Free Speech, Expression and Assembly

Freedom of speech is the right of a person to articulate opinions and ideas – even opinions and ideas that may be unpopular, controversial, or disagreeable to others – without interference or retaliation from government entities such as UTEP. The term “speech” constitutes expression that includes far more than just words, but also what a person wears, reads, performs, protests, and more.

In the United States, freedom of speech is protected by the First Amendment of the U.S. Constitution, as well as the Texas Constitution and many state and federal laws. The United States’ free speech protections are among the strongest of any democracy; the First Amendment protects even speech that many would see as offensive, hateful, or harassing. This is not to say that a person has an unfettered right to say anything in class or on campus, only that a vast amount of speech is protected even if it is offensive or morally questionable.

The U.S. Constitution prohibits UTEP, as a public institution, from banning, punishing, or regulating speech, expression, or assembly based on its content (i.e., speech about a certain matter, regardless of viewpoint) or its viewpoint (i.e., speech concerning only one side of a certain subject matter).

At the same time, public institutions like UTEP have discretion to adopt rules regulating the “time, place, and manner” of speech, expression, or assembly on their campuses, so long as the rules are content- and viewpoint-neutral and are narrowly tailored to serve a compelling institutional interest. The right to engage in speech, expression, or assembly on UTEP campuses is not an unfettered right to speak at any time, at any place, and in any manner that a person wishes. UTEP can regulate where, when, and how speech occurs to preserve the public educational mission of its buildings, facilities, and common outdoor areas and achieve other compelling public interests, such as protecting student and public safety.

As of September 1, 2019, common outdoor areas of UTEP are considered a traditional public forum. This means any member of the general public is free to engage in expressive activity on any topic in common outdoor areas of UTEP, so long as the speaker’s conduct is lawful and does not materially and substantially disrupt the functioning of UTEP. Members of the general public may engage in expressive activities in common outdoor areas in accordance with the time, place, and manner rules discussed in the policy.

Students, faculty, staff, and recognized student, faculty, and staff organizations are free to express their views on any topic, individually or in organized groups, in all buildings, facilities, and common outdoor areas of UTEP, subject only to the rules necessary to preserve the equal rights of others and other functions of UTEP. An individual invited and presented as a guest speaker by a registered student, faculty, or staff organization, or an administrative or academic unit of UTEP, may also engage in expressive activities in UTEP buildings and facilities.

Adhering to the time, place, and manner rules discussed in the policy will help ensure the functions of UTEP are not materially and substantially disrupted.

When requested by a UTEP representative or law enforcement officer, a person must identify themselves while on any property or in any building owned or controlled by UTEP.

“Common outdoor area” refers to outdoor space of UTEP property that is not used for dedicated UTEP business or events, an educational function, or a research function on either a permanent or temporary basis. The term also does not include outdoor surfaces of UTEP buildings, surfaces associated with or connected to UTEP buildings, UTEP structures, spaces dedicated to temporary outdoor banners or exhibits, or any other space within UTEP’s limited public forum.

UTEP’s limited public forum refers to all UTEP property, indoor or outdoor, that is not part of the common outdoor area of UTEP property.

Members of the public, students, faculty, staff, and recognized student, faculty, and staff organizations may engage in expressive activities in common outdoor areas of UTEP – such as public assemblies, demonstrations, or protests – subject to any reservations that have been made for specific space(s); subject to any rules that address the use of amplified sound or other time, place, manner rules; and as long as the expressive activities are not materially and substantially disruptive. Indoor or outdoor encampment is prohibited.

Members of the public, students, faculty, staff, and recognized student, faculty, and staff organizations are expected to respect all quiet hours in and in the immediate area surrounding campus housing facilities (Miner Heights, Miner Village and Miner Canyon). More information for these quiet hours is available in the UTEP Resident Handbook.

UTEP’s limited public forum is available for students, faculty, staff, and recognized student, faculty, and staff organizations.

Recognized student, faculty, and staff organizations or academic and administrative units may reserve the use of a room or space at UTEP or facilities during normal operational hours. Academic and administrative units of UTEP will have priority in reserving the use of rooms and spaces.

Recognized student, faculty, and staff organizations, and academic and administrative units with a reservation have the right to the reserved room or space for the time covered by the reservation. Any individual, organization, unit, or faculty member, staff member or student using or occupying a room or space without a reservation must yield control of the room or space in time to permit the organization or unit with a reservation to begin using the room or space promptly at the beginning of its reserved time.

“Expressive activity” refers to any speech or expressive conduct protected by the First Amendment of the U.S. Constitution or by Section 8, Article I of the Texas Constitution. In practice, expressive activity means any non-curriculum related assemblies, protests, speeches, distribution of written literature or material, carrying of signs, stationary structures or displays, or circulation of petitions.

Under UTEP and University of Texas System policies, expressive activities do not include commercial speech (i.e., advertising, promises, and solicitations with the purpose of initiating or engaging in a business transaction of some kind).

