T Nation

Free Speech

Lots of folks around here like to talk about how they support free speech – I wonder if they have thoughts on this article? It’s pretty easy to defend speech you agree with – more difficult – and more important – to defend speech with which you disagree:

http://www.boston.com/news/globe/editorial_opinion/oped/articles/2004/10/25/double_standard_on_free_speech/

Double standard on free speech?

By Cathy Young, Globe Columnist | October 25, 2004

LAST APRIL, the student paper at the University of Massachusetts-Amherst, The Daily Collegian, ran a column by graduate student Rene Gonzalez attacking Pat Tillman, the football player who had volunteered for the US Army and was killed in Afghanistan. Gonzalez called Tillman an “idiot” who was “acting out his macho, patriotic crap” and got what he deserved. An outcry ensued, on and off campus. The Collegian printed a statement defending Gonzalez’s free speech rights while distancing itself from his views; university president Jack M. Wilson publicly deplored the column but affirmed the writer’s right to free speech.

In my commentary on the brouhaha, I wondered if the people who stood up for free expression in this case would have been as generous toward, say, racist, sexist, or antigay expression. Now, we have an answer. In recent weeks, UMass has been up in arms about an alleged racist incident involving a humorous drawing of a grand wizard of the Ku Klux Klan.

The incident happened last March after the elections for the UMass Student Government Association, at a post-election party attended by nine association members. One of them, Patrick Higgins, had been labeled a “racist” during his unsuccessful run for SGA president because he opposed a proposal to reserve a quota of seats in the student Senate for members of ALANA, a group purporting to represent “African, Latino, Asian/Pacific Islander, and Native American” students. At the party, someone drew a caricature on a dry-erase board depicting Higgins as a “grand wizard” in a pointed hat and with a burning cross in his hand, with a speech bubble that said, “I love ALANA!”

Photos from the party were posted on a student’s website; last month, someone tipped off the campus community to their existence. There were forums and meetings to deplore an alleged climate of racism on the UMass campus. The university launched disciplinary proceedings against the students for “harassment.” While the charges also involved underage consumption of alcohol, that was clearly a tangential issue.

Vice Chancellor for Student Affairs Michael Gargano told The Daily Collegian that he was considering a variety of sanctions against the offenders – dubbed “the KKK9” – including removal from their posts in student government or 500 hours of community service. Still others demanded the students’ immediate expulsion from UMass.

In an e-mail communication last week, Gargano told me that the case was closed, having been “resolved within the parameters of the university Code of Student Conduct.” Citing student privacy, the university will not comment on the specific penalties issued to any of the students.

The Foundation for Individual Rights in Education, a nonpartisan group that defends civil liberties on college campuses, regards the university’s response as an appalling disregard for free speech. The foundation points out that the drawing of the “grand wizard” with his eyes crossed and his tongue hanging out could hardly be construed as an expression of sympathy for the Klan; rather, it was intended to spoof, perhaps in a not very sensitive or tasteful manner, the specious charges of racism made earlier against Higgins. (In the campus hysteria, the drawing was consistently mischaracterized, with its context and its satirical nature left out.)

In its statement, the foundation contrasted the persecution of the students in this case to the university’s refusal to take sanctions against Gonzalez. However, to be fair, Gonzalez did not exactly get off scot-free. After his screed against Pat Tillman got national exposure and became fodder for conservative websites and talk shows, he began to receive anonymous death threats. He tried to get the Collegian to remove his column from its website, and finally decided to leave the campus. New York Press columnist Mike Taibbi accused Wilson of colluding in this “pogrom” by denouncing Gonzalez’s column even while defending his “right to be wrong.”

There is today, in some quarters of our culture, a real and troubling intolerance toward speech that offends patriotic sentiment. Sometimes, it can turn into intimidation that punishes dissent. But at least it does not operate under the cover of official authority by university administrators wearing the mantle of liberal values. One may argue about whether Wilson’s defense of free speech in the Gonzalez case was strong enough. However, says Greg Lukianoff, director of legal and public advocacy for the foundation, “By at least defending the right of Rene Gonzalez UMass demonstrated that it understood the essentiality of free speech, especially on campus. By trying to punish Patrick Higgins and the other students in this case, however, UMass has shown that it will employ an unconscionable double standard.” Indeed.

Cathy Young is a contributing editor at Reason magazine. Her column appears regularly in the Globe.

The difference is probably that university officials considered Gonzalez only to be imprudent; his sentiments were not in and of themselves offensive to them, but were basely expressed. This is pure conjecture on my part. It is a natural sentiment of humans to hold in high regard their own opinions, and to seek out advantage in the dissemination thereof. And hell, why run a university if you can’t tell students what to think?

