Answering Questions from Tuesday’s Webinar

By on April 6, 2012

I had an excellent time at Tuesday evening’s inaugural FIRE webinar! Thank you to everyone who participated-all of us here at FIRE really appreciate your attendance. (And I’d like to personally thank you all for prompting me to finally put together a PowerPoint presentation!)

As folks who watched online know, we had a number of questions submitted at the end of the event that we unfortunately didn’t have time to answer. So I’d like to take a little time to address a few of the best questions now. 

Where a public community college has designated free speech areas on campus, are there any restrictions that can be made on the exhibition of free speech through tents, art or other forms of expression?

Public institutions may impose reasonable "time, place, and manner" restrictions as long as these restrictions are narrowly tailored in service of a significant governmental interest, applicable without regard to the content of speech, and leave open ample alternative means of expression. Under that test, then, it’s conceivable that a public community college could craft and enforce a permissible restriction on the erection of structures like tents on campus, but any such prohibition would have to meet these specific criteria. Student speech can’t be banned just because it’s inconvenient for the school, and a generalized concern for maintaining "order" doesn’t count as a significant governmental interest. So while a school can prohibit students from throwing a concert with amplified sound in the middle of the quad at 3 a.m. during finals week, it’s very difficult to imagine a situation where a university could ban all use of amplified sound on campus, period. And as FIRE often argues, public universities should celebrate and encourage freedom of speech, not fear it. 

I often hear people defend proscribing "hate speech" under the doctrine of fighting words. The notion is that hate speech can provoke people to violent action. Can you speak to the "fighting words" doctrine?

Great question. There’s no First Amendment exception for "hate speech," as my colleague Sean Clark explains here, and that’s in significant part because there can be no uniform definition of what constitutes hate speech sufficient for purposes of revoking First Amendment protection. Of course, speech we commonly think of as hate speech—racial or homophobic slurs, for example—can lose First Amendment protection when used in the expression of other unprotected forms of speech. For example, true threats—defined by the Supreme Court in Virginia v. Black, 538 U.S. 343, 359 (2003) as "those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals"—aren’t protected. Neither is student-on-student hostile environment harassment that satisfies the test announced by the Supreme Court in Davis v. Monroe County Board of Education, 526 U.S. 629, 652 (1999)—that is, expression that is "so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit."

As far as the "fighting words" doctrine (which just turned 70 last month) is concerned, however, it’s all but obsolete. Here’s more on the doctrine, from our "Speech Code Issues" page: 

One category of expression that may not be constitutionally protected is so-called "fighting words"- speech that by its very utterance tends to provoke a violent response from the individual to whom it is addressed. Therefore, many universities cite "fighting words" as an example of impermissible speech. This doctrine is old and is deeply contradicted by a number of Supreme Court cases, to such an extent that many observers consider the doctrine essentially dead. However, the Supreme Court continues to play lip service to the doctrine, despite the fact that the Court has not upheld a single fighting words decision since the creation of the doctrine.

The confusion over the fighting words doctrine has its origins in the 1942 case of Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). In that case, the Supreme Court held that words that provoke an individual to fight do not deserve constitutional protection.

Even this definition of fighting words has been narrowed by state and federal courts over the years. In subsequent decisions, the Supreme Court has stated that in order to be exempt from First Amendment protections, fighting words must be directed at an individual and that individual must be someone who might actually fight. Addressing vicious words to a policeman, for example, is constitutionally protected, since a policeman is assumed to have enough professionalism and self-control not to respond violently. This clearly shows a major shift from the opinion in Chaplinsky, in which a protestor was punished for calling a police officer a "fascist." Universities that cite fighting words should recall that the punished word was "fascist," an epithet that is often used on today’s campuses. 

Proponents of campus speech codes have used a deliberately distorted interpretation of fighting words to justify restrictions on speech that is obviously constitutionally protected. When universities refer to fighting words, they usually mean vile racial or sexual epithets and vulgar personal insults. In so doing, they interpret the category far more broadly than the First Amendment allows.

Why do you think there have been so many free speech issues in Michigan?

Ha! Great question! Something in the Great Lakes, perhaps? I leave this one to my colleague Azhar Majeed to answer. Azhar’s a proud University of Michigan alum who bleeds maize and blue and may or may not have a pet wolverine.