Key Takeaways
- Public universities are part of the government, so the First Amendment bars them from banning speech simply because it is hateful, racist, or offensive.
- Schools may act against harassment that is targeted and severe enough to deny a student equal access to education, which federal civil rights laws require them to address.
- A public university cannot ban controversial speakers because of their views, but it can respond with its own counter speech and support for students.
What counts as hate speech, and can a public university keep it off campus? As with many First Amendment questions, the answer is more complicated than it first appears.
In this TalksOnLaw Brief, Lee Rowland, Executive Director of the National Coalition Against Censorship and a longtime First Amendment litigator, explains how the Constitution applies to hateful speech at public colleges and universities, and what schools can do in response.
Offensive, but Protected
People often use "hate speech" to mean speech that demeans others, often on the basis of race or sex or other characteristics they cannot change. Rowland explains that under the First Amendment, that language, however disgusting or offensive, is still protected, and she makes clear she finds it offensive herself. Public universities are arms of the government, run by government officials. So when a public university tells students what they can and cannot say, it is acting as the government, and First Amendment protections apply. Courts have generally held that political opinions, no matter how hateful, are as protected on the quad as on a public street or sidewalk.
The Harassment Asterisk
There is one asterisk, Rowland notes. Federal law requires universities to ensure a learning environment open to all students regardless of race or sex. But federal statutes cannot override the Constitution. The cases in which courts have allowed, or required, a university to stop speech involve expression so specific and targeted at an individual student that the student's educational opportunities are directly and personally curtailed.
The Berkeley Example
Rowland points to the University of California, Berkeley, the birthplace of the Free Speech Movement, where visits by provocateurs such as Ann Coulter and Milo Yiannopoulos sparked mass controversy and required costly security. Could Berkeley simply ban controversial speakers? No, she says. As a government institution, it must follow the First Amendment. What it can do is engage in its own inclusive counter speech, which she calls part of the beautiful but messy cacophony the First Amendment requires.
What to Know Now
The constitutional rule remains in place: the Supreme Court has repeatedly protected offensive expression, including in Snyder v. Phelps (2011) and Matal v. Tam (2017), which rejected a hate speech exception to the First Amendment. The standard for peer harassment under federal civil rights law, from Davis v. Monroe County Board of Education, covers conduct so severe, pervasive, and objectively offensive that it denies equal access to education.
Since 2023, campus protests over the war in Gaza have put this line under intense pressure. Federal agencies opened many Title VI investigations into antisemitic and other harassment, and in 2025 the federal government froze billions in research funding at Harvard and other universities. A federal judge ruled in September 2025 that the Harvard cuts violated the First Amendment and Title VI procedures, and the government's appeal is pending in the First Circuit. Supporters of tougher enforcement argue universities must protect students from harassment; free speech advocates warn against punishing protected political speech. The distinction Rowland draws, between offensive ideas and targeted harassment, sits at the center of that debate.