I’ll add that as a white, middle-class male, my support of the “KKK9’s” right to freedom of speech is utterly worthless, politically.

“Y’all don’t know what it’s like, being male, middle class and white.”

I’m all alone in my whiteboy pain.

I’m sorry, I deviated from the subject. Remarkable tangential precocity, I’m afraid. Back to the business at hand…

Sigh, people want absolutes. They want simple little rules that can be applied in all cases. Unfortunately, the devil is in the details.

There are differences between the situations, as the Nepster was pointing out. I’d imagine at the very bottom that students sign a code of conduct which prohibit certain types of activity or speech.

Now, given how you’ve waxed long and hard about how Bush is able to prohibit speech at his private events, to the point of ejecting people that wear the wrong type of message on their shirt, you can hardly claim that the University doesn’t have the same right to enforce it’s own rules of conduct on it’s students or staff, can you?

cough hypocrite

The difference is that the Bush events you talk about are " his private events". However the University is a public university supported by taxpayer dollars. As such it should not be allowed to suppress free speech. If this drawing was done by a tenured professor they would have done nothing other than decry the imagery. The students should be held to the same or even lower standard than the professors, after all the professors are public employees,older and supposedly more
mature. Not excusing the drawing. It was insensitive but does not sound like it was
intended to be racist.

[quote]vroom wrote:
Sigh, people want absolutes. They want simple little rules that can be applied in all cases. Unfortunately, the devil is in the details.

There are differences between the situations, as the Nepster was pointing out. I’d imagine at the very bottom that students sign a code of conduct which prohibit certain types of activity or speech.

Now, given how you’ve waxed long and hard about how Bush is able to prohibit speech at his private events, to the point of ejecting people that wear the wrong type of message on their shirt, you can hardly claim that the University doesn’t have the same right to enforce it’s own rules of conduct on it’s students or staff, can you?

cough hypocrite[/quote]

Ah, but I can, because that’s the law in the matter. Once again, vroom, the devil is in the details, as you say – unfortunately for you, it’s in the details of which you are woefully ignorant, as usual.

By the way, as I’ve said before, I love how you point out the obvious and try to sound profound, kind of like one of those Athenian sophists that used to annoy the real philosophers back in the Golden Age… “There are differences between the situations…” No shit Sherlock. You mean they aren’t exactly the same, and you’re going to try to differentiate them based on details you don’t know and law you don’t understand? Do tell.

By the way, I might be wrong here, and Nephorm, please correct me if I am, but given what Nephorm actually wrote I believe he was making sarcasm – of course, that would be lost on you if you didn’t grasp that it is absolutely prohibited for government officials to discriminate based on the content of political speech, even if you were dense enough to have missed the closing joke (“And hell, why run a university if you can’t tell students what to think?”)(By the way, Nephorm, as an aside, Ben Folds rocks!).

A state university is the government when it acts in its official capacity. The campus is not private. A public university cannot set restrictions on speech that the government cannot set. You can trust me, or you can go look up the United States Supreme Court precedent for yourself, but I’ll tell you that I took two seminars on 1st Amendment law in law school, so I suggest you trust me.

Even your “very bottom” would be illegal in a public university, as the government cannot require citizens to give up their Constitutional rights in order to enjoy a benefit that is otherwise broadly available. So, even without the details on the story, I can guarantee you there was no speech contract.

In fact, public schools have found themselves the subject of lawsuits for even implementing speech codes – and they’ve lost. Private schools are even loathe to institute speech codes, although they would be on safer legal ground, due to arguments about contractual rights to provide free speech due to principles enunciated in school materials and with faculty contracts.

What you don’t seem to get, vroom, is that there is a huge difference between government censorship and private citizens exercising their own free speech rights. Now, w/r/t the Bush campaign, I might think they were going a little bit far in terms of what I think is best, but I provided you with the reasoning as to why what they did was legal. In this case, what the university officials were attempting to do is blatantly illegal because they are acting in capacity as government – notice this is why they were trying to protect the details of the punishments they meted out. These will come out in FIRE’s lawsuit, and if they handed out punishments outside the bounds of the usual punishments for alcohol consumption (Note in the article I will publish below, they are claiming to punish alcohol consumption. They wouldn’t admit to punishing speech), then the administrators will lose and be punished (I hope with personal, large fines – I don’t want the university paying for their stupidity).

