Ole Miss Seeks to Put First Amendment in a Noose

March 2, 2014

by Harvey Silverglate in Minding the Campus

Question: When is an obnoxious expression of a point-of-view a crime in our supposedly free society? Answer: When college administrators and federal law enforcement officials find it in their career interests to appeal to political correctness and play holier-than-thou, all at the expense of liberty, as the latest controversy at the University of Mississippi demonstrates.

On February 16th, three Ole Miss fraternity brothers allegedly placed a noose and a Confederate flag on the campus statue of James Meredith. Meredith, a hero in the civil rights movement, enrolled at then-segregated Ole Miss in October 1962 with the aid of a court de-segregation order and 500 U.S. marshalls whose job it was to enforce that order. (I have to admit to a yearning for the “good old days” when the Department of Justice actually protected rather than erodedconstitutional rights on college campuses – but that’s a story for another column.)

Now, academic administrators and FBI authorities have apparently joined forces to suggest that the three Ole Miss students will be investigated and maybe prosecuted. Unnamed FBI officials have said that the “vandalism” might conceivably be the basis for federal charges. And the chancellor of Ole Miss, Daniel W. Jones, was reported to have announced that the three students’ “ideas have no place here” and that “our response will be an even greater commitment to promoting the values that are engraved on the statue – courage, knowledge, opportunity and perseverance.” Dr. Jones did not explain how prosecuting three students, whose only offense known to date was engaging in constitutionally protected speech, would promote any of the named values.

The Campus Shift to Censorship

I’ve been a First Amendment and academic freedom lawyer since the beginning of a career that started during the heyday of student protests against the Vietnam War (back then I represented literally hundreds of protesters and draft refuseniks), and I’ve had more than my share of battles with the FBI in the criminal defense half of my law practice. Yet I never cease to be amazed at how little campus administrators and FBI agents manage to understand the magnificent breadth of the First Amendment’s free speech guarantee. Protecting unpopular speech, especially on college campuses, is a battle that must, it seems, be fought over and over.

A shift away from liberty and toward censorship on our campuses has been especially evident since the mid-1980s, when professional administrators began to push faculty members out of governance of our colleges and universities and when, coincidentally (or not?) federal officials began to persecute and prosecute innocent citizens by the use and abuse of vague federal statutes. It was during that very time that a new language took over: such terms as “inclusion,” “diversity” and “multiculturalism” became the buzz-words of the era, aimed at making the point that our campuses need to display for the world a wide variety of students of different skin colors, genders, disabilities, sexual orientations and so forthMuch prized in the eyes of campus administrators were students who are different in many ways but who think and spout the same official line. These administrators got it in their heads that in order to protect diverse students offensive speech had to be penalized. This diversity initiative has thus had the perverse effect of seriously eroding campus administrators’ appreciation of academic freedom, free thought, and free speech; they stand at the ready to censor any campus speech that might offend.

Free Speech Even for Bigots

Unless an investigation discovers that the students did actual damage to the statue (for example, defacement with paint), the case is actually a quite simple one from a constitutional point of view. And because Ole Miss is a public institution, it is bound by the free speech dictates of the First Amendment, as are state and federal law enforcement officers. The breadth of free speech in these kinds of provocative, racially charged incidents has been laid out in decades of rather consistent Supreme Court precedents moving sharply in the direction of protection of unpopular speech. (Interestingly, and perhaps ironically, some of the precedents result from legal victories by anti-war and anti-segregation demonstrators and activists in the 1960s and 1970s – precedents that now protect the speech of bigots as well.)

Two high-court decisions in particular would appear to put an end to any notion of prosecuting the three fraternity brothers. In its 1992 decision in R.A.V. v. City of St. Paul, the high court struck down St. Paul, Minnesota’s so-called “Bias-Motivated Crime Ordinance,” which criminalized the display of any symbol that one knows or has reason to know “arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.” The case involved a cross-burning by whites on the property of a local black family – a violation deemed bias-motivated disorderly conduct. A prosecution followed, and the underlying ordinance was invalidated when the case reached the Supreme Court, accompanied by friend-of-the-court briefs filed by the major civil liberties organizations of the day, including the American Civil Liberties Union, Association of American Publishers, and the Center for Individual Rights.

Strict Government Neutrality

Justice Antonin Scalia wrote the prevailing 5-4 opinion for himself and four other justices; the remaining four concurring justices agreed that the ordinance was unconstitutional, but their analysis differed. The Scalia majority concluded that the ordinance was on its face unconstitutional because “it prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses.”  The majority opinion has had profound implications in the First Amendment arena, protecting even speech that is grossly offensive to normal sensibilities. In a famous passage as memorable as it was eloquent, Scalia wrote:

One could [under St. Paul's ordinance] hold up a sign saying, for example, that all “anti-Catholic bigots” are misbegotten; but not that all “papists” are, for that would insult and provoke violence “on the basis of religion.” St. Paul has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensbury rules.

