The First Amendment

What is “free speech”?

The First Amendment protects nearly all forms of speech from government regulation, with only a few limited exceptions. The United States Supreme Court views laws that limit speech as doing more harm than good, and has indicated that we, as a society, must tolerate speech that some find offensive if the important rights granted by the First Amendment are to be preserved. That speech is protected by the First Amendment does not mean the protection is absolute. The government has some ability to regulate even protected speech in some circumstances, but any regulation of protected speech requires the government to have very strong reasons to do so. Specifically, the First Amendment nearly always bars the government from restricting speech because it disagrees with the message conveyed by the speech. Because restricting speech on the basis of its content is nearly always unconstitutional, the First Amendment generally protects speech that others may find extremely offensive, including speech that may be racist, sexist, homophobic or xenophobic. It also means that government actors – such as public universities – cannot discipline individuals for using protected speech in most circumstances. Private universities and private employers, on the other hand, have more leeway to discipline individuals for using protected speech because they are not government entities.

The following categories of speech are not protected by the First Amendment, and therefore the government has a relatively free hand to punish these kinds of speech:

Incitement to imminent lawless action is speech that is intended and likely to provoke imminent unlawful action.
True threats are statements in which the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence against a particular individual or group of individuals. Importantly, speech can be classified as a “true threat” even if the speaker never actually intended to carry out the threat. Only threats against persons can be punished as “true threats.” In contrast, a threat to commit unlawful violence against property – for example, threatening to key someone’s car – does not constitute a true threat under First Amendment jurisprudence.
Obscenity. Speech or materials are obscene if: (1) the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the “prurient interest” (an inordinate interest in sex); (2) the work depicts or describes, in a patently offensive way, sexual conduct; and (3) the work, taken as a whole, lacks serious literary, artistic, political, or scientific value as judged by national standards.
Fighting words are words that, by the very act of being spoken, tend to incite the individual to whom they are addressed to respond violently and to do so immediately, without any time to think things over. The fighting words category is exceedingly narrow and encompasses only face-to-face communications that would obviously provoke an immediate and violent reaction. Accordingly, even extremely hurtful words used on social media, internet forums, or other online platforms generally do not rise to the level fighting words because the speaker and the listener are not face-to-face.
Defamation is defined as a false communication that harms an individual’s reputation, causes the general public to despise or disrespect them, or damages their business or employment. To be defamatory, a statement must be an assertion of fact, rather than opinion (e.g., the statement, “student X is a racist” might very well be an opinion absent clear evidence that gives the claim a factual basis). In addition to being an assertion of fact, the statement must be capable of being proven false and must identify its victim by naming or reasonably implicating the person allegedly defamed.

Is “hate speech” protected by the First Amendment?

Yes, unless it falls into one of the categories of unprotected speech.

The term “hate speech” is often misunderstood. Hate speech doesn’t have a legal definition under U.S. law, just as there is no legal definition for lewd speech, rude speech, unpatriotic speech, or other similar types of speech that people might condemn. The term often refers to speech that the listener believes denigrates, vilifies, humiliates, or demeans a person or persons on the basis of membership or perceived membership in a social group identified by attributes such as race, ethnicity, gender, sexual orientation, religion, or other protected status. Hate speech may consist of epithets and slurs, statements that promote malicious stereotypes, and speech denigrating or vilifying specific groups. Hate speech may also include nonverbal depictions and symbols.
In the United States, hate speech receives substantial protection under the First Amendment, based upon the idea that it is not the proper role of the government to attempt to shield individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive. Instead, the government’s role is to broadly protect individuals’ freedom of speech in an effort to allow for the expression of unpopular and countervailing opinion and encourage robust debate on matters of public concern even when such debate devolves into offensive or hateful speech that causes others to feel grief, anger, or fear.

Can protected speech be non-verbal?

Yes. The First Amendment protects non-verbal “speech.” Expressive conduct – sometimes referred to as “symbolic speech” – involves communicative conduct that is the behavioral equivalent of speech. The conduct itself is the idea or message. Some expressive conduct is the equivalent of speech and is protected by the First Amendment.

Can WVU restrict or sanction speech solely because of its content?

