Insensitivity Is Not a Crime

November 7, 2007

At Miami University of Ohio, three student artists are under investigation, apparently with the possibility of punishment, for their pre-approved class project, which included “noose-like ropes” in a piece of art displayed on campus. Some viewers apparently interpreted the art in a way that made them feel offended, reminding them of actual nooses and lynchings. President David Hodge said in a letter to the campus that “I strongly condemn this display and deplore that in this campus community any person would believe this display is in any way acceptable.”

Nick Gillespie at reflects on the case:

I find it really screwed up that the first order of business is to take down something and force the artists to apologize the way they did.

This especially doesn’t make sense because even if the display was intended to call to mind Jena, wouldn’t most people immediately assume it was a comment on that, not an endorsement?

If colleges and universities really supported free and open debate, wouldn’t they use these sorts of things as “teachable moments” where all sorts of viewpoints about art and its role in society would be debated? Rather than being shut down with extreme prejudice?

The case can be made even stronger: what an artist is expressing is not the same as what interpreters behold, although artists generally hope to be understood. When artists are misunderstood, it is not necessarily, and it is often not in any way, their fault. A situation in which viewers feel offended is not the same as a situation in which an artist is attempting to offend. At worst, one can say that by not catering to every possible interpretation of one’s art, an artist is being insensitive to some degree. And notwithstanding the ludicrous nature of such a standard, insensitivity is not a crime.

But the case can be made still stronger: artists have a well-established First Amendment right to be offensive—intentionally offensive—without fear of punishment. As we argued recently in a letter to Central Connecticut State University, regarding a cartoon that was widely deemed offensive on campus:

The Supreme Court stated in Texas v. Johnson, 491 U.S. 397, 414 (1989), that “[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Similarly, the Court wrote in Papish v. Board of Curators of the University of Missouri, 410 U.S. 667, 670 (1973) 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.’”

Parody and satire, even when they include “offensive” language and situations, are forms of political speech that are at the core of our country’s honored traditions. They exist precisely to challenge, to amuse, to provoke—and, indeed, to offend. Case law on this subject is quite clear. The landmark Supreme Court cases Cohen v. California, 403 U.S. 15 (1971) and Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988) protect—as core political speech—shocking or deeply offensive material, farce, profanity, and exaggeration, and they confirm the essential role of parody and satire precisely because they challenge readers’ deepest assumptions and beliefs. No campus that claims to take seriously the free speech rights of students may retaliate against students or a student publication because others on campus felt offended by fully protected speech.

The American Civil Liberties Union (ACLU) also has criticized the university’s actions thus far.

Miami University of Ohio has a FIRE speech code rating of “yellow.” We assign a “yellow” rating when a school has “at least one ambiguous policy that too easily encourages administrative abuse and arbitrary application.” Sadly, such abuse appears to have come to pass.

Schools:  Miami University of Ohio