Freedom of Expression Guidance
Purpose and Scope
As detailed in the Freedom of Expression Policy, the freedoms of speech, thought, expression, and assembly are core values of Carnegie Mellon University and bedrock to the university’s mission of creating a transformative educational experience that is open to the free exchange of ideas. The purpose of this document is to provide supplemental guidance for interpretation and application of the university’s Freedom of Expression Policy. This guidance is based on substantial work done by the university’s Commission on Academic Freedom and Freedom of Expression, the membership of which included representatives from across campus, including faculty, staff and students. This guidance does not supersede the Freedom of Expression Policy; rather, it is intended to explain general values, principles, and helpful examples to aid in the interpretation and application of the Freedom of Expression Policy.
1. Guiding Principles
Guiding principles pertaining to these freedoms at the university include:
The General Breadth of Freedom of Expression
The university upholds and protects the free exchange of ideas and open discourse and should be a place where deep discussions on issues of importance are held (including the engagement of speakers who will thoughtfully present, embody, and defend diverse perspectives and ideas). This protected freedom extends to the expression of challenging and/or unpopular opinions. However, in exercising this freedom, members of the university community are expected to treat each other professionally and with civility.[1]
Limits on Freedom of Expression
The right to this freedom, however, is not unfettered and may be restricted by the university under narrow circumstances. Such limits are those which are dictated by law and those necessary to protect the rights of other members of the university community, as well as to ensure the normal functioning of the university. Importantly, though, any limitation by the university on expressive activity must be content and viewpoint neutral and carefully tailored.
The Heckler’s Veto. The exercise of freedom of expression must allow for all members of the university community to exercise the same freedom. While freedom of expression includes the right to oppose others’ expressive activities, it may not interfere with those activities or impair their ability to be seen or heard. Commonly known as the “heckler’s veto,” obstructing or suppressing another’s right to exercise their freedom of expression by threatening or causing disruption will not be tolerated at events organized by and offered for members of the Carnegie Mellon community. Audience members who can avert their eyes and ears have no right to disrupt speech they dislike or find offensive, and the university will not disinvite or otherwise suppress speech because of anticipated actions by such hecklers.
The Captive Audience. The university gives greater deference to speech that is presented in a way that is easy to avoid by audiences who would be offended by it. For example, if a book’s text is offensive, those who would be offended by it can choose not to read it.
The university recognizes that elements of the “captive audience doctrine” — environments where the audience is unable to avoid a message — are relevant to the balancing of interests between speaker and unwilling listener. This concept has at least two important domains of application at the university. First, residence halls are homes, and the captive audience doctrine already recognizes that listeners’ rights to not hear are greater in their homes — including university residence halls — where they cannot further retreat, than in public areas. Second, students in the classroom are not free to leave without risk of consequence. So, the ability of the unwilling listener to “avert their eyes” or “close their ears” is reduced, and commensurately, the responsibility of the speaker not to offend is greater. The same concepts apply to graduate students vis a vis their advisor or lab group members, given the substantial cost and difficulty of changing advisors or research group in the middle of one’s course of study.
Unlawful or Prohibited Conduct. Unlawful activity or other conduct prohibited by university policy will not be permitted, even if done in connection with an expressive activity. Such conduct includes harassment and threats of bodily injury or damage to property (hereafter “threats”).[2] While it is possible to harass or threaten not just individuals but also groups, the standard for what constitutes harassment or credible threats against a group (as distinguished from specific individuals) is higher,
and should be considered especially carefully, with the understanding that general unspecified statements do not meet this threshold.
Balancing the Normal Functioning of the University. Carnegie Mellon is responsible for balancing several institutional interests in the operation of the university. In addition to safeguarding freedom of expression, it must ensure the physical safety of individuals on campus, maintain academic and administrative functions that support the university’s academic mission, and protect campus facilities and grounds. In order to balance these substantial interests, as provided by law, the university may put reasonable parameters on events and activities occurring on campus, including expressive activities. (See Section 2, “Time, Place and Manner Limits.”)
Academic Freedom in the Classroom
Academic freedom is an essential part of freedom of expression within modern universities and is a right enjoyed specifically by faculty.[3] Academic freedom confers very strong protections, including for statements made in the classroom. Academic freedom is not, however, unlimited. For example, it does not protect speech such as harassment or threats. Crucially, within the classroom, academic freedom protections only apply to statements germane to the subject being taught.[4]
Given the university’s commitment to providing a respectful and inclusive environment, faculty should be particularly careful to avoid introducing extraneous or harmful speech related to any legally protected class as described in the university’s Statement of Assurance.