Generally, no. As a public university, WVU cannot prohibit the verbal or nonverbal expression of an idea merely because others find the idea offensive or disagreeable. The principle is the same whether the speech offends only a few people or virtually everyone except the speaker.

There are three exceptions to this general principle: First, government actors, including WVU, can restrict unprotected speech – for example, a “true threat” – based on its content. Second, when speech that might otherwise be protected by the First Amendment is combined with prohibited conduct, such as stalking or harassment, WVU may lawfully sanction the conduct. Third, where a student is involved in a field of study that mandates adherence to certain professional standards for speech and conduct, the University may also be able to lawfully sanction the speech and conduct suggesting that the student may not be able to meet the standards of their profession.

Does WVU have a policy on free speech?

Yes. See WVU BOG Governance Rule 1.8 – Freedom of Expression.

Does West Virginia have any statutes protecting free speech?

Yes. The West Virginia Legislature passed the “ Forming Open and Robust University Minds (FORUM) Act” in April 2021.

Can public universities sanction speech that disrupts the learning environment?

It depends. Speech in the classroom is governed by professional academic standards, and faculty certainly have the authority to keep the class on topic and on task. The United States Supreme Court has ruled that public schools may sanction speech that causes a “material and substantial” disruption to the learning environment - a standard that gives the public schools somewhat greater authority over the speech of students than the government normally has over speech.

Think this sounds straightforward? Think again.

Courts have stated that the application of this principle in the university setting – as opposed to the primary or secondary school setting – is difficult to explain and likely evades any broad categorical rules. Courts have also likened the university campus to a “marketplace of ideas” that at times may seem rude or distasteful but is ultimately an essential conduit for the free exchange of ideas and viewpoints.

Is controversial nonverbal expression, such as burning a flag, constitutionally protected?

It depends. Burning the American flag is protected speech, as is wearing colored armbands and clothing that says “f*** the draft” to protest a war. However, the First Amendment does not protect the use of nonverbal symbols to directly threaten an individual or encroach upon or destroy private property.

Here is a real-life example:

Two student groups at a public university held an on-campus “free speech event” in response to perceived threats against the First Amendment. Large signs with a racial slur and a hateful symbol printed on them were prominently displayed during the event. Although the university did not sanction the students, the court indicated that the display was protected expression and that, had the university opted to punish them for the display, it would have violated their First Amendment rights.

Why can private universities and private employers discipline individuals who use protected speech if public universities typically cannot?

The First Amendment restricts what governmental entities – such as public universities – may do in response to protected speech. Private universities are not state actors and therefore have more leeway to restrict speech.

“Free speech” does not mean “consequence-free speech.”

Just because you can use offensive speech does not mean that you should. The First Amendment protects speakers from unlawful sanctions by state actors, such as public universities. That does not, however, mean that free speech is entirely free of consequences. For example, the First Amendment does not protect you from being passed over for – or fired from – a job by a private employer, nor does it prevent others from forming negative opinions about you. Using offensive speech may have dramatic effects on how you are perceived by others, and in the digital age those effects may last forever. For more information, see WVU's Social Media Guidelines.

Moreover, when offensive speech is combined with certain types of conduct, WVU may lawfully investigate and properly sanction that behavior. For additional information, please review BOG Governance Rule 1.6 which covers Discrimination, Harassment, Sexual Harassment, Sexual Misconduct, Domestic Misconduct, Stalking, Retaliation, and Relationships.

Student Resources

What can the University do in response to a student who uses offensive speech on campus?

Students are expected to live by the Mountaineer Creed which, among other things, calls for respecting human dignity and cultural diversity. WVU cannot punish a student, however, if they fail to do so. The First Amendment generally protects speech that others may find extremely offensive, including speech that may be racist, sexist, homophobic or xenophobic. State actors – such as public universities – cannot punish or discipline individuals for using protected speech in most circumstances, and therefore the First Amendment typically prevents public universities from expelling, suspending, or otherwise punishing students solely because they used offensive speech that others found upsetting. With that being said, students should aspire to live by the Mountaineer Creed which, among other things, calls for respecting human dignity and cultural diversity.

There are two important factors that can change what a public university may lawfully do in response to offensive speech. First, when speech that might otherwise be protected by the First Amendment is combined with prohibited conduct, such as stalking or harassment, a public university may lawfully sanction the conduct. Second, where the student is involved in a field of study that requires adhering to certain professional standards, a public university may be able to lawfully sanction the student for failing to meet those standards.