Anyway, here is UCLA First Amendment Professor Eugene Volokh, who is currently visiting at Stanford Law School, explaining, in a different context, the distinction between public and private that I was talking about above:

"Actually, as a professor of free speech, I rather like exercising my own free speech. Part of my free speech rights is the right to criticize others. I think the Guardian should have the legal right to print disgusting statements like the one it printed, or for that matter disgusting Nazism, Stalinism, racism, or whatever else. And then the rest of us should condemn it for what it’s doing.

Not everything that may be printed should be printed. That Hustler has the right to publish vile diatribes against Jerry Falwell doesn’t mean it’s good for the press to stoop to that level. Nor is there anything wrong with the public’s criticizing such speech. Public criticism is not the equivalent of government censorship – it’s the proper alternative to government censorship.

So I’m being quite consistent. My correspondent, on the other hand, doesn’t seem to be consistent. He seems to be implicitly saying that free speech demands that I not criticize the Guardian for what it publishes, or suggest that the Guardian shouldn’t publish it. And yet he’s criticizing me for what I publish, and is implicitly suggesting that I not publish it (since presumably I ought not be publishing what he sees as anti-free-speech and misguided criticisms)."

So, in this case, as I indicated in my opening post, I don’t agree with the cartoon, mostly because it’s tasteless (from what I could tell, it’s obviously satire). However, this kid had every right to make it and to publish it, and the university is disallowed from stomping on the 1st Amendment to try to impose its own values on the speech of its students.

Here’s another article on the subject:

http://www.thefire.org/offsite/data/BostonHerald-UMass_failing_constitutional_test.htm

UMass failing constitutional test
By David French/ As you were saying?
Saturday, October 16, 2004

For years, debates have raged about the state of higher education. To critics, campuses have been captured by oppressive political correctness - an ideology that permits only one point of view about the critical issues of the day. Defenders of the contemporary university establishment argue that the problem is exaggerated or that the criticism is itself repressive, designed to silence the ``progressive’’ voice.

 Occasionally, however, a university administration acts with such breathtaking audacity, such brazen double standards, that the debate - at least for that campus - is settled. Civil liberties, democratic ideals and the rule of law take a back seat to an unreasonable and hyper-politicized ideology. Political favoritism trumps consistency, common sense and fairness, and even innocent students must be sacrificed on the altar of an Orwellian definition of ``tolerance.''

 The University of Massachusetts at Amherst is in the grips of just such a scandal. In March, during a heated race for the student presidency, members of a minority student organization, ALANA, accused candidate Patrick Higgins of racism. His crime? He opposed a mandatory set-aside program that would guarantee ALANA seats in the student government. Never mind that the university's own attorneys later determined that such a set-aside was unconstitutional; it was still ``racist'' to oppose the program.

 On the eve of the election, Higgins and eight other students gathered in the student government offices for a party. Alcohol was apparently served, and one of the party-goers drew a caricature of the grand wizard of the Ku Klux Klan. The purpose of the caricature was to satirize ALANA's racism allegation by drawing Higgins in a Klan robe. The satire was obvious. The grand wizard was drawn with his eyes crossed and his tongue hanging out - hardly the pose of a person the students seek to emulate.

 Months after the party, pictures of the dry-erase caricature circulated, and ALANA reacted with outrage. Students demonstrated, demanding sanctions (including criminal charges and expulsion) against the party-goers. The administration's response was swift and decisive.

 And what was that response? Recall that earlier this year, UMass graduate student Rene Gonzalez celebrated the death of Patrick Tillman, the NFL player turned Army ranger, writing that ``this was a GI Joe guy who got what was coming to him.'' Gonzalez's column in the UMass newspaper outraged readers across the country.

 In an admirable demonstration of the axiom that the best answer to bad speech is more speech, UMass System President Jack Wilson denounced the column as ``a disgusting, arrogant and intellectually immature attack on a human being who died in service to his country.'' However, Wilson affirmed Gonzalez's right to free speech, stating, ``While I recognize Rene Gonzalez's right of free speech, I must also assert my right of free speech to criticize what he said.''

 Given this response, one would think that UMass' reaction to the dry-erase caricature would be similar. It is difficult to argue that an unflattering, satirical drawing of a Klansman is as offensive as the blatant celebration of U.S. casualties during wartime. UMass had the right to criticize the expression but had an obligation to defend the student's First Amendment rights.

 Instead, UMass Vice Chancellor Michael Gargano declared, ``I have the authority to remove these people from student government office . . . I could give them 500 hours of community service, have them conduct an open-forum discussion; I have a variety of sanctions at my disposal. I'm not ruling out dismissal.''

 Alleging ``harassment,'' UMass has sought to impose penalties that far outweigh typical sanctions for first-time alcohol offenders.

