First Amendment

No, University officials may protect the health and safety of individuals by imposing necessary public health measures, including the use of face coverings to slow the spread of a virus primarily transmitted through respiration. Learn more about the University’s administrative directive on face coverings.        

The University’s approach to messages on face coverings is no different than its approach to messages that might be included on other articles of clothing.  Thus, the same rules apply to speech displayed on a face covering as they would to speech displayed on shirts, hats, and other articles of clothing. Similarly, speech that would not be protected on a shirt or hat (e.g., speech that constitutes discriminatory harassment, speech that is obscene or defamatory, etc. [See FAQ #7]) is not protected if it is displayed on a face covering. 

As a public institution, UA must follow the First Amendment to the U.S. Constitution. The First Amendment allows certain restrictions on speech based largely on where the speech takes place. For governmental institutions like UA, there are four potential areas where speech can occur, and the restrictions vary depending on where the speech is occurring:

1. Traditional Public Forum – This is a place that by long tradition has been devoted to assembly and debate. The Supreme Court has held that a university is not a traditional public forum. In a traditional public forum, content-based restrictions on speech are prohibited unless those restrictions meet strict constitutional scrutiny.
2. Designated Public Forum - This is a place that UA has intentionally dedicated to expressive conduct. An example of this on campus is the mall. In a designated public forum, content-based restrictions on speech also are prohibited unless those restrictions meet strict constitutional scrutiny.
3. Limited Public Forum – This is a nonpublic forum that UA has intentionally opened to certain groups or to certain topics. An example of this on campus would be when UA opens a non-public forum, such as a classroom, to speech or activities related to defined subject matters for certain groups or certain topics, e.g., a symposium on water policy. In a limited public forum, content-based restrictions are permissible, so long as they are reasonable and viewpoint neutral.
4. Nonpublic Forum – This is any UA property that is not by tradition or designation a forum for public communication. This would include offices and rooms used for education, research, or other dedicated purposes. In a nonpublic forum, content-based restrictions are permissible as long as they are reasonable and not an effort to suppress expression merely because public officials oppose a speaker’s view.

Much of this is set out in UA’s Policy and Regulations Governing the Use of Campus, which incorporates First Amendment law by stating that UA may “regulate the time, place, and manner of free speech and expressive activities in order to prevent unreasonable interference with or disruption of its educational, research, outreach, and business functions, and normal or scheduled uses of [UA] property by the Campus Community, as well as to protect public health, safety, and welfare.”

Examples of time, place and manner restrictions in the Policy include: restrictions on nighttime activities; circulating petitions in non-public forums (i.e., spaces reserved for normal business, education, research, or other dedicated purposes); and the days and hours when sound amplification is permitted. Additionally, expressive activities may not impede pedestrian or vehicular traffic, disrupt or interfere with UA activities, or endanger public health, safety, or welfare. These restrictions are not based on the content or viewpoint of the speech, but on the time, place, and manner of the expressive activities.

No, because viewpoint discrimination, i.e., restricting speech based on the views of the speaker, is presumptively unconstitutional. In addition, Arizona Revised Statutes (A.R.S.) §15-1864 states, “University and community college campuses are open to any speaker whom a student, student group or faculty member has invited.”

The UA mall is a designated public forum, which means it is an area designated for expressive activity, although it is still subject to time, place, and manner restrictions as described in the Policy and Regulations Governing the Use of Campus. Some areas of the mall require reservations. There is also an area that does not require reservations for certain types of activities, such as circulating petitions, picketing, and spontaneous demonstrations. For more information, visit UA's Mall Use and Scheduling webpage or call (520) 626-2630.

In some circumstances, speech can constitute discriminatory harassment. Typically, this is speech that is severe, pervasive, and persistent while being directed at a specific person based on their membership in a protected category, as opposed to a group or category of people. Consult UA’s Nondiscrimination and Anti-harassment Policy for more information.

The First Amendment does not protect speech that is:

• Defamatory
• Obscene
• Discriminatory harassment against a particular person (as discussed above)
• Likely to incite imminent lawless action or violence (i.e., fighting words)
• Disruptive or not appropriate to the particular forum

Unless it falls into one of the categories not protected by the First Amendment, hate speech is protected. For example, an individual speaking in a designated public forum on campus can say hateful things about particular groups of people and the UA is not permitted to restrict the speech.

In Arizona, ARS §13-2911 sets out what conduct can constitute interference with or disruption of an educational institution, which includes, among other things, intentionally or knowingly threatening to cause physical injury to an employee or student, threatening to cause damage to an educational institution, interfering or denying the lawful use of the educational institution’s property, or refusing to obey a lawful order to leave as required under the statute.

• ABOR Policy 6-202, Academic Freedom

• UA Policy 7.01, Professional Conduct

• UA Policy 2.10, Political Activity

• ABOR Policy 6-905, Political Activity

• ABOR 1-119, Nondiscrimination and Anti-Harassment

• UA Policy HR-200E, Nondiscrimination and Anti-Harassment