The First Amendment protects a broad range of expressive activity (including speech that may be controversial, hurtful, or repugnant). Even so, there are types of expression that lose First Amendment protection and are not acceptable under UTEP policies:

Incitement of Illegal Activity

There is no right to incite people to break the law, including to commit acts of violence. For example, a speaker on campus who exhorts the audience to engage in acts of vandalism and destruction of property is not protected by the First Amendment if there is a substantial likelihood of imminent illegal activity.

Speech that would be deemed a “true threat”

Speech that a person would reasonably perceive as an immediate threat to their physical safety is not protected by the First Amendment. For example, if a group of students yelled at a student in a menacing way that would cause the student to fear a physical assault, such speech would not be protected.

Harassment

Harassment aimed at an individual on the basis of a protected characteristic (race, gender, sexual orientation, religion) that is also pervasive and severe; is a direct or implied threat to employment or education; or creates an intimidating, hostile, or demeaning atmosphere. For example, posting racist messages on the residence hall room based on the perceived or actual ethnicity of a student would be regarded as harassment and not speech protected by the First Amendment.

Obscenity

Expressive activity may be deemed obscene (and therefore unprotected) if the expressive activity meets the following (extremely high) threshold: (a) it appeals to the prurient interest in sex; (b) is patently offensive by community standards; and (c) taken as a whole, lacks serious literary, artistic, political, or scientific value. Chapter 43, Subchapter B of the Texas Penal Code addresses obscenity and related offenses.

Defamation

A statement may be defamatory (and unprotected) if it is an intentional and false statement about an individual communicated to a third party, resulting in damage to the individual’s reputation.

UTEP supports the right to assemble. Public assemblies (protests, picketing, etc.) are allowed. UTEP encourages all who engage in protest activity to do so safely. In addition to other time, place, and manner rules discussed in the policy, the are some rules and reminders for engaging in protest activity safely:

• Avoid activity that infringes on the rights of others, such as blocking and preventing the movement or access of others.
• Follow the lawful instructions of UTEP administrators or police, such as staying behind barricades or dispersing from an area that is declared an unlawful assembly.
• Leave the area where others are engaging in illegal activities or acts of violence. Remaining in the area could be interpreted as your choosing to participate in the illegal activities or acts of violence, even if that is not your intent.
• Refrain from speech that incites others to commit acts of violence such as pushing, kicking, or spitting on others, destruction of property, or other unlawful actions.
• Consistent with other UTEP policy, the possession, use, or display of firearms, facsimile firearms, ammunition, explosives, or other items that could be used as weapons (including but not limited to sticks, poles, clubs, swords, shields, or rigid signs that can be used as a shield) unless authorized by federal, state, or local laws or ordinances or the express permission of UTEP is prohibited.

The term “hate speech” does not have a legal definition in the United States, but it often refers to speech that insults or demeans a person or group of people on the basis of attributes such as race, religion, ethnic origin, sexual orientation, disability or gender. While the university condemns speech of this nature, there is no “hate speech” exception to the First Amendment and it is only illegal if it falls under one of the attributes described above. In fact, on many occasions, the Supreme Court has explicitly held that prohibitions or punishments for hateful speech violate the First Amendment.

Just because there is a First Amendment right to say something does not mean that it should be said, however. The First Amendment protects a right to say hateful things, but as members of the UTEP community we strive to create a civil environment and culture in which people respect and listen to one another, rather than choosing to express hate toward others.

Speech, expression, or assembly that interferes with (1) teaching, research, administration, or other authorized activities; (2) free and unimpeded flow of pedestrian and vehicular traffic; or (3) signs, tables, exhibits, public assemblies, distribution of literature, or guest speakers acting under UTEP or UT System policies or the time, place, and manner rules discussed in these FAQs may be considered disruptive.

Defining interference as “disruptive” is necessarily contextual. For example, physical interference with others is nearly always disruptive in any context. Interfering with pedestrian or vehicular traffic depends on relation between the volume of traffic and size of the passageway left open. Disruptive noise is the most contextual of all, because it depends on the activity being disrupted. In making determinations of what is disruptive, UTEP administrators should not be influenced (and are expected not to be influenced) by the viewpoints of those claiming disruption or alleging disruption.

It is fundamental that individuals have a right to peacefully express their views and opinions, regardless of whether others agree or  disagree with those expressions. This includes the right of an individual to oppose the views or opinions of others, so long as the individual’s conduct is not unlawful and does not materially and substantially disrupt the functioning of UTEP. Adhering to the time, place, and manner restrictions discussed in UTEP’s Policies or University of Texas System policies will ensure the functions of UTEP are not materially and substantially disrupted.

Freedom of speech does not give someone the right to drown out words and speech of others; the right to engage in expressive activity would mean little if the audience was able to silence anyone with whom they disagreed. Once a society starts down the path of condoning such de facto censorship, it creates the culture and conditions in which anyone’s rights of speech can be compromised.