 UMass now faces a critical test, one that too many schools have failed. It can defend the First Amendment and take a decisive stand for free expression, or it can become Exhibit A of the contempt for basic student rights and ferocious double standards of the modern American academy.

( David French is president of the Philadelphia-based Foundation for Individual Rights in Education. As You Were Saying is a Herald feature. We invite readers to contribute pieces of no more than 600 words. Mail to the Boston Herald, P.O. Box 2096, Boston, )

BTW, here’s the offending caricature:

http://www.thefire.org/images/grandwizard.jpg

cowpaddi right again…

vroom just got owned. I think its time for our little canadian friend to apologize to BB for his little insinuation, especially when his argument got so easily thrown back in his face.

Bilt,

Putting together a nice post doesn’t make a thing so.

BB,

I am familiar with the concept that you cannot “sign away your rights”, but at the same time, we “do so” all the time when we enter into contracts.

Most Universities have and apply a code of conduct. Strange how that is illegal in your fantasy world. You and I may not like that it is applied selectively, but that doesn’t change the fact that it exists.

Your long winded posts buttressed by nice sounding articles by published persona supporting your viewpoint doesn’t make them correct either.

I am not in favor of silencing students, in case you somehow think I suddenly am. A University may receive public funding, but that does not mean that it is a government body. Shall we go down the ranks of Universities and discuss their codes of conduct and the enforceability thereof?

Again, you and I may both not like it, and you might be a hypocrite, but that’s just the way it is.

[quote]vroom wrote:
Bilt,

Putting together a nice post doesn’t make a thing so.

BB,

I am familiar with the concept that you cannot “sign away your rights”, but at the same time, we “do so” all the time when we enter into contracts.

Most Universities have and apply a code of conduct. Strange how that is illegal in your fantasy world. You and I may not like that it is applied selectively, but that doesn’t change the fact that it exists.

Your long winded posts buttressed by nice sounding articles by published persona supporting your viewpoint doesn’t make them correct either.

I am not in favor of silencing students, in case you somehow think I suddenly am. A University may receive public funding, but that does not mean that it is a government body. Shall we go down the ranks of Universities and discuss their codes of conduct and the enforceability thereof?

Again, you and I may both not like it, and you might be a hypocrite, but that’s just the way it is.[/quote]

vroom:

You know, the nice thing about the internet is that it allows one to swim in a sea of information. Unfortunately, sometimes while at sea you don’t realize just how out of your depth you are, which is where you find yourself.

Going back to your previous post, the devil is in the details – those details are the specific facts, which you misread, and the specific law, of which you are ignorant. More on that in a bit

However, let’s get to your sophist statement on authority: Citing to authority doesn’t make it so. Once again, your statement is “full of sound and fury, yet signif[ies] nothing.”

See, when you critique the backup citations, you generally argue against what they say. Simply saying “Yeah, they said it, but it doesn’t make it true” doesn’t amount to much of a critique. This is especially true when one examines the orders or magnitude by which your own knowledge lags behind the authority quoted.

In the order of knowledge on this topic, which is the body of law governing 1st Amendment rights in the United States, Professor Volokh knows a whole lot more than I do, and I know a whole lot more than you do. You’re at a natural disadvantage against an American when you are arguing about American Constitutional law – you’re at a huge disadvantage arguing against an American lawyer when arguing American Constitutional law – and I cannot begin to tell you how out of your depth you are if you are critiquing an American law professor whose specialty is 1st Amendment law on 1st Amendment law.

Now, lets get back to those specific laws and facts. You write that simply accepting government funds doesn’t make it a government body. And you are correct. Unfortunately for you, this is irrelevant here. University of Massachusetts, Amherst, is a public university run by the government of Massachusetts. The First Amendment has been read as applying to state governments as well as to the federal government via the operation of the 14th Amendment, much like the rest of the Bill of Rights. Thus, state-run public universities are the government, as far as the 1st Amendment is concerned – as I said, you can go look up the legal precedents for yourself, but I suggest you trust me.

You write, “you can sign away your rights”, which, again, is right as a generality but is irrelevant in this specific situation. It is, so to speak, a “simple little rule.” Certain rights, such as the right to not be a slave, cannot be signed away. In this particular case, the government cannot require a citizen to sign away the right to free speech in order to gain access to a governmental benefit that is generally available – particularly, the state university cannot require students to sign away their 1st Amendment rights as a pre-condition to their enrollment. Thus, I can guarantee you that no such contract exists.

