Remember the First Amendment?

By August 14, 2007

As Luke has previously mentioned, a University of Delaware student is suing the university for violating his Constitutional rights after being suspended for creating an offensive website hosted on the university server. As the Chronicle of Higher Education reports (subscription required):

Mr. Murakowski was accused of violating Delaware’s policies on disruptive conduct and computer use, and was told that he would be barred from class and from his dormitory until he received a psychiatric evaluation.
 
A psychiatrist concluded that Mr. Murakowski was not a threat to himself or to others, but Delaware officials decided to ban him from the campus until this fall. At that point, Mr. Murakowski will be eligible to apply for readmission, but he will not be permitted to enter any residence halls.

The University of Delaware, a public school, is bound by the Constitution and therefore must honor its students First Amendment rights. However, a commenter—ironically, the one who accuses Mr. Murakowski of “not understand[ing] what the Constitution was meant to protect”—writes:

Hate speech and other speech likely to incite violence is not protected speech – it makes no difference if the person saying it has been deemed mentally ill or not. A state university does not have to let speech that is offensive, harassing, and/or threatening reside on state-owned servers.
 
[…]
 
He has a right to his views and he has plenty of places – other than the university campus – where he is free to express them. The University not only has the right, but the duty to protect other students and faculty from offensive conduct. Kudos to University of Delaware for putting a stop to this nonsense. It is so easy to get people stirred-up by claiming a that your “Constitutional rights” have been violated. One does not need a policy to know when someone is acting inappropriately.

This commenter is misinformed. The “fighting words” doctrine, which I believe she alludes to when she writes “speech likely to incite violence,” is a very narrow and very misunderstood limit on speech. As mentioned in FIRE’s Guide to Free Speech on Campus, the restriction, which confuses many legal scholars and which may no longer even be valid, “encompass[es] only face-to-face communications that obviously provoke an immediate and violent reaction.” Under no interpretation, though, would browsing a website, which one can leave as easily as he or she arrived, fit this definition.
 
We have discussed the falsity of claims about the lack of First Amendment protections of hate speech and offensive speech many times on The Torch. As Sean stated in a previous blog dedicated to the idea of hate speech:

The U.S. Supreme Court stated the general rule regarding protected speech quite well in Texas v. Johnson, when it held:

The government may not prohibit the verbal or nonverbal expression of an idea merely because society finds the idea offensive or disagreeable.

Federal courts have consistently followed this holding when applying the First Amendment to public universities. While invalidating sanctions placed on a fraternity for holding an “ugly woman contest,” a federal district court in Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University, 993 F.2d 386, held:

The First Amendment does not recognize exceptions for bigotry, racism, and religious intolerance or ideas or matters some may deem trivial, vulgar or profane.

The Associated Press article covering the incident suggests repeatedly that many of the actions and reactions of the university administrators were motivated by the recent Virginia Tech shootings. Will we now resort to assigning mandatory counseling to and expelling all students who offend or dislike other students? Shortly after the tragedy, Samantha explained why we, as a society, must resist this temptation:

But this is precisely why the First Amendment exists: because some rights—including the right to free expression—are so important that they must be removed from majoritarian consideration lest they be compromised by sways in public opinion. We cannot let a tragic event undermine the fundamental freedoms that define us as Americans.