FIRE Letter to University of North Carolina President Erskine B. Bowles

February 16, 2009

President Erskine B. Bowles
Office of the President
The University of North Carolina
910 Raleigh Road
P.O. Box 2688
Chapel Hill, North Carolina 27215-2688

Sent via U.S. Mail and Facsimile (919-843-9695)

Re: Study of UNC Student Codes of Conduct as They Relate to Hate Crimes

Dear President Bowles:

As you can see from the list of our Directors and Board of Advisors, the Foundation for Individual Rights in Education (FIRE) unites leaders in the fields of civil rights and civil liberties, scholars, journalists, and public intellectuals across the political and ideological spectrum on behalf of liberty, legal equality, freedom of religion, academic freedom, due process and, in this case, freedom of expression on America's college campuses. Our website, www.thefire.org, will give you a greater sense of our identity and activities.

I write today to formally register FIRE's concerns about the possibility of the implementation of a System-wide policy addressing hate crimes and acts of violence and intimidation. It is our strong belief that existing law already substantively addresses the problems the UNC Study Commission to Review Student Codes of Conduct as They Relate to Hate Crimes may seek to remedy. FIRE is gravely concerned that establishing further prohibitions regarding "hate speech" on campus may unlawfully abridge the First Amendment rights of UNC students and simultaneously sabotage UNC's admirable mission to "discover, create, transmit, and apply knowledge to address the needs of individuals and society."

Our concerns are both legal and moral in nature.

First, it is crucial to remember that the First Amendment fully applies on the campuses of the public universities comprising the UNC System. That the protections of the First Amendment extend to public colleges and universities is a long-settled and well-established principle in our nation's constitutional jurisprudence. As the United States Supreme Court has observed:

[T]he precedents of this Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large. Quite to the contrary, "the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools."

Healy v. James, 408 U.S. 169, 180 (1972) (internal citation omitted). Indeed, the Court has explained that preserving individual liberties on public campuses like those in the UNC System is critical to the health of our democracy. In Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957), the Court made this relationship strikingly clear:

The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation... Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.

In light of the Court's robust and unstinting support for full expressive rights on public campuses, it is next necessary to remember that there is no First Amendment exception for "hate speech," nor has there ever been. To the contrary, the right to free speech includes the right to say things that are deeply offensive to many people. As the Court has plainly stated, "[i]t is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers." Street v. New York, 394 U.S. 576, 592 (1969). The Court has specifically applied this rationale to the university setting, ruling that "the mere dissemination of ideas—no matter how offensive to good taste—on a state university campus may not be shut off in the name alone of ‘conventions of decency.'" Papish v. Board of Curators of the University of Missouri, 410 U.S. 667, 670 (1973) (internal citation omitted).

Federal courts have followed suit. In striking down a harassment policy at a public high school, the United States Court of Appeals for the Third Circuit held that there is "no question that the free speech clause protects a wide variety of speech that listeners may consider deeply offensive." Saxe v. State College Area School District, 240 F.3d 200, 206 (3dCir. 2001). Similarly, in invalidating a harassment policy at the University of Michigan on First Amendment grounds, a federal district court held that the university could not "proscribe speech simply because it was found to be offensive, even gravely so, by large numbers of people." Doe v. University of Michigan, 721 F. Supp. 852, 863 (E.D. Mich. 1989). (Incidentally, it is worth noting that the University of Michigan had implemented the overturned policy in response to a series of racist incidents on campus.)

Given the state of the law, it is extremely unlikely that any restriction on hate speech on campus would pass constitutional muster. We urge you to spare UNC the embarrassment of fighting against the Bill of Rights in court.

However, it is also important to note that the evils UNC presumably seeks to combat by enacting a hate speech policy—for example, racial harassment and threats of violence—may already be prohibited through existing exceptions to the First Amendment. For example, true harassment is not protected under the First Amendment. In the educational setting, the Supreme Court has defined true "hostile environment" sexual harassment as behavior that is so severe, pervasive, and objectively offensive that it effectively limits or denies access to the benefits of school. Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 652 (1999).