Your next irrelevant statement is that most universities have an apply a code of conduct. This is, of course, correct – and, as is usual for you, your “simple little rule” is again irrelevant. Of course universities have codes of conduct, but those codes of conduct must operate within the system of Constitutional rights. Do you think that if a public university forbade its students from holding John Kerry signs on campus and put that restriction in its code of conduct that it would suddenly be OK because “[m]ost universities have and apply [a] code[s] of conduct”?

That universities can and do have codes of conduct does not mean that a university can include in that code of conduct illegal restrictions on students’ exercise of their Constitutional rights. Just as an FYI, the most verboten kind of discrimination under free-speech law is discrimination against political speech based on the viewpoint espoused in that speech. That’s precisely what is being alleged in this case. And it’s completely unsurprising. I believe nephorm was only half jesting above when he made the joke about the point of running a school is telling students what to think. Many administrators are petty tyrants who would like nothing more than to control discussion and favor their own viewpoints. Luckily, in America, if not in Canada, this is not allowed.

As for your invitation, by all means, let’s do that. Why don’t you go look into the codes of conduct at public universities and see what you find. Better yet, why don’t you look at the speech codes that various public universities, supposedly bastions of free debate and expression, have attempted to enact and that have been struck down by right-thinking judges who respect the 1st Amendment. Start with UC Berkeley and U of Michigan.

So, what’s the bottom line? As usual, for all your poofy phraseology pointing out the irrelevant and the obvious and thoughtfully posed generalities, you don’t know what you’re talking about.

The other bottom line – the legal analysis of the above situation – is that public universities may not infringe on their students’ 1st Amendment rights of freedom of expression, and most especially they are not allowed to discriminate against political speech based on the content of that speech.

Great, then I’ll expect to see the students punishment reversed right away! That would indeed be good news.

By the way, I can’t imagine you think that I’m against letting students have their say. It certainly sounds like you think so.

Regardless, I do understand the argument that you are making, even if you don’t think that I do. There are conditions under which peoples rights are naturally adjusted all the time.

You have the right to free speech, but express it by refusing to wear appropriate business attire and you may find yourself out of your job. If this happens while you are wearing a pro-Bush t-shirt it would certainly appear to be repression of political expression wouldn’t it? I never signed those rights away! I can’t sign those rights away! How could this happen?

I’d imagine the above could happen even if you worked directly for a government body. Wow, even if perhaps you worked for a University. Hey, what do you know, maybe that might be referred to as a condition on employment. It seems to conflict with an interpretation of all of us having all of our rights at all times.

Now, it is pretty obvious that many conservative thinking people are pissed off at intrepretive issues. Especially concerning race and racism and any attempts that are taken to ameliorate the problem via government means. It appears this issue may be a way to advance that cause – to further remove the ability to make any decisions on the basis of race or race relations.

Higher education is a privilege, not a right. I don’t know what the code of conduct is at each and every university, but how similar are they to a set of conditions of employment/attendance? What obligation does the University have to promote an environment conducive to education and what powers does it have to address such issues. Could the University have rules in it’s code of conduct that deal with the spreading of hatred and racial tensions – based on the very fact that the University wants to be freely accessible to all groups of people?

You’ve gone apeshit with glee at being able to prove me stupid and out of my depth, but I haven’t seen you or your brethren address the issues in the last paragraph adequately as of yet. I’d be happy if you did. You see, what dumb little me thought was that we were dealing with rights and freedoms on several different levels.

Please educate me oh great and wondrous blowhard. And, if you might, please understand, I’ll be happy if racial tensions are relieved or if freedom of speech is preserved or particularly if both occur. So, fire away, all outcomes are in my favor!

[quote]vroom wrote:
Great, then I’ll expect to see the students punishment reversed right away! That would indeed be good news.

By the way, I can’t imagine you think that I’m against letting students have their say. It certainly sounds like you think so.

Regardless, I do understand the argument that you are making, even if you don’t think that I do. There are conditions under which peoples rights are naturally adjusted all the time.

You have the right to free speech, but express it by refusing to wear appropriate business attire and you may find yourself out of your job. If this happens while you are wearing a pro-Bush t-shirt it would certainly appear to be repression of political expression wouldn’t it? I never signed those rights away! I can’t sign those rights away! How could this happen?

I’d imagine the above could happen even if you worked directly for a government body. Wow, even if perhaps you worked for a University. Hey, what do you know, maybe that might be referred to as a condition on employment. It seems to conflict with an interpretation of all of us having all of our rights at all times.
[/quote]

No, you may think you understand the issue, but you really [through no fault of your own, really] don’t – you fail to grasp the complexities of the issue – and this area of the law can be very complex.