Let’s walk through an example: A student uses a racial slur on their personal social media. Can the University punish the student?

Likely, no. Although the racial slur is extremely offensive, it doesn’t fall into one of the categories of unprotected speech identified by the U.S. Supreme Court. Thus, the University is prohibited from punishing the student for using speech that is protected by the First Amendment.

**Can the University do anything in response to a student using offensive speech that is protected by the First Amendment?**

Professionals from the Division of Diversity, Equity, and Inclusion and Office of Student Rights and Responsibilities may schedule an educational conversation with the student in an attempt to reinforce WVU’s community values and reflect on any harm their actions may have caused to individuals and the University at large. Additionally, resources and supportive measures are offered to those affected or harmed as a result of the incident.

Why don’t I hear about what happens to a student that has been reported for using offensive speech and/or engaging in offensive behavior?

The Family Educational Rights and Privacy Act (“FERPA”) is a federal law that protects the privacy of student education records, which include any disciplinary records. The law applies to all schools that receive funds under an applicable program of the U.S. Department of Education.

Generally speaking, FERPA prohibits the University from disclosing the status, outcome, or even the existence of an investigation in response to complaints about a student, unless the student expressly consents to the disclosure of that information or an exception to FERPA’s privacy requirement applies.

The University does, however, take reports of offensive speech seriously. When a complaint is received, the University investigates allegations of conduct that may violate its policies and, if necessary, has educational discussions, offers support measures, and in some situations where lawfully permitted may take lawful disciplinary action.

What can I do as an individual in response to speech on campus?

For more information about what you as an individual can do in response to speech on campus, please see the Counterspeech section.

What can I do if I think that someone has used speech that is not protected by the First Amendment (e.g., true threats, obscenity, fighting words, incitement to imminent lawless action, and defamation)?

If the person is a student, you can file a complaint with the Office of Student Rights and Responsibilities. Information about the lifecycle of a Student Conduct Case.
If the person is an employee, you can contact the Office of Talent and Culture or the Division of Diversity, Equity, and Inclusion.
If you believe that danger is imminent, please contact the University Police Department at 304-293-2677.

What can I do if I think that someone is sexually harassing me?

You can file a complaint with the Division of Diversity, Equity, and Inclusion. Information about the process that is followed once a report of sexual harassment or discrimination is received.

What can I do if I think that my First Amendment rights have been violated?

If you are a student and believe that your First Amendment rights have been violated, you can report the incident to Dean of Students Corey Farris ( Corey.Farris@mail.wvu.edu).
If you are an employee or a party who is not affiliated with the University, you can report the incident to Employee Relations ( EmployeeRelations@mail.wvu.edu).

Are there resources available for students who are affected negatively by speech?

Yes. The Carruth Center provides a variety of psychological, psychiatric, and counseling services. More information about the Carruth Center is available at the following website: the Carruth Center for Counseling and Psychological Services.

The following resources are also available:

Campus and Community Life (support within Student Life) - 304-293-5611
Equity Assurance Hotline - Title IX (Information from the Division of Diversity, Equity, and Inclusion website ) - 304-906-9930
File a complaint regarding discrimination, harassment, sexual and domestic misconduct (including sexual assault), stalking, or retaliation with the Division of Diversity, Equity, and Inclusion.
University Police (with safety concerns) - 304-293-2677
CARE Team (student who needs general support services) - careteam@mail.wvu.edu
WVU’s LQBTQ+ Center - 304-293-9593 - lgbtq@mail.wvu.edu

Faculty and Staff Resources

Do government employees enjoy the same free speech rights as non-governmental employees?

No. The First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern. However, public universities have the right to restrict employee speech that affects the workplace.

Affiliation with WVU does not preclude staff from forming personal ideas and beliefs and sharing them with others. However, when speaking as a private citizen, it is imperative that staff make it clear that they are not speaking as a WVU representative. Otherwise, an individual might assume that WVU endorses the speaker's position on a matter.

