Katherine Lewis Parker, Legal Director for the American Civil Liberties Union of North Carolina Legal Foundation (ACLU-NCLF), wrote to UNC system President Erskine Bowles last week regarding the much-publicized case of racist speech in the "Free Expression Tunnel" at North Carolina State University (NCSU). The North Carolina ACLU got engaged in this issue once Bowles directed the UNC schools to consider a ban on "hate speech" in response to the legal but derogatory graffiti painted in the tunnel. The ACLU-NCLF, according to Parker, "disagree(s) with the need for—or the constitutionality of—a proposed speech code in response to the incident [and] with [the] conclusion that the speech at issue is not protected by the First Amendment."
Parker gives an eloquent statement on the constitutionality of the speech in question:
[T]he First Amendment to the United States Constitution protects speech no matter how offensive its content, so long as it does not fall into very narrow exceptions. As a court long ago explained in the infamous Skokie case [a march in Illinois by the National Socialist Party], "it is better to allow those who preach racial hate to expend their venom in rhetoric rather than to be panicked into embarking on the dangerous course of permitting the government to decide what its citizens may say and hear."
She notes the one exception to the First Amendment that apparently has been invoked in the present case: true threats. However, this exception does not apply. In order to be a true threat, as Parker explains (citing Virginia v. Black), there has to be a clear "intent to commit an act of unlawful violence to a particular individual or group of individuals." Furthermore, the intended victims must be intentionally placed "in fear of bodily harm or death." While the statements might have given some students a general fear of bodily harm, that was not the intent of the statements. Thus, they fall short of the standard constituting a "true threat."
This is further demonstrated by the fact that the comments were directed at President-elect Barack Obama, not at anyone else on or off campus. In order to be "true threats," the language must be actually threatening to the target. The Secret Service has already duly investigated the incident and deemed that the threats were not credible. The statements are therefore protected political expression. Furthermore, the statements were painted on the walls of the "Free Expression Tunnel," a place "traditionally reserved for unfettered speech, typically on political issues." If there is any place on N.C. State’s campus where incredibly offensive but constitutionally protected speech can be expressed, it is there.
After delineating the case for the constitutionality of the speech in question, Parker takes a strong stance in opposition to the "hate speech code" proposed by the NAACP and some members of the NCSU community:
With regard to any proposed "hate speech code," the ACLU-NCLF believes that speech codes adopted by state colleges and universities amount to government censorship in violation of the Constitution. Further, where racist speech is concerned, more speech—not less—is the best cure. We believe that this is particularly true at universities, whose mission is to facilitate learning though open debate and study, and to enlighten.
As has already been evidenced by student response to the statements, when hate is out in the open, people can see the problem. They can then organize effectively to counter bad attitudes, possibly change them, and forge solidarity against the forces of intolerance.
Combating speech with more speech, not censorship—this is a case FIRE has made often. We’re glad to hear others chiming in.