Civil libertarians have come to expect that in the wake of a tragedy, some will call for the curtailment of freedoms that they perceive to have led to that tragedy. As if on cue, a group of 12 Washington state legislators served up a whopper last week, demanding that Washington State University de-recognize the WSU College Republicans student organization because of the constitutionally-protected expression of the group and its members.
The controversy surrounding the WSU College Republicans began brewing in earnest after a video went viral showing now former WSU College Republicans President James Allsup marching in Charlottesville as part of the “Unite the Right” rally, waving a Confederate flag and yelling profanities at bystanders.
Allsup later resigned, and WSU President Kirk Schulz issued a statement proclaiming that “[t]he attitudes, the behavior, and the language expressed in the video are not acceptable. Individuals with those beliefs are not welcome in our community.”
The legislators were not satisfied with the statement, and demanded action in their September 14 letter to Schulz. Citing a “hostile climate” allegedly created by hateful beliefs being allowed on campus and given a “platform” by virtue of of its recognition as a student organization, the legislators wrote: “We urge you to withdraw official recognition and support for [WSU College Republicans] until actions have reversed the climate and harm caused by this RSO.” Seattle Rep. Gerry Pollet, the letter’s author, elaborated to the press that WSU should establish “a clear definition of hate speech.”
To be clear: as distasteful and offensive as Allsup’s expression might have been, it is entitled to full constitutional protection. He was participating in political expression, which the Supreme Court observed in R.A.V. v. City of St. Paul (1992) “occupies the highest, most protected position” under the First Amendment. Despite the ill-fated quest many have embarked upon to legally distinguish “hate speech” from free speech, the Supreme Court has repeatedly reminded us that the First Amendment protects even hateful expression. Recently, the Court reiterated this fundamental principle in Snyder v. Phelps (2011):
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.
WSU is free to technically define and condemn hate speech however it would like, as is any person. However, WSU cannot enforce its subjective definition under threat of punishment without violating the First Amendment.
The legislators’ main request — that WSU shut down the College Republicans — is starkly unconstitutional. As FIRE has reminded administrators time and again, the First Amendment prohibits public colleges and universities from refusing to recognize (or de-recognizing) student organizations because of the views they express, or because similar groups elsewhere have engaged in violence.
This is not a novel issue; the Supreme Court squarely decided it decades ago in Healy v. James (1972). In that case, Central Connecticut State College denied recognition to a proposed chapter of Students for a Democratic Society based, in part, on the college president’s view that the group’s “philosophies . . . were counter to the official policy of the college.” Holding that the college’s denial of recognition to SDS was unconstitutional, the Court held:
The mere disagreement of the President with the group's philosophy affords no reason to deny it recognition. As repugnant as these views may have been, especially to one with President James' responsibility, the mere expression of them would not justify the denial of First Amendment rights.
In the following decades, the Court further protected the expressive rights of student organizations, holding that when mandatory student fees are used to create a diverse forum for student organization expression, they must be distributed in a viewpoint-neutral manner. See, for example, the court’s holding in Board of Regents of the University of Wisconsin System v. Southworth (2000) that “[w]hen a university requires its students to pay fees to support the extracurricular speech of other students, all in the interest of open discussion, it may not prefer some viewpoints to others.” The Supreme Court reiterated this point in Rosenberger v. Rector and Visitors of the University of Virginia (1995), holding that denial of financial support for student religious group violated the First Amendment and observing that “[f]or the University, by regulation, to cast disapproval on particular viewpoints of its students risks the suppression of free speech and creative inquiry in one of the vital centers for the Nation’s intellectual life, its college and university campuses.”
But the legislators apparently see things differently, blithely stating: “This is not a question of free speech on campus.”
One might understandably wonder how this is not a question of free speech on campus.
The legislators’ first answer is: “The students are free to voice their views with the same access to campus as anyone else.” But there are two reasons that this answer is insufficient.
One is that — again — the Supreme Court addressed this very issue in Healy, holding that there is “no doubt that denial of official recognition, without justification, to college organizations burdens or abridges” students’ First Amendment rights, because with official recognition often comes the ability to use campus facilities and bulletin boards, access to campus media, and other resources for communicating with, and advertising to, the campus community.