A common theme of our discussions on 1st Amendment issues, which I am guessing stems from differences in the Canadian system, is your not grasping the government vs. private distinction. In the example above, you have no free-speech rights vis-a-vis your employer, unless you have them contractually, or unless your employer is the government.

Interestingly, there is a different set of criteria for reviewing actions of the government when it is acting as a purchaser or an employer versus when it is acting as a sovereign. The government gets more benefit-of-the-doubt under the employer/purchaser standard than under the sovereign standard. This distinction becomes even more difficult when one approaches some of your examples below, such as the government acting as employer and enforcing a dress code.

Unfortunately for your position and argument, the standard in the case of the university – especially in the case of the university vis-a-vis the students, for whom it is passing rules, is one of the government as sovereign.

The government would be well within its rights, under the government-as-employer standard, to fire an employee for wearing a Bush t-shirt in violation of the dress code. However, if the fired employee demonstrated that the same government entity that fired him gave a warning to someone for wearing a John Kerry t-shirt, that would be disallowed.

The government is strictly prohibited, under either lenient (employer/purchaser) or strict (sovereign) standards from engaging in viewpoint-based discrimination. Such discrimination can be evidenced through different penalties for similar infractions.

Relating that to the case cited in the first and second articles above, this is why they want details on the punishment meted out for violating the alcohol rules – if they are harsher than would normally apply for a similar infraction, the court will infer the school is engaging in viewpoint-based discrimination.

It’s not an interpretation issue. It’s a matter of the core protection of freedom of speech. The core protection, as I explained above, is to be free from government coercion as a consequence for the political viewpoints you espouse. There are limited exceptions to this in the case of advocating crime [Such as advocating the assassination of the President] as a political view, but basically that’s it in a nutshell.

The government has many tools at its disposal to ameliorate any racism problem it perceives. One of those tools is not repression of a racist viewpoint, be it published, spoken, caricatured or representated via abstract art.

Higher education is a privilege. On the same reasoning, so is the granting of a license to practice medicine, or a permit to construct a house. Yet in none of those cases can the government require people to sign away their 1st Amendment rights in order to receive them. In a very limited exception, such as providing a government job to a nuclear engineer or employment in the CIA, the government can establish limits on what the employee can communicate.

However, that very narrow exception for national security purposes is not relevant to this analysis, and would never encompass a person’s political opinions on some issue like gays in the military or racism (although, if the person was a Communist committed to the overthrow of our Constitutional republic, that would repress those political views). For our purposes, this is irrelevant, but you might find it interesting.

This is an interesting area – basically conflict of laws solves it though. The First Amendment is in the Constutition, and Constutitional rights trump other obligations of the university from statutes or other sources.

What this means is that the public university is limited in the ways it can effect its policies to promote free accessibility and learning – it cannot do so in a manner that discriminates against a certain political viewpoint. Another way to say this is that the public university must enact viewpoint-neutral mechanisms and rules, and enforce them in a viewpoint-neutral manner.

The classic example of a viewpoint-neutral regulation on political expression is a statute that bans all persons from extolling the virtues of their preferred candidate (or the vices of their non-preferred candidate) on loud-speakers in residential areas after a certain time, say, 6 PM. The city must then enforce such a regulation equally against both sides --if it gave warnings to Democrats but jailed Republicans, it would be de facto viewpoint-based discrimination in the application of a facially viewpoint-neutral regulation.

So, to get a specific example for you, if the university thinks confederate flags are a problem on campus and promote fights, they could ban students from flying any flags out their windows, based on the police power of the state – but the public university could not ban only Nazi flags, only Confederate flags, or only U.N. flags.

It may be harder for the university to meet its goals that way, but that’s the burden of a Constitution that grants inalienable rights by specifically limiting governmental power in certain areas.

See above.

See above again. If you come up with a really good solution, please apply for a job as an administrator at a public university.

This has become quite the free-floating post. The link between these events and freedom of speech is a bit obscure, but here are a few points that I’d like to introduce:

  1. When did colleges become so damned punishment-happy? College students are supposed to be radical as well as thick-skinned. I know this is O/T; that’s why I listed it first–to get it out of the way.

  2. Freedom of speech should be protected so long as other rights are upheld. Denouncing Tillman’s service as macho and arrogant? Distasteful and unpopular–certainly. Unconstitutional–not in the least. While I certainly disagree with this statement, it is protected by the law. We cannot prosecute verbal statements that are merely unpopular or without tact.

  3. The KKK incident is a bit different. This could actually qualify as being slanderous. With the previous incident, there was not a character defamation. However, in wrongly associating (and by that, I mean associating one with something of which he is actually not associated) an individual with some organization that is generally regarded as having criminal tendencies, there is defamation. Simply labeling an individual as arrogant, macho, etc. is a mere opinion.