Courts engage in a series of inquiries when deciding whether a public employee's speech is constitutionally protected. The first requires determining whether the employee spoke as a private citizen or as a public employee. If the speech is required as part of, or is otherwise related to, the employee’s job then the speech is made as a public employee and is generally punishable by their employer. For example, an employee’s complaints about their employer’s mismanagement of a particular area of work responsibility is usually considered speech as a public employee, rather than a private citizen. If the speech is made as a private citizen, courts then determine whether the speech involved a matter of public concern – or, stated differently, whether the speech involved a subject of general interest and value to the public – rather than a mere employee grievance.

If the answer is no, the employee has no protection from his or her employer's reaction to the speech. If the answer is yes, then the possibility of First Amendment protection arises. The question becomes whether the employer had an adequate justification for treating the employee differently from any other member of the general public. This consideration reflects the importance of the relationship between the speaker's expression and employment. A government entity has broader discretion to restrict speech when it acts in its role as an employer, but the restrictions that it imposes must be directed at speech that has some potential to disrupt the entity's operations.

What is “academic freedom”? Where can I find WVU’s policy on academic freedom?

Academic freedom refers to the right of an individual professor to teach her or his curriculum without undue interference from university officials or the government. More specifically, it ensures the rights of all faculty members and students to freely inquire, study, evaluate, discuss, investigate, teach, conduct research, and publish.

WVU’s policy regarding academic freedom can be found at BOG Faculty Rule 4.1 – Academic Freedom; Academic & Professional Responsibility.

Are there limits to academic freedom and First Amendment protection in the workplace?

Yes. Neither academic freedom nor the First Amendment give someone the right to bully or harass colleagues or students. For more information, please review BOG Governance Rule 1.6 - Rule Regarding Discrimination, Harassment, Sexual Harassment, Sexual Misconduct, Domestic Misconduct, Stalking, Retaliation, and Relationships and the Employee Code of Conduct.

Are there limits on what faculty may say in the classroom?

Yes. The right to free speech and expression can be restricted to achieve legitimate educational goals. Although faculty do not lose their First Amendment rights when they step into the classroom, faculty speech and expression may not be used in a manner that interferes with a school’s educational mission. Academic freedom is bounded by academic disciplinary standards, and faculty are rightly judged by the standards of their disciplines when they seek tenure and/or promotion. Further, not everything a faculty member says in the classroom can be seen as an exercise of academic freedom. With that being said, academic freedom allows faculty to educate students about ideas and subjects that students may disagree with or find offensive. Offensive speech is protected by the First Amendment, and a student’s belief that an idea or subject is offensive does not rise to the level of harassment or discrimination on the part of the faculty member.

Here is an example: During class, a biology professor reacted to supporters of a United States President attending an indoor rally without masks during the COVID pandemic. The professor’s remarks included the following comment: “I hope [the supporters] all get it and die.” The university suspended the professor, and the administration released an official statement indicating that the university would not condone the use of its educational platforms to belittle or wish harm upon people with different political views.

Why don’t I hear anything about what happened to an employee that was reported for using offensive speech?

Investigations of alleged misconduct by University employees are confidential, as are any disciplinary actions taken against them, and information about such confidential personnel matters may be disclosed only to authorized individuals.

What do I do if a student is disrupting the classroom environment?

WVU’s Office of Student Rights and Responsibilities and CARE Team are dedicated to ensuring productive, safe classrooms for all students and instructors. The following guidelines were developed to help faculty members identify and respond appropriately to disruptive classroom behavior. An informal conversation between the faculty and the student should de-escalate most situations. More egregious behaviors rising to threats of health and safety may require a formal intervention potentially involving the Office of Student Rights and Responsibilities, CARE Team, and/or University Police. In all cases, faculty members should keep their department chair, director, and/or dean aware of the issues they are addressing in the classroom.

Step One: Proactive Steps - Set Classroom Expectations

Set out expectations clearly in the course syllabus and review during first class.
Reinforce expectations throughout the class through ongoing announcements or reminders, particularly at key points in the course.
Consider whether classroom participation is worth course credit and, if so, require that professional interaction with the class be a part of the grade for class participation.

Step Two: Minor Disruptions

Address the behavior or misconduct informally in a de-escalating manner, such as a general reminder about the specific behavior to the entire class, with a potential follow-up with the student.

Any follow-up with the student should be documented.

If unsuccessful, and the behavior continues, publicly address the behavior with the student and ask to discuss it after class or at another time.

