For the last two weeks, anger and controversy have been swirling at North Carolina State University about messages painted in N.C. State’s “Free Expression Tunnel” on November 5 in the wake of Barack Obama’s presidential election victory. One message reportedly read, “Hang Obama by a noose.” Here is a picture of another one, which read, “Let’s shoot that nigger in the head!” These messages have been widely and severely criticized across campus and beyond. I have been unable to determine if any other such messages were painted. Since the incident, four students (whose names have not been revealed) have admitted responsibility for the messages in the tunnel, and they have even issued an (anonymous) public apology for the messages. Because the messages advocated violence against the President-elect, the Secret Service investigated the matter but determined that the graffiti did not constitute true threats to the President-elect’s life and that no crime was committed, which is why the names of the students were not released to the public.
This sort of expression—the advocacy of violence against Presidents or other politicians—is unpleasant, though certainly not unprecedented, and when such a threat is real, it is illegal. That wasn’t the case this time, thankfully—it seems to have been a case of overheated and violent rhetoric without any plans to commit actual physical violence—although the added racial component of the threats is certainly quite depressing. Unfortunately, more such rhetoric should probably be expected considering that Barack Obama will be the first black President. However, even racist political speech that does not constitute a true threat (as was evidently the case here) is protected by the First Amendment, so N.C. State cannot legally punish the students involved. The university administration seems to be quite aware of this fact and has so far held off on punishing them. The Technician, N.C. State’s main student newspaper, reported that Chancellor James Oblinger released a statement saying, in part, “Many of you have asked what the University can do to stop hate-filled speech on our campus…There are legal limits to our ability to make rules against such messages.” This is a wise move considering that since no crime was committed and the graffiti was painted in an area specifically set aside for anonymous speech (while most graffiti is illegal, it is not illegal in the “Free Expression Tunnel”), N.C. State would clearly be violating the Constitution by punishing the students involved.
As is usual in such cases, a massive uproar has ensued over the speech involved and over N.C. State’s reaction to it. Outrage against outrageous opinions is a normal and healthy part of a free society. Unfortunately, as is all too common on this nation’s college campuses, a great many of the people angry about this speech have chosen censorship and official punishment as the approved remedy for speech they don’t like.
Headlining the punishment faction is the North Carolina NAACP, which has called for the expulsion of the four students involved. The Rev. Dr. William J. Barber, president of the state NAACP conference, said, “Anybody who would write this kind of language and take the time to write it is disturbed, is quite sick in the mind…We don’t want to see any kind of Virginia Tech issue happen right here on this campus. It’s wrong, it’s ugly, it’s vile and it’s not protected by freedom of speech.” Rev. Barber may or may not be right about the mental state of the students involved, but he is wrong to say that their expression was not protected by freedom of speech, and he is therefore wrong to call for the students’ expulsion. Simply put, the government (of which N.C. State is a part) may not punish students or anyone else for protected expression, no matter how revolting or unpopular. Rev. Barber has the right to lobby for unconstitutional measures if he believes that punishing the students involved is more important than respecting the First Amendment, but N.C. State does not have the freedom to grant his wishes.
The sentiment that punishing the students involved is more important than preserving freedom of unpopular speech also seems to be widespread on N.C. State’s campus. According to The Technician, during a “unity rally” in response to the incident, Tracey Ray, director of N.C. State’s Multicultural Center, stated that she wanted the students to be treated like criminals and said, “I want the names. I want them prosecuted.” It is ironic that this unfortunate call for unconstitutional punishment came during a rally against the sentiments expressed by the graffiti in question—a classic example of fighting speech one does not like with more speech. The Student Senate has also been contemplating “hate crimes legislation” calling for the expulsion of the students involved. While the legislation has been delayed, it not only calls for unconstitutional punishment but also appears to be targeted incorrectly: In order for something to be a “hate crime” it must first be a crime, which this particular incident was not.
While so far the students involved seem to have escaped punishment, this matter appears to be far from over. Chancellor Oblinger has created a “Campus Climate Task Force” that is assigned to “review the campus climate, examine student conduct, and explore potential guidelines for use of the Free Expression Tunnel and the Brickyard.” Such reports rarely produce conclusions that are friendly to free speech. For instance, one of the more specific tasks of the force is to “[e]xamine and articulate what guidelines, if any, should be established for use of the Free Expression Tunnel and the Brickyard, taking into consideration the permitting process for access to the Brickyard and university practices for maintaining the Free Expression Tunnel.” N.C. State is not required to maintain a “free expression tunnel” on campus where graffiti is allowed (although it must, as a state university, allow more traditional forms of free expression on the vast majority of its campus), but it would certainly be unfortunate if the “free expression tunnel” were turned into a “limited expression tunnel” after decades of existence simply because of a single notorious incident of racist speech.
One thing that it would be wise for N.C. State community members to keep in mind as they decide how to respond to this expression is that it is very dangerous to make it illegal or against the rules to peacefully hold or express unpopular views or to use government power to demand the names of those who do. One group that sprang to my mind as facing a similar problem is, ironically, the NAACP. In the famous case of NAACP v. Alabama, 357 U.S. 449 (1958), the U.S. Supreme Court unanimously struck down Alabama’s requirement that the NAACP reveal the names and addresses of all its members and agents in the state—a requirement intended to interfere with the freedom of association of its members by publicly revealing that they were members of the NAACP, which was unpopular in Alabama at the time, and membership in which might have exposed people to attacks. While it may seem wrong to analogize the graffiti artists in this case to the members of the NAACP, their views are probably as unpopular today at N.C. State as the NAACP’s views were in 1950s Alabama. In neither case should the popularity of the expression at issue be the determining factor in whether the government can punish people for holding or expressing such views.
Living in a free society can be messy. Feelings will be hurt and people offended. Of course, this is true in repressive societies as well—the difference being that the only people whose feelings will be hurt are those who disagree with the majority or with the government. That’s hardly an improvement. It is understandable that so many people in North Carolina are upset about this expression—and it’s virtually a sure bet that the students involved will never do such a thing again—and will probably be reexamining their own views. That is how social pressure works. While it might be more satisfying or cathartic to ensure that those who upset us with their opinions are punished, we must labor to remember that everyone has opinions that are unpopular with somebody, and that the precedent that unpopular expression may be punished, once made, applies to everyone.