinions. Although this is frustrating, we cannot require anyone to delete a post on their own social media page.

If the post is on a KCTCS social media page, that’s a different ballgame. We can remove it. When in doubt call the KCTCS Office of General Counsel (OGC).

Private companies are different and may terminate employees for using racial epithets or offensive language. They aren’t subject to the First Amendment and may limit or react to employee speech in ways KCTCS cannot.

KCTCS may impose some rules on speech without violating the First Amendment. KCTCS may enforce time, manner, and place restrictions that don’t consider content of speech but have safety/order limitations. For example, outdoor campus areas considered public are open to free expression. However, we do have a say on sign-size, amplification, and blocking doors or sidewalks.

Free speech is an “Indivisible Right.” The answer to racist, homophobic, misogynistic, and offensive language isn’t restricting speech. Suppressing speech because it seems immoral or disagreeable, endangers all speech. The answer to bad speech is better speech, not no speech. Ideas and education counter the offensive, hateful, angry, and ugly. Speaking love to hate and hope to fear is more effective than demanding governmental restrictions that endanger all speech.

In today’s world it seems everyone has an opinion on everything. Keep in mind that not every thought needs expressing. Sometimes it is better to remain quiet. This also means we do not have to respond to every comment on our social media sites. Before removing a comment or launching a strong response, take a breath. The Bill of Rights protects everyone, so we must be clear on how we react even when we don’t like what someone says. 

words Free Speech over American flag