Follow-up with the student again and refer to previous intervention.
If that is unsuccessful, and the behavior continues, remove the student from class, ask for a follow-up meeting, and refer matter to the Office of Student Rights and Responsibilities (submit a complaint at studentresponsibility.wvu.edu).
If the student refuses to leave or otherwise becomes confrontational, inform the student that continuing to behave in that manner may require contacting the University Police Department (304-293-2677).
Allow some time for compliance; however, if the student does not comply within a reasonable amount of time, contact the University Police Department.
Provide the Office of Student Rights and Responsibilities with documentation of previous attempts to address the behavior and develop a plan for future class participation.

Step Three: Major Disruptions—examples include, but are not limited to confrontational behavior, physical threats, and/or harassment.

Remove the student from the classroom and submit a complaint to the Office of Student Rights and Responsibilities.
The University Police Department should be contacted immediately if the behavior is criminal in nature or poses an imminent threat to the health and safety of others.
If you have concerns about a student’s well-being, a referral should be made to the CARE Team.

For assistance or consultation contact:

Office of Student Rights and Responsibilities - (304) 293-8011
CARE Team - (304) 293-5611
Office of Academic Integrity - (304) 293-8011
University Police - (304) 293-2677

Are there resources available for faculty and staff who are affected negatively by speech?

Yes. The following resources are available to faculty and staff:

WVU Faculty and Staff Assistance Program - 304-293-5590
Equity Assurance Hotline - Title IX (Information from the Division of Diversity, Equity, and Inclusion's website) - 304-906-9930
University Police (with safety concerns) - 304-293-2677

What can I do as an individual in response to speech on campus?

For more information about what you as an individual can do in response to speech on campus, please see the Counterspeech section.

What can I do if I think that someone has used speech that is not protected by the First Amendment (e.g., true threats, obscenity, fighting words, incitement to imminent lawless action, and defamation)?

If the person is a student, you can file a complaint with the Office of Student Rights and Responsibilities.
If the person is an employee, you can contact the Office of Talent and Culture or the Division of Diversity, Equity, and Inclusion.
If you have safety concerns, you can contact the University Police Department at 304-293-2677.

What can I do if I receive inappropriate feedback on an electronic Student Evaluation of Instruction (“eSEI”) that may include language that is not protected by the First Amendment?

If you believe that a student’s written eSEI comments are inappropriate, you may file a complaint using this form.

Written complaints must be received within five (5) business days of receipt of the respective semester's eSEI Report (see “eSEI Reporting Timeline,” below). "Inappropriate comments" are defined as written comments or criticisms of a personal nature and those incompatible with the reasonable assessment of a course, including but not limited to comments that violate the WVU Office of Student Rights and Responsibilities. It should be noted that the eSEI is intended as a tool for students to rate their satisfaction with a course and their perceptions about the quality of teaching.

The Office of Student Rights and Responsibilities and the eSEI Review Panel will independently review the complaint and recommend formal action, if appropriate and depending on the type and severity of the student’s offense. Instructors will be informed of the outcome within five (5) business days. Remedies may include redaction of inappropriate written comments. Appropriate educational and/or disciplinary measures with the offending student will be determined by the Office of Student Rights and Responsibilities, not by the eSEI panel. In the latter case, instructors will be advised only that the comments are being addressed by the Office of Student Rights and Responsibilities with the student. The student’s anonymity will continue to be protected. Additionally, while the eSEI panel may conclude the written comments shall be redacted, the associated numerical ratings will remain in the eSEI report.

eSEI Reporting Timeline: In general, eSEI reports are made available after final grades have been locked in STAR at the end of the semester. The grades lock in STAR at 12:00 p.m. (noon) on the Monday after finals week. eSEI reports (except for College of Law courses) are released later that afternoon.

College of Law Courses: College of Law eSEI reports are released later than other WVU courses. Typically, the eSEI reports for the College of Law are published and released to faculty near the end of the second week of class in the following semester.

What can I do if I think that someone is sexually harassing me?

You can file a complaint with the Division of Diversity, Equity, and Inclusion.

Speech on WVU's Campuses

Does WVU have a rule governing use of its facilities and grounds?

Yes. BOG Finance and Administration Rule 5.5 – Use of University Facilities.

