The War for Free Speech on Campus
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances” (Amendment 1, U.S. Constitution).
A spirited debate is taking place on many college campuses across the nation concerning the constitutionally protected right of the freedom of speech. The nation’s colleges and universities are, in theory, vital institutions in the augmentation and nourishment of the critical mind, honest inquiry, individual rights, and the core values of liberty, legal equality, and dignity. However, in recent years many students argue that universities have become the enemies of those qualities and pursuits. Arguing that the administrators of their schools are curbing their rights to expression and speech. That instead of “fostering the idea that academics come first by cultivating diversity of thought and culture” they are taking away constitutional rights and forcing pre-determined opinions on them. Out of this debate rises the question of how much control should be allotted to school administrators in monitoring the actions of their students, and when does a school “cross the line” and begin to infringe on a students constitutional rights. The answer lies in a balancing of the legitimate educational objectives, the need for school discipline of administrators, and the First Amendment values that guarantee the free speech rights of students.
In Protecting Freedom of Expression on the Campus, former Harvard President Derek Bok provides for us a classic confrontation between students arguing for the freedom of speech and an administration faced with a decision between the first amendments and appeasing the offended. He relates:
“In recent weeks, such a controversy has sprung up at Harvard. Two students hung Confederate flags in public view, upsetting students who equate the Confederacy with slavery. A third student tried to protest the flags by displaying a swastika. These incidents have provoked much discussion and disagreement. Some students-especially minorities-have urged that Harvard require the removal of symbolic displays, arguing that they are insensitive and unwise because any satisfaction they give to the students who create them is far outweighed by the discomfort they cause to many others.”
The Harvard administration is now presented with a few options. They can follow what law professor of the University of Missouri-Kansas City, Douglas Linder calls on his Exploring First Amendment Law web page, the “Absolution Approach.” This makes use of the U.S. Supreme Court Justice Hugo LaFayette Black’s statement in the Supreme Court case Cohen vs. California as a reference point. Black’s ruling would suggest that the flags be taken down. Justice Black said that “no law is no law,” and that there is a difference between “conduct” and “speech.” The displaying, but not speaking, of words or symbols is “conduct” and therefore not protected by the First Amendment. They could even demand the removal of the flags under the protection of Supreme Court cases Bethel and Hazelwood. In Bethel, the Court upheld the right of Washington State High School administrators to discipline a student for giving a campaign speech at a school assembly that was loaded with sexual innuendo. The Court stated, “Administrators ought to have the discretion to punish student speech that violates school rules and has the tendency to interfere with legitimate educational and disciplinary objectives.” In Hazelwood, the Court relied to a great extent on Bethel in sustaining the right of school administrators to censor a student-edited school paper that concerned sensitive subjects such as student pregnancy and other topics that the court cited “an invasion of privacy.” In effect, these two cases grant school administrators a far greater ability to restrict the speech of their students than the government has in restricting the speech of the general public, and the Harvard administration could demand the removal of the flags, as “âÂ?¦the tendency to interfere with legitimate educational and disciplinary objectives” can be argued.
Of course, if the Harvard administrators were to do this, the student’s that hung the flags would most assuredly shoot back with Tinker vs. Des Moines, where the court expressively states that “students do not shed their constitutional rights when they enter the schoolhouse door.” Finding that the First Amendment protected the right of high school students to wear black armbands in a public high school, as a form of protest against the Vietnam War. Ruling that this symbolic speech was “closely akin to pure speech” and could only be barred by school administrators if they could show that it would cause a substantial disruption of the school’s educational mission. The students would assuredly argue that the displaying of the flags is “closely akin to pure speech” and therefore protected under the First Amendment.
At this point, the administration would probably bring what professor Linder calls the “Categorical Approach” to bear. This approach is based on the Supreme Court case of Chaplinsky v. New Hampshire, which states that intimidating speech directed towards a certain group of people which invites confrontation amounts to “fighting words,” and that the person engaging in such speech can be punished if “âÂ?¦by their very utterance inflict injury or tend to incite an immediate breach of the peace.” The administration could say that the displaying of a Confederate flag could (and that of the swastika definitely) incite an immediate breach of peace. Certain categories of speech (i.e. obscenity and “hate words” or “fighting words”) are seen as falling entirely outside of First Amendment protection.
But of course, our students at Harvard would not give in so easily. If they did, they wouldn’t be at Harvard in the first place. They would cite R.A.V. v. St. Paul, which was a challenge to a St. Paul ordinance punishing the placement of certain symbols that were “likely to arouse anger, alarm, or resentment on the basis of race, religion, or gender.” Robert Victoria, a teenager, had been convicted of violating the ordinance after burning a cross on the yard of a black family. The Court, in an opinion by Justice Scalia, reversed R. A. V.’s conviction on the ground that the ordinance unconstitutionally criminalized some hurtful expression (specifically those aimed at racial and religious minorities) and not other hurtful expressions (those aimed at other unprotected groups) based on the political preferences of legislators. Scalia makes clear that “fighting words” is not, as Chaplinsky had suggested, a category of speech that is wholly outside of First Amendment protection.
And so the Harvard administrators find themselves right back where they started. They can choose to demand the removal of the flags; they have ample support from previous Supreme Court Cases to do so. But that would likely cause a demonstration and a demand by the students for their First Amendment rights. The administrators could let the flags hang, because there are also ample court cases to support letting the students display the flags. However, Bok, in his essay, provides an appealing solution regarding the “constitutional” event. He argues that displaying the flags falls within the rights of the students as defined in the First Amendment, and that instead of requiring the students to remove the flags, the best course of action would be to ignore them. Bok continues saying, “âÂ?¦students would then would have little reason to create such displays and would soon abandon them.” This would appease both groups. Those that hang such symbols could continue, and those that find offense in such symbols could choose to ignore them and according to Bok would find that such acts would soon be abandoned. Of course if the students hanging the flags didn’t abandon “such displays” what should the administrators do then? Bok provides the answer to that also by adding, “If ignoring such acts is not possible, the wisest course would be to talk with those responsible, seeking to educate and persuade rather than ridicule or intimidate, recognizing that only persuasion is likely to produce a lasting, beneficial effect.”
Bok makes a very convincing argument using both logos and ethos quite efficiently to state his position. He writes very sensibly, not using harsh and opinionated words, to prove his point. Is he right? Well, that is up to the Harvard administrators to decide. What is certain, however, is in the eyes of the law there really is no right or wrong decision. Each case is different where individual interest in free expression is weighed against the government’s interest in restricting the speech in question, and justice is dealt on a whim. There is a dire need of a concisely and clearly stated amendment-protected statute that balances the legitimate educational objectives, the need for school discipline of administrators, and the First Amendment values that guarantee the free speech rights of students. Until that happens the nations university and college administrators and students will continue to wage their war over the rights guaranteed in the First Amendment.
References
Bok, Derek. “Protecting Freedom of Expression on the Campus.” Linder, Douglas. First Amendment Law. Course home page. Law department, U. of Missouri-Kansas City. 13 Dec 2005 http://www.law.umkc.edu
