First Amendment and State Laws

U.S. Constitution

"Congress shall make no law…abridging the freedom of speech …"
—Amendment I

"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."
—Amendment XIV, Section 1, Making the First Amendment Applicable to State and Local Governments

The First Amendment

The First Amendment to the U.S. Constitution is only 45 words long, yet it protects our most basic freedoms. It reads in full:

"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."

“But, above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”
—Supreme Court Justice Thurgood Marshall, Police Department of Chicago v. Mosley (1972)

California Constitution

"Every person may freely speak, write and publish…sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press."
—Article I, Section 2(a)

California Education Code

"Neither the Regents of the University of California, the Trustees of the California State University, the governing board of a community college district, nor an administrator of any campus of those institutions, shall make or enforce a rule subjecting a student to disciplinary sanction solely on the basis of conduct that is speech or other communication that, when engaged in outside a campus of those institutions, is protected from governmental restriction by the First Amendment to the United States Constitution or Section 2 of Article I of the California Constitution."
—California Education Code Section 66301

First Amendment FAQs

What does the First Amendment protect?
The First Amendment to the U.S. Constitution protects the freedom of speech, not speech itself. The university may regulate unprotected or lesser protected speech, such as:
- • Obscenity (e.g., child pornography).
  • Defamation/libel.
  • Speech involving illegal conduct. Examples may include:
  - - Criminal threat.
    - Hanging a noose on a college campus for the purpose of terrorizing members of the campus community with the knowledge that it is a symbol representing a threat to life.
    - Challenging another to fight in a public place.
    - Use of offensive words in a public place which are inherently likely to provoke an immediate violent reaction (e.g., "fighting words").
    - Speech that incites imminent illegal activity.
    - Willful disturbance of any lawful meeting.
    - Vandalism and defacing of property.
    - Disturbance by amplified sound when not permitted by the university.
What is hate speech, and is it illegal/protected?
The term "hate speech" is not defined by law, and no such category exists as an exception to the First Amendment. Thus, even if speech is hateful or offensive, it is still protected by the First Amendment
Legal scholars have supported the idea that the best way to respond to hateful or offensive speech is not to attempt to limit it but instead to encourage more speech. For example, as Justice Louis Brandeis famously wrote, "[i]f there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence." Whitney v. California, 274 U.S. 357, 377 (1927).
It is important to note that while hate speech is protected, the First Amendment does not protect conduct just because it is motivated by an individual’s hateful beliefs or opinions. Thus, hate crimes may be regulated by law and are not protected by the First Amendment.
UC Davis offers tools and mechanisms to address words or actions that impact campus climate and/or violate university policies. Students who encounter or witness an act of hate or bias are encouraged to submit a hate or bias report and to reach out for support.
Are nonverbal symbols, like burning flags or spray painting swastikas, constitutionally protected?
It depends. The Supreme Court ruled in Texas v. Johnson (1989) that burning the American flag was protected speech. In Tinker v. Des Moines Independent Community School District (1969), it ruled that wearing black armbands to protest the Vietnam War was protected speech. However, the First Amendment does not protect the use of nonverbal symbols to directly threaten, discriminate against, nor harass an individual or encroach upon or destroy private property. Examples might include hanging a noose over a dorm room or spray painting swastikas on the library wall.

Free Speech