Does WVU have “free speech” zones?

No. Outdoor assemblies of persons may occur on any public grounds on the campus. All outdoor grounds are public grounds, unless those areas are not generally open to the public, such as Athletic Fields. WVU strongly encourages – but does not require – making reservations for outdoor assemblies in advance to ensure that a particular location will be available at a specific date and time, particularly for groups of 50 or more people.

Organizations or individuals may distribute materials outside of campus buildings without permits or advance notice to the University. The University does, however, generally prohibit commercial sales, solicitations, and advertising, including credit card solicitations, in accordance with lawful restrictions on commercial speech.

For additional information, please review the Division of Talent and Culture’s Concessions and Solicitation Policy.

Students, faculty, staff, and recognized campus organizations and departments that wish to assemble inside campus buildings must obtain a reservation in accordance with campus facility reservation procedures. Only students, faculty, staff, and campus recognized organizations and departments may distribute written or printed materials inside campus buildings. For more information about reserving a facility, please review the Event Scheduling Guidelines.

How does the First Amendment apply to speakers who have been invited by student groups to speak on campus?

The First Amendment protects on-campus speech that is extremely offensive, which can include language that many people find racist, sexist, homophobic, and xenophobic. WVU never wants to censor a person’s right to free speech, regardless of how controversial that person’s ideas might be. It is through listening to people who think differently from others that we learn about the world and discover who we really are. It is only through intentional conversations and meaningful actions that we can truly change our University, our state, and our world. While the University will always be committed to creating an open forum that supports free speech, it is also strongly committed to keeping its campuses and local communities inclusive and safe. It is up to students, faculty, and staff to demonstrate the leadership required to create a community that respects each other, listens to each other, and works with one another to create the free and inclusive environment where all can pursue their dreams and aspirations.

Can I interfere with a speaker who’s been invited to campus if I disagree with his or her views?

No. Once a speaker is invited to campus, WVU will take reasonable measures to ensure that the speaker is able to address their audience safely and effectively. WVU cannot restrict or cancel the speech based solely on the content or viewpoint of the speech. However, the University can place reasonable “time, place and manner” restrictions on speech.

What are time, place, and manner restrictions?

The goal of time, place and manner restrictions is to regulate speech in a way that still protects freedom of speech. Time restrictions regulate when expression can take place; place restrictions regulate where expression can take place.

For more information about WVU’s policy on time, place, and manner restrictions please review BOG Governance Rule 1.8 – Freedom of Expression.

Can I interfere with or impair another person’s right to use protected speech on WVU’s campus?

No. BOG Governance Rule 1.8 – Freedom of Expression states:

No Right to Interfere, Impair, or Impede. This Rule does not permit any group or individual to interfere with, impair or impede the following:

The University’s regularly scheduled classes, events, ceremonies, or normal and essential operations.
The flow of vehicular, bicycle, or pedestrian traffic in, around, or through the University’s campuses or within any building.
The boarding or deboarding of the PRT or other any other form of public transportation.
The ingress or egress from any building, parking structure, or driveway.
Within 75 feet of a campus health care facility, to knowingly approach within 8 feet of another person in order to pass a leaflet or handbill, display a sign, or engage in oral protest, education, symbolic speech or counseling, without that person’s consent.
Any University event by blocking audience view, making sufficient noise to hamper a speaker or performance from being heard.
Any other person or group’s lawful assembly or expressive activity, regardless of viewpoint.

To enable the University to function in a safe and secure manner and to advance the University’s mission and objectives, the President may enact reasonable time, place and manner restrictions which are content neutral and narrowly tailored to serve a significant University or other governmental interest. The institution reserves the right to deny, cancel or postpone a reservation, or immediately terminate any ongoing activity that represents a violation of the time, place and manner provisions included in this section.

Counterspeech

What can I do in response to speech that I find offensive, but is protected by the First Amendment?

The U.S. Supreme Court has stated that the proper response to offensive or “bad” speech, is more “good” speech – sometimes referred to as “counterspeech” – rather than laws prohibiting offensive speech. The Court has often referred to the university campus as the “marketplace of ideas,” and thus postsecondary student speech enjoys far more protection than primary or secondary student speech.

