Shibley: UNC should recommit to First Amendment

By October 17, 2010

In 1963, the North Carolina legislature enacted a now-infamous "speaker ban" preventing known members of the Communist Party (or those who had pleaded the Fifth Amendment when asked if they were members) from speaking at state colleges and universities. The ban was finally overturned by a federal court in 1968 after years of student, faculty and administrative opposition to the restrictions, striking a well-deserved blow against the idea that some thoughts are simply too dangerous to express on a university campus.

The "speaker ban" was imposed upon a largely unwilling UNC Chapel Hill by the state legislature. That’s why it’s especially unfortunate that more than 40 years later, the only remaining restrictions on the First Amendment at UNC have been enacted by the university itself.

Rated as a "yellow-light" school by the nonpartisan Foundation for Individual Rights in Education (FIRE), where I work, UNC has several policies that can be used to ban or excessively regulate constitutionally protected speech. Among them are vague and overly broad policies that allow "harassment" to be defined by the subjective feelings of the most easily offended people on campus rather than by the legally required objective standard of a reasonable person.

Considering the very different standards of and reasons for taking offense that could be held by a freshman from Hickory and a senior from New York City, there is good reason why the law demands a more objective standard. Why doesn’t UNC?

Even less defensible is a policy requiring that "residents avoid posting materials with regard to race, gender, religion, national origin, sexual orientation, age or physical disability that may be considered offensive to fellow residents or guests" on dorm room doors.

While I was not offended by the Danish cartoons of the Islamic prophet Mohammed, many Muslims are. Are we truly comfortable having UNC — or any other government agency — censor a cartoon if a student were to decide to post it in order to protest the violent reaction to the publishing of those cartoons?

FIRE rates schools’ speech codes as red-, yellow- or green-light based solely on written policy, yet UNC also has been lacking in the practice of free speech of late — and students share some of the blame. Most notoriously, a speech last year by former Congressman Tom Tancredo abruptly ended when disruptive student hecklers opposed to his stance on immigration got so out of control that they broke a window, caused police to hustle Tancredo out for his own protection and had to be dispersed with pepper spray. Chancellor Holden Thorp was forced to publicly apologize to Tancredo.

Nevertheless, the next week six students were arrested for disrupting a speech on the same topic by former Congressman Virgil Goode.

Chancellor Thorp’s record on free speech has been good on the whole, but a report in The Daily Tar Heel last week may give reason for pause. According to the student paper, Chancellor Thorp called the paper last Thursday night to ask it to get a reporter out of a public area of a campus building so that a UNC football player who had a hearing before the university’s Honor Court could remain unidentified.

This is problematic on two fronts: First, no university administrator has the right to interfere with student reporters who are pursuing a story in a part of the university where they have a right to be. The First Amendment protects freedom of the press on a university campus just as it does everywhere else. Second, having the university’s chancellor make such a call on behalf of a football player and not on behalf of every other student suggests a disturbing double standard.

The urge to silence expression we find unpleasant is age-old and nearly universal. Yet silencing certain beliefs or ideas undermines the purpose of a university, where all ideas, no matter how much we despise them, should be available for rational consideration.

UNC should recommit itself to the First Amendment by revising its speech-restrictive policies and rejecting further attempts on the part of students or administrators to interfere with freedom of speech or of the press. FIRE stands ready to help.

Robert L. Shibley, an attorney, is senior vice president of the Foundation for Individual Rights in Education (FIRE). He lives in Apex.

Schools: University of North Carolina – Chapel Hill