A recently uncovered email reportedly written by a University of Maryland student and Kappa Sigma fraternity member containing racial slurs has raised the question of whether the email constitutes protected expression under the First Amendment. Unless there are more factors of which we are not yet aware, the answer is yes.
The Supreme Court of the United States long ago established that as government actors, public universities must respect the First Amendment rights of their students. Students do not lose their First Amendment rights as a condition of attending a public university.
Regardless of whether the email’s content offends some, many, or even all members of the University of Maryland community, the university may not punish him because of his viewpoint. In overturning the expulsion of a student for distributing an underground student newspaper containing a political cartoon depicting police officers sexually assaulting the Statue of Liberty and the Goddess of Justice, the Court made clear 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 (1973).
Nor does the email appear to lose First Amendment protection as a “true threat.” In Virginia v. Black, 538 U.S. 343 (2003), the Court 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.” From the limited context presently available, it does not appear that the email meets this legal standard.
To the extent the email presents evidence of unlawful activity, such activity may be investigated, as long as the students accused of misconduct are afforded meaningful due process rights. If, however, the University of Maryland were to initiate disciplinary action against the email’s student author solely on account of the email’s content, it would likely violate the student’s First Amendment rights.
Of course, University of Maryland community members may exercise their own First Amendment rights to condemn the expression. The Kappa Sigma fraternity may discipline the student, as it reportedly has done.
As FIRE President Greg Lukianoff observed in his 2012 book Unlearning Liberty: Campus Censorship and the End of American Debate, “Fraternities consistently produce some of the least sympathetic cases for campus free speech advocates. Incidents like dressing in blackface and Klan robes for a Halloween party, as Tau Kappa Epsilon at the University of Louisville did in 2001, do little to endear fraternities to the public.” Nevertheless, Lukianoff reminded readers, “Anyone who wants to eradicate offensive speech needs to understand this: there will always be some subset of society that will purposefully mock everything society holds dear.”
On our public college campuses, counter-speech—not official punishment—should be the answer to offensive but protected speech.