That caution does not apply to controversial ideas that are central to the subject being taught, but, rather, only to extraneous, unrelated ideas. Thus, as to course-relevant material, academic freedom grants faculty the right to say things that are disliked, controversial, or that some may find offensive.
Nonetheless, Carnegie Mellon’s community norms recognize two important reasons why faculty should, as a matter of good citizenship, be thoughtful in choice and presentation of materials in the classroom. The first is the power imbalance between faculty and students. One argument for free speech is the belief that the best ideas will prevail in the marketplace of ideas when all can be expressed equally. But there is not equal power within the classroom. Hence, when leading discussions of controversial topics on which there are multiple views, faculty should take care to avoid signaling their own views or affiliations, directly or indirectly. Doing so risks swaying students’ expressions in anticipation of approval or more lenient grading.
The second is the concept of the “captive audience doctrine” referenced above. Carnegie Mellon recognizes that the balancing of speakers’ and listeners’ rights is different in the classroom than in public spaces elsewhere on campus. Within the classroom, that balancing should place particular emphasis on the tone and scholarship with which controversial ideas are presented. This includes questions and attempts to explore the implications of controversial ideas; faculty, as well as students, should be permitted to explore ideas — even those which they do not hold or may then reject — without fear of punishment. However, speech in the classroom that is abusive, discriminatory or harassing in violation of applicable university policy is not protected.
On the other hand, it is important to note that academic freedom also protects intramural or extramural speech — meaning statements made on campus (intramural) or off campus (extramural) as citizens or members of society about general matters of public concern. Since students are not captive audiences of statements made outside of the course, students generally cannot expect the university to intervene or pursue disciplinary action against faculty for such speech. Students have some rights not to hear certain things in the classroom, but they do not generally have a right to only be taught by people who never say such things elsewhere in life.
The Use of Social Media
Though social media provides a powerful vehicle to share news and opinions, several guidelines for behavior consistent with the university’s Code of Business Ethics and Conduct rely on discretion and common sense (e.g., confidential or proprietary information about the university, its faculty, its students, its schools and units, its alumni or its employees should not be posted). Further, because posts are likely to be viewed by non-university parties, anyone posting in an official capacity should ensure that their messages, if reposted or taken out of context, reflect a professional face for the university. When it might be unclear whether one is speaking in an official capacity or as a private individual, an appropriate disclaimer should be included. For more information, please see the university’s Social Media Guidelines.
Expressive Activity Protected Under the National Labor Relations Act
The Freedom of Expression Policy is not intended to restrict and shall not be interpreted to restrict the rights of employees to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection under the National Labor Relations Act, including but not limited to strikes, demonstrations, handbilling or any other lawful protected concerted activity.
2. Time, Place and Manner Restrictions
As discussed above, in balancing institutional interests, the university may impose reasonable time, place, and manner restrictions on the exercise of speech, expression and assembly. For example, depending on the location of an event, the university may restrict the length or time of day of an event to avoid interference with core education or administrative functions. Likewise, the university may weigh several factors of an event, such as the size, time and technical needs, in designating the appropriate location for it to occur. Finally, the university may place certain restrictions on sound levels, signage, and other conditions in order to ensure the physical safety of participants, bystanders and university property. However, such parameters are applied on a content and viewpoint neutral basis.
The university’s time, place and manner restrictions include, but are not limited to the following:
- Procedures for the advance scheduling of events and reservation of facilities.
- Policies and procedures related to advertising, posters and graffiti.
- Expectations and procedures related to painting the Fence.
- Procedures for security for events held on university property.
3. Security Considerations When Sponsoring an Expressive Activity Event
University organizations that sponsor invited guests to campus are expected to uphold Carnegie Mellon's educational mission by planning carefully to create safe and thoughtful experiences for those involved. Such good faith planning includes consideration of whether security is required for the event and, if so, how such services will be obtained. In those circumstances, consultation with University Police is advised. In addition, protection of speech is not absolute, and some forms of speech, particularly that which would not be protected by the First Amendment if the university were a public institution, may be restricted by the university (see Section 4 below).
At times, members of the campus community or their invited guests may have a legitimate basis for being accompanied by independent security personnel. It is incumbent upon the host of such an individual to ensure that the University Police approve in advance the presence and scope of involvement of any such security personnel.
Considerations for the Community
Hosts. As Tartans, we share both the privileges and responsibilities that come with being part of the Carnegie Mellon community. “Hosts are responsible for the behavior of their guests and should exercise due care to ensure that all participants abide by relevant university policies.”[5] This means that, when hosting an expressive activity, hosts are expected to partner with the university in planning, scheduling and running the event, which includes complying with all applicable laws and university policies and procedures — and not to encourage anything to the contrary. Hosts should exercise due care to ensure that all participants abide by such policies and procedures.
