The First Amendment’s protections include the vast majority of speech and
expression, but it does have its limits. These limits
have been carefully honed over decades of case law into a handful of
narrow categories of speech that the First Amendment does not protect.
Because of this winding legal landscape, there are many misconceptions as to what
actually constitutes unprotected speech.
Whether you choose to be politically
active on campus or just want to try your hand at
stand-up comedy at an open mic night, it’s important to have an
understanding of where the courts draw the line between protected
and unprotected speech. So, let’s go through a quick rundown on some of the
most commonly misunderstood categories of unprotected speech.
True Threats and Intimidation: First, let’s talk about “true threats,”
a recognized exception to the First Amendment.
In the 2003 decision Virginia v. Black, the Supreme Court of the United States
defined true threats as “statements where the
speaker means to communicate a serious expression of an intent to
commit an act of unlawful violence to a particular individual or group of
individuals”. The Court also held that speech becomes
unprotected intimidation when it is “a type of true threat, where a
speaker directs a threat to a person or group of persons
with the intent of placing the victim in fear of bodily harm or
death”. These definitions place emphasis on the actual intent and seriousness
of the threat. This allows the authorities to take
things like bomb threats seriously while also stopping the government from
punishing clearly hyperbolic expression, such as the infamous photo of Kathy
Griffin holding a depiction of Donald Trump’s head
or a gamer yelling “I’ll kill you!” at another  Fortnite player.
It’s important to keep in mind that these definitions envision speech or
conduct aimed at a specific individual or set of individuals. They do not
include more generalized comments.
In 2007, one student at Valdosta State
University in Georgia learned the importance of the narrowly
tailored definition of true threats. Student Hayden Barnes chose to protest
VSU President Ronald Zaccari’s plan to use 30 million
dollars in student fees to construct two parking garages on
campus. He did so by emailing campus leaders with his
environmental concerns, and posting a satirical collage on
Facebook. The collage included pictures of Zaccari,
a parking garage, and the caption “S.A.V.E. - Zaccari Memorial
Parking Garage,” a sarcastic reference to statements
Zaccari had made about preserving his “legacy” as president of VSU through the parking
garages. Claiming that Barnes’ use of the word
“memorial” implied a threat to Zaccari’s safety, Zaccari had Barnes expelled on the
grounds that he was a “clear and present danger” to the campus.
Barnes filed a lawsuit in part on First Amendment grounds,
and ultimately prevailed. Without the Supreme Court’s careful definition of
true threats, those in power could punish anyone for
pushing back against them, like Barnes did.
Incitement:
Speech also becomes unprotected when it is used to promote
imminent violent or lawless action.  
This exception,
also known as incitement, originated from a 1969 case called Brandenburg v. Ohio.
In that case, the Court distinguished between mere advocacy of lawless
behavior and incitement to imminent lawless
action. In order for speech to lose its protected status,
the Court ruled that there had to be evidence that the language in question
was being used to encourage immediate lawlessness
and that illegal action was likely to take place.
Four years later, the Court applied this standard to a case involving an anti-war
protester on a college campus. Gregory Hess
had been arrested for disorderly conduct after he shouted that protesters would
“take the fucking street later.” The Court overturned his conviction on
the grounds that Hess’s speech “amounted to nothing more than advocacy
of illegal action at some indefinite future time.”
Harassment:
To be considered unlawful student-on-student
(or peer) harassment, behavior must be unwelcome;
discriminatory on the basis of a protected status,
like gender or race; directed at an individual;
and “so severe, pervasive, and objectively offensive” that the
victim is “effectively denied equal access to an institution’s
resources and opportunities.” 
In short, isolated pure
speech or expression is unlikely to constitute harassment on
its own. To qualify as peer harassment,
speech must be targeted, discriminatory, and typically part of a
larger pattern of behavior that hinders the educational experience
of the targeted individual. 
Following someone, repeatedly targeting
them with your conduct, and refusing to leave them alone after
requests to do so can rise to the level of harassment
that would land you in the student conduct office.
Let’s take a look at a case
where a student was improperly charged with harassment by their university.
Back in 2014, at the University of Oregon, a student was hanging out in her
friend’s dorm when she looked out of a window and spotted two strangers,
a male and female student, walking together. She proceeded to shout
“I hit it first!” out the window at them in jest.
Despite apologizing to the students when they confronted her about the joke,
she was charged by the university with “harassment,” “disruption,”
and “disorderly conduct.” Knowing her rights, this student pushed back against
the university, and the charges were ultimately dropped.
Her speech may not have been the height of comedy,
but it was absolutely not punishable by the university consistent with the First
Amendment. If she had followed the other students
to class and continued to yell at them, and if she had specifically targeted
them for their identities, her speech might have crossed the line into
harassment. But this isolated comment did not meet
the Supreme Court’s standard for peer harassment.
Unlawful Conduct: The last category we’ll discuss
is speech that involves unlawful or unprotected conduct such as vandalism,
destruction of property, and disruption. While you may not agree with every event
held on campus, every flyer you see, or every viewpoint
you hear, vandalizing property or disrupting
events is not protected expressive activity.
This includes shout-downs, grabbing microphones,
illegally recording others, blocking entrances,
and related activity. Now, some of the examples just mentioned
are tactics used by some protesters as forms of civil disobedience.
While civil disobedience can be a vehicle for change,
you should remember that civil disobedience is by definition
not protected speech or activity, and that participating in such activity can
lawfully result in punishment. Knowing the law, and in particular
knowing the limits to your First Amendment rights,
is important before thinking about taking such actions.
The First Amendment has been held to allow you to wear a jacket that says
“Fuck the Draft” in a public courthouse, yell “We’ll take the fucking street later!”
during a protest, and burn the American flag in protest.
You can even call for the overthrow of the United States government.
But the university administration has the ability to apply reasonable “time,
place, and manner” restrictions. These restrictions apply narrow limits to when,
where, and how a speaker may present a message.
For example, while it may be permissible to shout “Stop the war!”
or “Support our troops!” at noon in the open space on campus,
the administration has the right to prevent the same speech from being
delivered at the same decibel level in the hall of a dormitory at 3 AM or
right outside of a classroom window, disrupting a class. It’s important to
understand that time, place, and manner restrictions are valid
if they’re reasonable; however, the First Amendment does not
permit targeting the actual content of speech in most instances.
The goal of the university is the pursuit of knowledge, so it has a moral
obligation to maintain an environment free of harassment
and substantial disruption to the educational experience.
If you encounter speech that sets off some red flags for you,
but you’re not necessarily sure if it crosses the line into any unprotected
categories, consider reaching out to the dean of
students or public safety. It doesn’t hurt to ask! Your own voice is
your most powerful tool when advocating for yourself,
your fellow students, and your causes. If you see behavior that rubs you the wrong
way, write an op-ed for your student
newspaper, organize a protest, or join student groups that encourage the kind
of environment you want to be around. Be proactive in creating the college
community you want to be a part of.
