In the months surrounding the 2016 presidential election, students, faculty, and administrators at colleges and universities across the country have grappled with how to respond to the heated election season rhetoric, including expression that many have found to be disturbingly bigoted. Unfortunately, too many college administrators have eschewed the notion that the solution to “bad” speech is more speech, instead falling back on reflexive censorship and threats of discipline—to the detriment of students’ expressive rights.
Worse, when administrators are faced with unprotected conduct, they often find a way to unnecessarily infringe on protected expression. Recent events at Nassau Community College (NCC) in New York illustrate this unfortunate folly.
Since October 2016, a rash of anti-Semitic graffiti—including more than 10 swastikas—have been found in various campus buildings, prompting investigations by the police and college officials.
As FIRE has repeatedly reminded, vandalism is not protected speech and can properly lead to investigation, disciplinary action, and even criminal charges. But NCC’s response to these criminal acts contains a troubling element. In response to the vandalism, NCC President W. Hubert Keen issued the following statement:
Nassau Community College is an institution which fosters a safe environment for all, and values equality and respect for all of its students, faculty, staff and visitors. We have zero tolerance for any and all kinds of hate speech.
While NCC surely does not have to tolerate vandalism, Keen’s statement goes much further than that, proclaiming that “any and all kinds of hate speech” will be met with zero tolerance by the college.
But barring concurrent unprotected actions, such as vandalism or a pattern of conduct rising to the level of actionable harassment, NCC must indeed tolerate so-called “hate speech.” The Supreme Court of the United States has repeatedly held that hateful speech is protected by the First Amendment. See, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (striking down an ordinance that prohibited placing on any property symbols that “arouse anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.”). The Supreme Court reiterated this fundamental principle in Snyder v. Phelps, 562 U.S. 443, 461 (2011), proclaiming:
Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. […] [W]e cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate.
While the particular conduct Keen was responding to was unprotected vandalism, the broadness of his statement is greatly damaging to campus discourse. The concept of “hate speech” is inherently vague and subjective, and students who read Keen’s statement will be forced to choose between exercising their constitutional right to freedom of speech and risking punishment, or remaining silent for fear that a fellow student or administrator will subjectively deem their expression as hateful and expose them to potential disciplinary action. When faced with such risk, it is reasonable to imagine that many students will opt to remain silent, stifling the free exchange of ideas that colleges and universities should be fostering.
For its part, the Nassau County Police Department has only exacerbated the problem, stating that “all messages of hate will be investigated and pursued by police,” despite the fact that “messages of hate” alone—without more—cannot be punished.
Students have the right to be free from conduct like actionable harassment, true threats, and vandalism. But they do not have the right to be free from ideas or words that are offensive or hateful, nor should administrators endeavor to protect them from such expression.
When responding to incidents like those at Nassau Community College, administrators must remember that the development of critical thinking skills is essential not only to students’ academic lives, but also to their success after leaving campus. Those skills are developed by confronting ideas that challenge one’s core beliefs, perhaps especially those we find most reprehensible. As Justice Oliver Wendell Holmes famously stated in his dissent in Abrams v. United States (1919)¸ “the ultimate good desired is better reached by free trade in ideas.” And administrators must also take care that—even when responding to unprotected conduct—their statements do not inhibit the expressive rights of their campus communities.
FIRE will continue to be vigilant in ensuring that they do.