I know this may seem like a bit of scatter-brained post, but those are simply the observations I made in response to the original topic.

~Terumo

Good thoughts Terumo. You’ve outlined another avenue of exploration concerning a legitimate rationale for action on the behalf of the University.

Again, I will state, I’d prefer students to be allowed to do and say just about any damned thing they like, to the exclusion of illegality or the inappropriate interference in the rights of others.

I’m also curious if the University is able to codify restrictions against inappropriate race issues in general, or is this too specific an item. If flags of all types can be banned, which bans a class or type of expression, cannot hate speech targeting racial issues be banned – as long as the rules are applied evenly to all. It is perhaps another class of expression.

If the University can blanket ban certain types of behavior, and some types of speech (such as flags) violate those rules and some don’t, then it will appear as if the rules are not being applied evenly while in fact they are.

This hinges on two points:

  • Can the University ban a class or type of speech?

  • Has the University codified this and applied it consistently?

Alternatively, there is Terumo’s question of legality. Codes of conduct often contain sanctions against various types of illegal or disruptive behavior after all.

Anyhow, Boston, I did enjoy reading your well thought out and well articulated post. I’m not completely convinced as of yet, but I certainly don’t mind an opportunity to learn something. Please feel free to continue to enlighten me.

Ah, a voice of reason from the great state of Tennessee… I went to Vanderbilt for law school, but I’ve only been back once since graduating in 02 – in which part do you reside?

Anyway, on to the very esoteric discussion of the 1st Amendment.

[quote]Terumo wrote:
This has become quite the free-floating post. The link between these events and freedom of speech is a bit obscure, but here are a few points that I’d like to introduce:

  1. When did colleges become so damned punishment-happy? College students are supposed to be radical as well as thick-skinned. I know this is O/T; that’s why I listed it first–to get it out of the way.[/quote]

It’s been going on for awhile – I think a lot of schools tried to promote speech codes going back to the 80s – basically about the same time as most people first heard the term “politically correct.”

I don’t doubt a lot of the people had good motives, such as the ones mentioned by vroom above. Yet commitment to our Constitutional government and to the civil liberty of free speech provided by the 1st Amendment requires that those good motives be subordinated. Many people can come up with good reasons why certain speech with which they disagree should be regulated, but they aren’t good enough to overcome the Constitution.

Precisely – except that this is applicable below too.

[quote]3) The KKK incident is a bit different. This could actually qualify as being slanderous. With the previous incident, there was not a character defamation. However, in wrongly associating (and by that, I mean associating one with something of which he is actually not associated) an individual with some organization that is generally regarded as having criminal tendencies, there is defamation. Simply labeling an individual as arrogant, macho, etc. is a mere opinion.

I know this may seem like a bit of scatter-brained post, but those are simply the observations I made in response to the original topic.

~Terumo[/quote]

I don’t think the facts of the story go with what you said here – I believe the caricature was of one of the students BEING PUNISHED.

That said, due to the restrictions of the 1st Amendment’s protections, different people are afforded differing levels of protection by common law and statutory laws concerning slander and libel. This goes back to New York Times v. Sullivan, in which an Alabama elected official attempted to sue the New York Times for publishing some stories about him during the struggles for civil rights in the South.

Basically, it is de facto impossible for a political figure to win a slander/libel case. I’m going from memory, but I believe a political figure must demonstrate that the person who made the statement knew with certainty that the statement was false, and made the statement with the intent to harm. As a practical matter, this is an impossible standard to prove without a confession.

Public figures – read that as celebrities, basically – have to prove a lesser standard – I believe gross negligence with respect to the truth of the statement and reckless disregard for whether it would harm the person.

Regular folks like you and me get the regular protection from slander and libel laws.

Thus, if, for example, the caricature above were of the university president, the real fight would be whether he would be considered a public official (political figure) or a regular person – my money would be on finding him a political figure, but that would be a question to be decided during the trial. That finding would basically decide the outcome of the case.

[quote]vroom wrote:
Good thoughts Terumo. You’ve outlined another avenue of exploration concerning a legitimate rationale for action on the behalf of the University.

Again, I will state, I’d prefer students to be allowed to do and say just about any damned thing they like, to the exclusion of illegality or the inappropriate interference in the rights of others.[/quote]

Good. That’s my default position as well. I think the nature of your objections comes to how you want to define the rights of others. When two rights come into conflict, one must necessarily decide which takes precedence. Because the right to free speech is an enumerated Constitutional right [and because the government has not collectively decided to eviscerate it over the years via judicial interpretations, regulations and laws], it takes precedence in most cases.