Special Protection for the Disadvantaged?

The court’s opinion was a prime example of one of the fundamental underpinnings of the First Amendmentgovernmental neutrality in terms of point-of-view. There cannot, in a free society, be any such thing as an officially prohibited viewpoint. There might indeed be some speech that many, even most, people would categorize as “hate speech.” But in the eyes of the First Amendment, speech that promotes hate is as protected as speech that promotes love. The theory of many academic administrators and some civil rights activists, then and now, that special protections are needed to safeguard the feelings of “historically disadvantaged” groups, has not garnered the support of the nation’s highest court. As Alan Charles Kors and I wrote in “The Shadow University” back in 1998: “The only ‘disadvantaged’ person, in the eyes of that First Amendment upon which everyone’s liberty depends, is one reduced to silence.”

The issue arose yet again in a 2003 situation, Virginia v. Black, another cross-burning case. The fundamental principle on which a majority of the justices agreed is that a state may outlaw symbolic speech such as cross-burning only when the clear intent is “to intimidate because burning a cross is a particularly virulent form of intimidation,” but it may not outlaw a cross- burning (or other such symbolic activity) where the purpose is limited to merely “creating anger or resentment.” The court went on to “distinguish between a cross-burning at a public rally or a cross-burning on a neighbor’s lawn.” (The former would be protected speech, but the latter could be prosecuted if deemed a personal threat to the homeowner.) Virginia’s cross-burning statute was deemed unconstitutional because “it does not treat the cross-burning directed at an individual differently from the cross-burning directed at a group of like-minded believers.” The difference, the high court ruled, is crucial for distinguishing a true threat from an expression of political or social belief.

In the majority opinion, the court quoted Gerald Gunther, the highly regarded constitutional law scholar at Columbia and then Stanford:

The lesson I have drawn from my childhood in Nazi Germany and my happier adult life in this country is the need to walk the sometimes difficult path of denouncing the bigot’s hateful ideas with all my power, yet at the same time challenging any community’s attempt to suppress hateful ideas by force of law.

Using this analysis, the proper question at Ole Miss becomes whether the display of the noose and the Confederate flag on the Meredith statue on the campus could reasonably be seen as a threat against an identifiable individual, or, instead, as a general philosophical and political statement against integration and racial equality. (Of course, there is a third possibility, which I think is at least as plausible: That it was a prank conducted by students with stunningly bad judgment.) I think it highly unlikely that the Meredith statue incident could reasonably be seen, as a legal matter, as the kind of threat that could undergird either a state “threats” or a federal “civil rights” prosecution. And the fact that the incident arose on a university campus surely suggests that if there be any ambiguity in the intent of the malefactors, it be resolved in favor of academic freedom and against repression of unpopular expressions of opinion.

Interestingly, it has been reported that the national fraternity organization has suspended the Ole Miss chapter and expelled the three allegedly responsible members. This is as it should be: since freedom of association has been held to be protected by the First Amendment, a private membership organization has the undoubted constitutional right to discipline or expel members who have brought shame to themselves and to the organization. In other words, the same First Amendment that prevents a public university or a government from punishing wayward students, also protects the right of a private organization to decide what conduct is unacceptable for its members. Acting as these three students allegedly have acted does have a price, but in a free society that price is exacted by private citizens rather than by the government (or by the administrators of a public university).

We remain a nation of laws and liberties. Even the most puerile or hateful expression of unpopular speech is, for good reason, constitutionally protected. After all, if the speech of the three Ole Miss students is prosecutable as “hate speech,” then at the next turn of the ideological screw, the rest of us could find ourselves in legal trouble. Issues such as have aroused the Ole Miss campus must be played out according to what Supreme Court Justice Oliver Wendell Holmes in 1929 termed “the principle of free thought – not free thought for those who agree with us, but freedom for the thought that we hate.”

Holmes’ view was soon adopted by Supreme Court justices spanning generations, and it has withstood the test of time. Harvard Law School liberal constitutional scholar Laurence Tribe put the issue starkly, in terms that should be easy enough even for college administrators and FBI agents to understand:

If the Constitution forces government to allow people to march, speak and write in favor of peace, brotherhood, and justice, then it must also require government to allow them to advocate hatred, racism, and even genocide.

Amen to that.

Schools: University of Mississippi