In keeping with the civil and respectful culture UTEP strives to create, individuals may not attempt to coerce, intimidate, or badger any other person into viewing, listening to, or accepting a copy of any communication. Individuals may not persist in requesting or demanding the attention of any other person after that person has attempted to walk away or has clearly refused to attend to the speaker’s communication.

No expressive activity may be conducted in a way that damages, defaces, marks, discolors, or alters in any way the property of UTEP and, no person may damage, deface, mark, discolor, alter, or interfere with any sign, table, or exhibit posted or displayed by another.

In immediately responding, individuals can use signs, tables, distribution of literature, or publicly assemble in any location as described in the policy without needing permission, so long as the activity does not materially and substantially disrupt the functioning of UTEP and otherwise adheres to the time, place, and manner rules discussed and applicable UTEP or University of Texas System policies.

Amplified sound, large banners or signs, or exhibits may be used only in areas and at times authorized by UTEP. Individuals cannot use amplified sound to disrupt amplified sound in the same location. UTEP will use reasonable efforts to timely review and make determinations on specific requests for use of amplified sound, large banners or signs, or exhibits.

Reservations of space in common outdoor areas can be made in advance in accordance with UTEP policies, but a space reservation is not required to engage in expressive activities in common outdoor areas. Registered student, faculty, and staff organizations, are encouraged to reserve the use of a room or space on University property for purposes permitted by the Regents’ Rules and University rules in accordance with UTEP Policies.

Yes, under certain circumstances. Use of amplified sound cannot materially and substantially disrupt the functions of UTEP, and for all common outdoor areas, reservations for use of amplified sound may be required. Individuals cannot use amplified sound to disrupt amplified sound in the same or immediately adjacent location.

Members of the public, students, faculty, staff, and recognized student, faculty, and staff organizations are expected to respect all quiet hours in and in the immediate area surrounding campus housing facilities (Miner Village, Miner Heights and Miner Canyon). More information for these quiet hours is available in the UTEP Resident Handbook.

UTEP may prescribe additional rules concerning scheduling, sound levels, location of speakers and direction they are pointed, and other rules necessary to facilitate the use of amplified sound, to mediate any conflict with university functions and any other nearby activities, and to manage environmental impact. University administrators are expected to prescribe such rules in a content- and viewpoint-neutral manner.

Members of the public, students, faculty, staff, and recognized student, faculty, and staff organizations can distribute literature in common outdoor areas. Registered student, faculty, and staff organizations may distribute literature in UTEP’s limited public forum in connection with the presentation of a guest speaker or other activities in a reserved room or space. The University’s rules on solicitation as found in the Handbook of Operating Procedure apply.

Exploring diverse points of view in the course of scholarly debate, discussion, and research is vital to UTEP’s academic mission. The freedom of faculty and students to explore topics related to their areas of scholarship and research is fundamental to UTEP’s mission and is encouraged by UTEP faculty. Sometimes these topics are contentious, but UTEP believes academic freedom is essential to fostering a better understanding of the world we share.

Yes. Individuals or groups of individuals engaging in activities that are materially and substantially disruptive to the normal operations of UTEP, including classes, sanctioned events and business activities, or who fail to comply with UTEP policies and applicable local, state, and federal laws may face immediate removal from the campus or other appropriate actions by UTEP officials or police. Appropriate action for members of the UTEP community may involve disciplinary action under relevant policies applicable to faculty, staff, or students.

UTEP balances a commitment to free speech and public safety. People who threaten or commit acts of violence are subject to arrest and prosecution by law enforcement, as well as discipline imposed by UTEP.

If you feel threatened, contact the UTEP Police Department at (915) 747-5611 or 911. Non-emergencies can be reported at (915) 747-5611.

You may report any complaint or concern about enforcement of UTEP’s rules related to expressive activities or violation of Texas Education Code Section 51.9315 to Institutional Compliance.

Below are applicable UTEP and University of Texas System rules and policies. If there is a conflict between an answer and UTEP or University of Texas System rules and policies, these rules and policies shall prevail.

UT System Regents’ Rules and Regulations:

RR 40501 Speech and Assembly

RR 30103 Standards of Conduct

RR 30104 Conflict of Interest, Conflict of Commitment, and Outside Activities

RR 31004 Rights and Responsibilities of Faculty Members

RR 80101 Category of Facilities and Authorized Users

RR 80103 Solicitation

RR 80106 Special Use Facilities

UTEP Handbook of Operating Procedures

Sect. 2 Chapter 2: Speech, Expression, and Assembly

Sect. 2 Chapter 1: Student Code of Conduct

Sect. 2 Chapter 3: Use of University Facilities

Sect. 2 Chapter 4: Student Organizations

Sect. 8 Chapter 8: Banners