As soon as you enter into the realm of targeting the message of the speech, you are entering into an area of Constitutional prohibition. In your hypothetical above, you’re not banning all speech – you’re banning all “hate speech targeting racial issues.” That is viewpoint based discrimination.

There’s a famous USSC case that protected the right of the KKK to have a parade through the streets of a town in Ohio (I think it was Cleveland but I forget). If the city were to ban all parades, that would be fine – however, it cannot ban all parades that promote hateful racial attitudes.

Basically, as I said above, the restriction must be viewpoint neutral, both on its face and in its application.

[quote] If the University can blanket ban certain types of behavior, and some types of speech (such as flags) violate those rules and some don’t, then it will appear as if the rules are not being applied evenly while in fact they are.

This hinges on two points:

  • Can the University ban a class or type of speech? [/quote]

It can ban a whole class of “speech,” but not a subsection within that class due to its point of view.

For instance, the university can ban streaking, even though some might consider naked protesting to be political speech. But it can’t ban streaking only at white-power rallies, or streaking only for the purpose of protesting fur (or something similar).

It can restrict certain expression to certain areas – thus, you see the government making zones for protestors at large events (this power is inherent in the state police power, which is basically a general power)(Also note, however, that courts have required the zones to be close enough to the event as possible – this is a whole nother area of the law – basically, in cases in which the government is allowed to burden speech, it must do so in the least restrictive manner in which the restriction can reasonably be accomplished).

[quote]
So, theoretically,

  • Has the University codified this and applied it consistently?[/quote]

Remember, the key is a viewpoint-neutral restriction applied in a viewpoint-neutral manner.

Yes, they can and do contain restrictions of various illegal and/or destructive behavior. This is why student protestors who trespass in administration offices or block traffic can be prosecuted for breaking those laws, irrespective of what they were attempting to communicate by doing so.

Again though, I can’t emphasize this enough: The key is that the restrictions must not discriminate against the viewpoint in the speech. Thus if someone wants to walk around holding a sign that says “Women are inferior” or “White men are worthless” and there is no rule of general application restricting the time, place or manner of speech there, you cannot punish them for expressing those sentiments.

[quote]

Anyhow, Boston, I did enjoy reading your well thought out and well articulated post. I’m not completely convinced as of yet, but I certainly don’t mind an opportunity to learn something. Please feel free to continue to enlighten me.[/quote]

No problem. I get a little touchy when I’m called a hypocrite, but generally I like having discussions.

My specialty is political theory, not Constitutional Law (or any other sort of law, for that matter), so I’ll leave the argument to BB, who has done an exemplary job of explaining the issues.

As far as the question of my original post(s), if it is still relevant, I was being sarcastic. I have a special little bitter spot in my heart for speech squashing on campus (University of Maryland was at one point ranked the most suppressive of public universities in the union). Of course, they (usually) were view-neutral in their rules. The main exception was hate-speech… which is incredibly stupid.

Essentially, you were allowed to say whatever you wanted, though a staff member might tell you that it was inappropriate. However, here’s where it got tricky: suppose I wrote on your door with permanent marker. Suppose I wrote “so and so is stupid.” Now, that would be vandalism. I’ve caused permanent damage to the “real property of UMD.” Suppose I intead wrote “so and so is a stupid $$$$,” where $$$$ is the slur of your choice (relating to race, religion, ethnicity, or disability). Now it’s a hate crime, in addition to being vandalism. Isn’t that nice? Of course, that isn’t the policy of UMD, it’s the policy of the state - though the university certainly embraced it with fervor.

nephorm:

That is an area in which the protections of the 1st Amendment have been allowed to erode by the USSC. The reasoning is basically that the legislature is punishing a criminal act, and they can decide that one criminal act is more destructive than another.

In your example, vandalism would be the criminal act. A lot of 1st Amendment scholars don’t agree with this, but it is currently legal under USSC precedent to have a separate category of “hate crimes.”

However, as yet they are still not allowed to punish “hate speech” which is not otherwise criminal.

BTW, nephorm,

I actually wrote a 60-page paper for my 1st Amendment seminar, back in 2001, on the intrusions on the 1st Amendment’s Free Speech protections that are being effected under harassment and hate-crimes laws. I wouldn’t wish anyone the mind-glazing fun of reading it, but I take this stuff fairly seriously.

A fairly good book on that topic is “You Can’t Say That!” by George Mason University Constitutional Law Professor David Bernstein, which, coincidentally, just came out yesterday in paperback.