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New Student Orientation Resource: Student Rights to Freedom of Expression

November 30, 2020

In 2018, the Commonwealth of Virginia established by statute a requirement that all public institutions of higher education orient new students on “speech that is constitutionally protected under the First Amendment to the United States Constitution and the process to report incidents of disruption of such constitutionally protected speech.”  In 2018 and 2019, this topic was covered with new undergraduate students during on-Grounds summer orientation.  However, this year we were unable to host summer orientation in-person due to COVID-19, so we have prepared and posted this summary of resources to assist new students.

The University’s Statement of Students’ Rights and Responsibilities (STAF-003) begins with the following statement:

The University of Virginia is a community of scholars in which the ideals of freedom of inquiry, freedom of thought, freedom of expression, and freedom of the individual are sustained.  The University is committed to supporting the exercise of any right guaranteed to individuals by the Constitution and the Code of Virginia and to educating students relative to their responsibilities.

The Statement of Students’ Rights and Responsibilities goes on to explain that:

…[T]he exercise and preservation of these freedoms and rights require a respect for the rights of all in the community to enjoy them to the same extent.  It is clear that in a community of learning, willful disruption of the educational process, destruction of property, and interference with the orderly processes of the University or with the rights of other members of the University cannot be tolerated.  Students enrolling in the University assume an obligation to conduct themselves in a manner compatible with the University’s function as an educational institution.

The First Amendment protects a wide range of speech, including on controversial topics of the day.  It also protects much of what we often characterize as “hate speech.”  As a result, there is natural tension between broad First Amendment rights to free expression in a public university and a desire to create and maintain a community in which everyone feels included, respected and supported.  Some speech that is constitutionally protected, and thus outside the scope of formal University sanction through the University Judiciary Committee, may nonetheless impact certain members of the community disproportionally, with a potential negative impact on their educational experience.  If we are to achieve both important goals – a robust intellectual community where people feel free to speak their minds on important public issues + a diverse community where all feel included and welcome – we must be mindful of the power of our words.  This is why the policy definition of “Students’ Responsibilities” begins by explaining:

The exercise and preservation of these freedoms and rights require a respect for the rights of all in the community.  Students enrolling in the University assume an obligation to conduct themselves in a manner that is civil and compatible with the University’s function as an educational institution. 

To fulfill the University’s mission, each of you must feel empowered to speak your mind, but do so in a way that provides space for dissenting views and allows for a true exchange of ideas.  It means making a sincere effort to think about the impact of hateful rhetoric and culturally insensitive statements even though you may have a constitutional right to say these things.  It means engaging with those who disagree, even when the subject is a topic of great personal importance to you.  Of course, there are some individuals who are not interested in engaging you constructively or in truly listening to the views of others.  They may also be interested solely in creating division or distrust, rather than seeking to understand and engage in healthy debate.  Such individuals are likely to be the exception, however.

There are some forms of expression that are not constitutionally protected and are subject to sanction by the University.  The most common of these include harassment as defined by University policy, including a subset of specific gender-based harassment; disruption of University operations; preventing an invited or permitted speaker from speaking or being heard by others in attendance; directing threats to a person or group with the intention of placing them in fear of bodily harm or death; advocacy intended to and likely to incite imminent lawless action; and slander/libel/defamation.  Virginia also has laws prohibiting: “harassment by computer,” criminalizing communication via computer or computer network of certain obscene, vulgar, profane, lewd, lascivious, or indecent language, or language threatening an illegal or immoral act, with the intent to coerce, intimidate, or harass an individual; and “use of a person’s identity with the intent to coerce, intimidate, or harass,” criminalizing publication of a person’s name or photograph along with either their home address or certain other personal identifying information, and done with the intent to coerce, intimidate, or harass them.

Even when a statement is constitutionally protected, the University or other members of the community may use their own respective voices to criticize, denounce, or express disagreement with that statement.  We are not shielded from criticism, even if we may be shielded from formal University disciplinary action.  Posting something online often has negative consequences, either by placing you or others in an unfavorable light or unleashing individuals trolling online who may respond in ways never intended or expected.  Regardless of whether the “doxing” activity falls within the more narrow scope of prohibited criminal conduct, it nonetheless can be potentially dangerous to the person targeted.  Students should promptly report any actual threats received as a result of doxing or other social media activity using Just Report It, or by dialing 911 in an emergency.

The University’s primary policy on freedom of expression on Grounds, PRM-017, sets forth broad protections for the free expression rights of students, faculty and staff (collectively defined in the policy as “Affiliated Persons”).  Under the First Amendment and applicable state law, the University is permitted to put into place content-neutral, reasonable policies as to the time, place and manner of speech tailored to significant interests such as enabling the academic enterprise to proceed without disruption.  These policies include when, where and how amplified sound may be used; the manner and location of posting flyers and chalking on sidewalks; how space may be reserved and used; and some regulations of demonstrations during certain ceremonies and events.  There are Housing policies specific to on-Grounds University residences.  You may also wish to briefly review the helpful FAQ on PRM-017.

The information provided above is intended to offer insight into your broad rights to free expression as a student, links to relevant University policies and state laws, and important things to consider as you exercise these rights within a diverse intellectual community.  Each of you should feel empowered to speak passionately on subjects of interest or importance, while working to respect each other and create a truly inclusive community.

Allen W. Groves,
University Dean of Students