Rep. Pollet inadvertently made exactly this point when he acknowledged that the precise dollar amount of funding that the organization get is irrelevant; in his mind, the problem is that WSU College Republicans get a “really significant subsidy” in the form of free meeting space, printing, a faculty adviser, and “access to the student body…” Unfortunately for Rep. Pollet, the existence of that subsidy is why taking it away is unconstitutional.
The second reason is that even assuming students would not be hindered in their ability to engage in their expression on campus without recognition — a dubious claim — the Supreme Court in Schad v. Mount Ephraim (1981) expressly held that “one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.” Put simply: the ability of WSU College Republican members to express themselves elsewhere on campus does not make it permissible for WSU to de-recognize the group. That act would still violate the First Amendment.
The legislators’ letter also cites to other expressive activity (or as the letter calls it, “hate speech”) by the WSU College Republicans to bolster its argument that the College Republicans created a “hostile environment,” purportedly justifying the legislators’ demand that WSU de-recognize the group. In particular, the letter cites social media posts from the new WSU College Republicans president — in which he wished that he was in Charlottesville during August’s rally, and proposed a theory for the recent spate of political violence — as well as Allsup’s comment that a “suitable triggering replacement” would be found after a planned talk from Milo Yiannopoulos had to be canceled due to unsafe road conditions.
To be sure, WSU does have an obligation to address discriminatory harassment on campus, but the relevant legal standard sets a high bar, and is not drawn from workplace harassment law, as the legislators suggest, but rather from the Supreme Court’s definition of discriminatory harassment in the educational context, found in Davis v. Monroe County Board of Education (1999).
In order for student behavior to constitute actionable harassment under Davis, it must be (1) unwelcome, (2) discriminatory on the basis of gender or another protected status, (3) directed at an individual, and (4) “so severe, pervasive, and objectively offensive that it can be said to deprive the victim of access to the educational opportunities or benefits provided by the school.” By definition, this includes only extreme and usually repetitive behavior — conduct so serious that it would prevent a reasonable person from receiving his or her education. In a July 28, 2003, “Dear Colleague” letter sent to all college and university presidents, the Office for Civil Rights of the U.S. Department of Education, which is tasked with enforcing anti-discrimination law, made clear that harassment “must include something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive.”
None of the expression identified by the legislators comes close to discriminatory harassment. At most, they constitute deliberate attempts to offend or provoke others. What the legislators failed to understand is that the freedom to provoke and offend is a feature of our model of free speech, not a bug, and is essential in the quest for ultimate truth. The Supreme Court recognized as much when it wrote in Terminiello v. Chicago (1949):
[F]ree speech . . . may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.
In discussing matters of societal importance, many of which are highly controversial, one would be hard-pressed to find an opinion that does not deeply offend someone. And that’s exactly the point: we don’t curtail hateful speech, and we don’t allow the government to discriminate based on viewpoint, because what is hateful to one person is not hateful to another; there is no way to make meaningful and principled distinctions — it’s all incontrovertibly subjective.
Another reason the First Amendment does not permit viewpoint discrimination or bans on “hate speech” is because the power to censor doesn’t end with the immediate issue; it provides a weapon to “the next guy.” Lest anyone think such fears are hypothetical, remember that just this week Wisconsin state Senator Steve Nass called for the University of Wisconsin - Madison to expel a student for making a video touching on police brutality, which depicted police officers as pigs who are later beheaded by a masked black man, calling it “vile,” “racist,” and “anti-police.” Or how seemingly every year a legislative body in New York attempts to pressure the City University of New York system to banish Students for Justice in Palestine on the grounds that they foment anti-Semitism.
Calls for disciplining students or student organizations, or stripping an organization of recognition, are short-sighted in that they grant the institution, which is both sensitive to public pressure as well as subject to leadership changes, the ability to censor whatever expression it subjectively determines is unwanted at the time. Anyone who values political activism — and hopefully legislators do — should be reluctant to go down that road.
We will be watching WSU closely to make sure that it stands up for its students’ constitutional rights, even when politically difficult.