Similarly, "true threats" do not enjoy First Amendment protection. The Supreme Court has defined "true threats" 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." Virginia v. Black, 538 U.S. 343, 359 (2003). Likewise, Virginia v. Black states that "[i]ntimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death." The threat must actually be intended to place the victim in fear of bodily harm or death, rather than simply being "political hyperbole." For example, the Supreme Court held that a statement by an opponent of the draft that "[i]f they ever make me carry a rifle the first man I want to get in my sights is L.B.J." was not a true threat on the President's life, but rather was a constitutionally protected yet "very crude offensive method of stating a political opposition to the President." Watts v. United States, 394 U.S. 705, 707 (1969). The racist messages recently found in North Carolina State University's Free Expression Tunnel may be similarly classified: ugly yet protected speech.

In addition, the extensive legal precedent documented above makes clear that the First Amendment is designed in part to protect precisely that speech which a community finds most disagreeable, most offensive, and most antithetical to that community's values. This protection stems directly from a deep, abiding respect for the intelligence of the American citizen. Rather than allow government censors to decide which ideas, no matter how hateful, reach our ears, the First Amendment entrusts adult citizens with the power to judge the merit of speech for themselves, answering only to the dictates of their own conscience. In his seminal treatise On Liberty, political philosopher John Stuart Mill noted that in the marketplace of ideas, it is through exposure to falsehoods that we learn what is true. Once people no longer have to defend their beliefs and values, those ideas lose their vitality, becoming merely rote formulas instead of deep, living, and creative convictions.

Rather than prove the need for hate speech codes, then, the reaction to the ugly, racist speech discovered in North Carolina State University's Free Expression Tunnel demonstrates just the opposite. Confronted with speech with which they strongly disagreed, most students and administrators answered not with unthinking censorship but with more speech. This is as it should be: students must be trusted with the ability to evaluate and respond to ideas on their own. Instituting a policy that simply silences reprehensible speech through censorship and punishment would deprive UNC students of the opportunity to learn from the many lessons offered by directly confronting hate and ignorance—and the opportunity to change minds via dialogue. Further, teaching students to reflexively rely on official censorship when dealing with deeply offensive speech is infantilizing and misleading. In the world outside of UNC, students will not enjoy the false luxury of freedom from offense.

We urge UNC to honor its legal and moral obligation to its students. Instead of violating the First Amendment by choosing simple, corrupting censorship in the form of a hate speech code, teach your students the power of principle and dialogue. Be true to the noble aspiration of your mission: to "communicate the knowledge and values and impart the skills necessary for individuals to lead responsible, productive, and personally satisfying lives."

Please notify FIRE regarding your eventual decision, and thank you for your attention to our concerns.

Sincerely,

William Creeley
Director of Legal and Public Advocacy

cc:

The Rev. William J. Barber II, President, NAACP of North Carolina

David T. Drooz, Senior Associate General Counsel, North Carolina State University

Mary Elizabeth Kurz, Vice Chancellor and General Counsel, North Carolina State University

Laura Bernstein Luger, Vice President and General Counsel, University of North Carolina

Bruce I. Mallette, Senior Associate Vice President for Academic and Student Affairs, University of North Carolina

Alan McSurely, General Counsel, NAACP of North Carolina

James L. Oblinger, Chancellor, North Carolina State University

Katherine Lewis Parker, Legal Director, American Civil Liberties Union of North Carolina

José A. Picart, Associate Vice Provost for Diversity and Inclusion, North Carolina State University

Tracey E. Ray, Director of Multicultural Student Affairs, North Carolina State University

Thomas H. Stafford, Jr., Vice Chancellor for Student Affairs, North Carolina State University

UNC Study Commission to Review Student Codes of Conduct as They Relate to Hate Crimes