Counterspeech is a tactic of countering hate speech or misinformation by presenting an alternate narrative rather than censoring the offending speech. It also means responding to hate speech with empathy and challenging the hate narratives, rather than responding with more hate speech directed in the opposite direction. According to those who advocate for the use of counterspeech, it is more likely to result in deradicalization and peaceful resolution than in further escalation of conflict.

Here are some suggested ways to effectively use counterspeech:

Identify an effective way to encourage meaningful discourse, even when there are differing opinions. Staff are encouraged to consult with their supervisors to ensure the discourse is carried out in an authorized manner that respects the University’s Code of Conduct and does not have a negative impact on the workplace.
To express disagreement before or after an event, identify a means to encourage discourse (opinions and counter-opinions) over mediums already in place at WVU and elsewhere (e.g., sending a guest editorial to The Daily Athenaeum, or sending letters to political representatives, groups, individuals, administrators, and/or responsible parties). Also consider lending support, reassurance, and empathy to others who may be hurt by offensive messages. Be sure to comply with all WVU policies and local, state, and federal regulations.
To express disagreement during an event, consider engaging in peaceful, non-disruptive protest (e.g., messages on shirts, turning your back to a speaker, putting tape over your mouth) if it does not create a disturbance or prevent the speaker from communicating to the audience, or otherwise prevent audience members from hearing and seeing the event.

Inside the room or event: Audience members may choose to leave the event so long as they do not obstruct the presentation.
Disrupting or obstructing the presentation and failing to comply with the directions of University officials to cease disruption or leave the area will constitute a violation of WVU policies and/or the law, and may be grounds for discipline or prosecution.
For events held where access can be controlled/secured, event sponsors may regulate what may be brought into the event space (such as video recorders or other recording devices) and the activities that attendees may engage in. Regulations like these are lawful time, place, and manner (i.e., conduct) restrictions on speech because they do not regulate the content of speech.
Outside the building, room, or event: Peaceful protest or picketing with leaflets, petitions, singing, chanting or signs is allowed as long as it occurs in a space that is open to the public and does not disturb the event or prevent attendees from entering or leaving the event.
Do not block entrances, exits, impede pedestrian or vehicle traffic, or prevent others from entering, hearing, seeing, or leaving the event or speech.
Do not use amplified sound unless allowed by applicable university policies.
Do not disrupt university functions or activities (such as nearby classes) or other events or programs using reserved space.

Before, after, or during the event, consider responding to speech that you disagree with by sponsoring a separate presentation or event featuring alternative viewpoints, such as a teach-in, public forum, vigil, counterdemonstration, or exhibit.
If you are confronted with offensive speech or materials, maintain a safe distance, and do not respond physically. Remember, even though you may find it offensive, it is very likely protected by the First Amendment. Consider organizing an appropriate, nonviolent response. Seek assistance from a WVU official if you feel you are being singled out or targeted, or if you think that the conduct or speech violates the law or WVU policy.

Can I organize a peaceful protest as a form of counterspeech?

Yes, provided that the protest is carried out in accordance with the BOG Rule on Freedom of Expression, and that the protest does not infringe on the First Amendment rights of others.

Those planning a protest are encouraged to contact the University Police Department well in advance to arrange for reasonable safety and security measures.

Staff planning or attending a protest must do so on their personal time outside of regularly scheduled work hours or request annual leave.

Can I yell or shout to make it impossible for others to hear a speaker?

No. This and other similar tactics are sometimes referred to as the “heckler’s veto,” which describes a situation where unpopular speech is suppressed by others through various tactics ranging from creating loud noise that makes the speech inaudible, to occupying an area in which a speaker plans to present.

The First Amendment requires that public universities prevent use of the heckler’s veto, and/or violence or other means of speech suppression (e.g., spitting), regardless of how unpopular or offensive the speaker’s opinions may be.

Social Media Guidelines

The broad protections of the First Amendment are such that public Universities have very little leeway to restrict or punish protected speech that occurs on a person’s private social media.

It is up to students, faculty, and staff to use their own discretion when deciding what should be posted on social media.

Think before you post.

Just because you can use offensive speech does not mean that you should. The First Amendment protects speakers from unlawful sanctions by state actors, such as public universities. That does not, however, mean that free speech is entirely free from consequences.