Spontaneous Gatherings. The university recognizes that geopolitical or local events may spark the desire for spontaneous gatherings without any prior planning. Although such circumstances may give rise to a sense of urgency or excitement, they must be viewed in the context of the shared campus community, as well as the university’s substantial interest in, and right to, place boundaries on the time, place and manner of events as discussed above. On these occasions where such expressive activity otherwise must be scheduled following the Procedures for Scheduling and Safely Hosting On-Campus Events Involving Expressive Activity, organizers should contact Student Affairs for an expedited review of the gathering. Spontaneous gatherings that are not approved are subject to the university’s discretionary decision as to whether it is in the best interest of campus safety, security and operations to prevent or disband the event, or not. It is the university’s aspiration that all community members will embrace the university’s commitment to campus safety, security and operations as expressed through these procedures, and therefore uphold them. All decisions made by the university (including Student Affairs) will be content and viewpoint neutral.
Interpretation of the Freedom of Expression Policy and Guidelines. It is understood that the Freedom of Expression Policy, as well as these guidelines, cannot anticipate every circumstance. As such, the university will necessarily exercise discretion in the interpretation and application of the Policy within the general framework of these guidelines and further will consider in this regard specific recommendations of the university’s Commission on Academic Freedom and Freedom of Expression, as applicable. As a private institution committed to protecting free speech, in most cases the university will take an approach that is broadly consistent with interpretations of the First Amendment but may draw the lines at a different place than a public institution would be compelled to.
4. Addressing Conduct Falling Outside the Protection of the Freedom of Expression Policy
The Freedom of Expression Policy is intended to safeguard and protect the freedoms of speech, thought, expression and assembly. As such, the Policy is not intended to be punitive, and it does not include procedures to handle alleged violations. Rather, conduct that falls outside the protection of the Freedom of Expression Policy may be subject to disciplinary action under other applicable university policies and procedures. Disciplinary action may also be imposed for adjacent conduct, such as the failure to follow the university’s procedures for scheduling, planning, and managing events.
When enforcing other policies and procedures, the university is mindful of the Freedom of Expression Policy, approaches situations in a nuanced manner and endeavors to avoid actions that unnecessarily chill speech. Accordingly:
- The university is a place of learning, growth and development. It is also a place of patience, grace and forgiveness. The goals of the university’s response to uncharacteristic and isolated violations of norms should be reconciliation, learning, and non-recurrence, reserving more significant action for more serious noncompliance.
- As noted, freedom of expression does not protect speech that constitutes prohibited discrimination or harassment. Speech that violates the university’s policies regarding discrimination and harassment may be subject to disciplinary action in accordance with such policies. Such policies include the Statement of Assurance, Discriminatory and Sexual Misconduct Policy, and Community Standards.
- The university generally will not take disciplinary action against faculty, staff and students for statements made by that person before coming to the university, particularly if the university is aware of the prior conduct at the time of hire or admission.
- Members of the university community generally will not be subject to disciplinary action by the university for statements — including on social media — that are made outside of the university, when the speaker has made clear that they are not speaking in an official capacity, and when the statements are not directed at members of the university community and do not constitute harassment or threats directed at specific university-affiliated individuals or organizations. The same principle and limitations apply to the expression of opinions contrary to the university’s values or official positions.
Endnotes
[1] With respect to faculty, the university notes the expectation set forth in the American Association of University Professors’ 1940 Statement on Academic Freedom and Tenure that faculty “should at all times be accurate, should exercise appropriate restraint, [and] should show respect for the opinion of others.” As is consistent with the Code of Business Ethics and Conduct and the Carnegie Mellon Code, this expectation has meaning not only for faculty, but also for the expression of staff and students.
[2] Neither the institution of tenure nor other faculty privileges related to academic freedom should impede investigation of harassment or threats.
[3] Academic freedom is rooted primarily in employment contracts and university policy. It protects faculty against actions by others within the academic community, notably by the university itself.
[4] In the language of the American Association of University Professors’ 1940 Statement of Principles on Academic Freedom and Tenure: “Teachers are entitled to freedom in the classroom in discussing their subject, but they should be careful not to introduce into their teaching controversial matter which has no relation to their subject.”
[5] This statement appears in the Freedom of Expression Policy, originally adopted March 3, 1988, as amended by the President’s Council on February 2, 2007.