After sponsoring an event focused on the French satirical magazine Charlie Hebdo and the aftermath of the tragic attack on the publication’s staff in January, the University of Minnesota’s (UMN’s) College of Liberal Arts (CLA) was investigated by the Office of Equal Opportunity and Affirmative Action (EOAA) for flyers promoting the event. The flyers featured a reproduction of the cover of the first Charlie Hebdo edition published following the attack with the word “censored” stamped over it. Eight individuals filed a complaint with EOAA, and approximately 260 people signed a petition calling the flyer design “very offensive.” Both groups included students, staff members, and non-community members. After an investigation, the flyers were determined not to have violated university policy, but the community’s response to the flyers nevertheless demonstrates misunderstandings about freedom of expression and the interests at stake.
At the panel, titled “Can One Laugh At Everything? Satire and Free Speech After Charlie,” Professors Anthony S. Winer, William Beeman, Jane E. Kirtley, and Bruno Chaouat, as well as editorial cartoonist Steve Sack, discussed freedom of speech, depictions of Mohammed throughout history, and other relevant topics. According to Inside Higher Ed, panelists considered the event a success, as the debate was lively but peaceful. It was only weeks later that they learned about the controversy over the flyers.
Despite the fact that the cartoon doesn’t come close to falling into any of the narrowly-defined categories of unprotected speech under the First Amendment, EOAA’s investigation, which included interviewing organizers about their motives, was not completed until the end of March. Inside Higher Ed relays the outcome:
Ultimately, the office determined that the poster did not violate the university’s antiharassment policy, which prohibits discrimination on the basis of religion. Factoring into the decision was the poster’s relevance to academic subjects and its general commentary on a matter of public concern.
While EOAA correctly concluded that the flyer does not constitute harassment, it shouldn’t have taken a public university so long to make that determination. Troublingly, UMN maintains a “yellow light” policy on racial harassment—that is, one that can be easily used to punish constitutionally protected expression—so although the poster falls far short of the Supreme Court’s standard for harassment in the educational context, it was not a foregone conclusion that UMN would clear CLA of the charge. The reasons EOAA cited for doing so are also worrying: The office relied in part on its assessment of the value of this speech. EOAA’s consideration of the flyers should have been much shorter and simpler, and the event’s organizers shouldn’t have been required to defend their decision in order to avoid censure.
Organizers had another reason to be unsure about their good standing with the university before EOAA’s investigation concluded. In emails forwarded to Inside Higher Ed, the human resources office notified faculty via email on February 13 that the EOAA “ha[d] requested that the image [of the flyer] be removed from any [college] communication in all forms,” including digital flyers and links. In addition to noting that the event already took place, the email explained that the request was “[d]ue to complaints about the image contained in the link.” CLA’s Dean John Coleman clarified three days later that it was ultimately faculty members’ prerogative whether to remove these materials, although by then, most of the damage to free expression was likely done.
As constitutional law professor Eugene Volokh points out on The Volokh Conspiracy today, EOAA’s email still sends the chilling message that professors who dare engage in speech that some consider offensive may find themselves under significant pressure from university administrators to self-censor. He writes:
This wasn’t a fringe group of anti-Islam political activists putting out the flyers; these were people squarely in the middle of the academic Establishment. This wasn’t a bunch of cartoonists putting out material that, viewed narrowly, might be seen by some as juvenile, nonsubstantive, or gratuitously offensive; these were academics putting on a substantive academic event with a flyer that is clearly and directly tied to the content of the event, and that depicts an image that has undoubted historical significance.
To be sure, I think the speech of fringe groups and juvenile cartoonists is protected by the First Amendment and by academic freedom principles — but even if you disagree, or think that this sort of speech should be generally constitutionally protected but excluded from academic institutions or condemned by standards of good manners, here we are far removed from those fringes, and squarely in the core of serious academic discussion on hugely important matters. Yet some public university administrators still seem to have felt comfortable trying to take down such speech, and, I suspect, trying to prevent it in the future.
Event co-organizer Professor Chaouat spoke out about the incident’s potential to chill expression on campus:
Chaouat said he feared it was possible that “terror and terrorism actually work when people have a tendency to internalize the fear of retaliation and to self-censor. …This is something that’s happened in France after the January events -- there’s been a lot of self-censorship in the aftermath of the Charlie Hebdo attacks and I’m afraid we’re on the path here as well.”
He added, “In the name of tolerance and acceptance and diversity, we’re actually lying to ourselves.”
Professor Beeman called the controversy an attempt “to enjoin faculty from saying anything that might hurt somebody’s feelings, or that might offend someone.” Indeed, as FIRE President Greg Lukianoff wrote in his book Freedom From Speech, there is a growing trend of students demanding that nobody say anything that might offend them. Speaking to the Minnesota Daily student newspaper, FIRE’s Catherine Sevcenko aptly noted, “You’re not going to be producing ideas if you’re saying things that are safe and everyone agrees.” Innovation and progress depend on the ability to express thoughts that may not be well-received.
Another worrying element of this case is that at one point, Dean Coleman reportedly considered putting a trigger warning on (presumably online) displays of the flyer, saying, “I not infrequently will come across news sites that will provide the option of seeing/hearing something that might be considered difficult for some viewers/listeners.” Proponents of trigger warnings are increasingly using the concept to silence or chill expression. What’s more, just as students are confusing the need for physical safety with their interest in emotional and intellectual safety, an improbable proportion of campus communities are claiming the need for care formerly associated with those diagnosed with post-traumatic stress disorder, a serious illness that cannot be treated by simply avoiding all potential reminders of the trauma.
FIRE hopes that the CLA professors and the rest of the UMN community aren’t dissuaded from continuing conversations about Charlie Hebdo or any other topic they wish to discuss. As always, those who object to the CLA’s programming or advertising should respond with their own expression, rather than enlisting the university to employ censorship.
We're joined by First Amendment attorney Marc Randazza and British journalist Brendan O'Neill to discuss the state of free speech in the United States and Europe. Randazza is a First Amendment attorney and the managing partner at Randazza...