For example, the First Amendment does not protect you from being passed over for – or fired from – a job by a private employer, nor does it prevent others from forming negative opinions about you. Using offensive speech may have dramatic effects on how you are perceived by others, and in the digital age those effects may last forever. Also remember that when it comes to social media and omnipresent cameras, sometimes you are the content creator, and sometimes you become someone else’s content.

Here are some real-life examples:

Students: Testimonial (e.g., “everyone thinks it won’t happen to them – but it can, and it will. We’ve seen it happen to students,” etc.).
“Harvard Rescinds Admission Of 10 Students Over Obscene Facebook Messages,” NPR, June 6, 2017.
“UConn Students' Arrest Over Racial Slur Prompts Review of State's Ridicule Ban,” Associated Press, Feb. 21, 2020.
More information is available at WVU’s Career Services Center. Career Services video: how social media can affect employment opportunities.

Tips for Students

The University respects the right of its students to post their thoughts on social media. The following should be considered when posting on social media, and may help ensure that social media is used for good – both personally and professionally:

Don’t use ethnic slurs, personal insults, obscenity, profanity, or engage in any conduct that would not be acceptable in WVU’s community. Do not ridicule, exploit, or demean persons because of their age, color, creed, handicap, national origin, race, religion, sex, or sexual orientation. You should also show proper consideration for others’ privacy and for topics that may be considered sensitive—such as politics and religion. If the content of your message would not be acceptable for face-to-face conversation, over the telephone, or in another medium, it will not be acceptable for social media.

If you feel threatened or harassed online, please know that you have options. In these situations, please consider doing the following: 1) Contact University Police at 304-293-2677 if you feel like you are in danger. Provide as much detail about what has happened and provide screenshots and additional supplemental materials to help; 2) Depending on the type of harassment, please know that the University has resources such as the Division of Diversity, Equity & Inclusion, etc., that may be helpful; and/or 3) Report the social media post as harassment.

Tips for Employees

The University respects the right of its faculty and staff to post their thoughts on social media. The following should be considered when posting on social media, and may help ensure that social media is used for good – both personally and professionally:

The line between professional and personal business is sometimes blurred. Be mindful of the content of your post and those who might view it. Be honest about your identity. In personal posts, you may identify yourself as a WVU faculty or staff member. However, please be clear that you are sharing your views as an individual, not as a representative of the University.

Anything that you post can potentially tarnish the University’s image. We urge you to exercise sound judgment and common sense. Online, your personal and business personas are likely to intersect. The University respects the free speech rights of its faculty and staff, but you must remember that WVU community members, colleagues and supervisors often have access to the online content that you post. Keep this in mind when publishing information online that can be seen by more than just friends and family, and know that information originally intended just for friends and family can be forwarded to other individuals.

Even if you are not an official online spokesperson for the University, you are one of our most vital assets for monitoring the social media landscape. If you come across positive or negative remarks about WVU that you believe are important, consider sharing them by forwarding them to social@mail.wvu.edu. You may come across negative or disparaging posts about WVU or see third parties trying to spark negative conversations. Unless you are a certified online spokesperson, avoid the temptation to react.

Don’t use racial or ethnic slurs, personal insults, obscenity, profanity, or engage in any conduct that would not be acceptable in the WVU community. Do not ridicule, exploit, or demean persons because of their age, color, creed, handicap, national origin, race, religion, sex, or sexual orientation. You should also show proper consideration for the privacy of others and for topics that may be considered sensitive—such as politics and religion. If the content of your message would not be acceptable for face-to-face conversation, over the telephone, or in another medium, it will not be acceptable for social media.

It’s a small state, and WVU is a large institution. Remember that what you say can be seen by others all over the state, and something you say in one area might be inaccurate or offensive in another. Your post may also be construed by others in ways that you did not intend. Keep this in mind any time you’re talking about the University.

If you feel harassed or threatened online, please know that you have options. In these situations, please consider doing the following: 1) Contact the University Police Department at 304-293-2677 if you feel like you are in danger, provide as much detail as you can about what has happened, and provide screenshots and additional supplemental materials to help; 2) Depending on the type of harassment, please know that the University has resources such as the Division of Diversity, Equity & Inclusion, etc., that may be helpful; and/or 3) Report the social media post as harassment.

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