FIRE readers will remember that last week FIRE sent a letter reminding Nicholls State University President Jay Clune of exactly what freedom of speech protects after he sent an email to students alleging that “free speech does not protect hate speech.” In his email, Clune promised the “swiftest, harshest action allowed by law if any member of our campus community is found acting or communicating in a manner that does not support our values.” As FIRE explained in our letter, the “harshest action allowed by law” doesn’t include punishing students for hateful speech alone.
Now, Clune has walked back his original statement. In an interview with local newspaper The Houma Courier, Clune responded to the fact that free speech does, in fact, protect most “hate speech,” as long as it doesn’t fall into another, narrowly-defined, unprotected category, like true threats or incitement:
“I don’t think our students who were protesting inequality, discrimination and injustice really wanted a teaching moment on the First Amendment,” Clune said. “We understood that we were making a moral statement, a moral framework, rather than a legal framework.”
Clune’s response is baffling. After all, it was his own email to students on June 6 that promised the swiftest and harshest action allowed “by law” for offensive speech. If students weren’t looking for a teaching moment on the First Amendment, perhaps Clune — the leader of a government institution — shouldn’t have given them an incorrect one to begin with.
As FIRE explained in our letter, the law is clear that public universities cannot punish students simply for speech others may find hateful. Public universities have an obligation to uphold freedom of speech — regardless of what their other policies might say — and if they do not, they open themselves up to costly lawsuits.
In fact, the University of Louisiana System, which Nicholls State is a part of, explicitly recognized this by reaffirming its commitment to free speech in 2018 when it adopted a version of the Chicago Statement. (The Chicago Statement is the gold standard for institutional policy statements on free expression.) The system’s statement reads, in part:
All institutions shall strive to ensure intellectual freedom and free expression. It is not the proper role of an institution to shield individuals from speech protected by the First Amendment of the Constitution of the United States of America and Article I, Section 7 of the Constitution of Louisiana, and other applicable laws, including without limitation ideas and opinions they find unwelcome, disagreeable, or even deeply offensive.
Had Clune intended to give only a moral message on free speech, rather than a legal framework, he would have been better off telling students that when they see or hear speech they find deeply offensive, the First Amendment empowers them to speak out against it, respond to it, and vigorously pursue it in the public sphere. Such a message would be far more consistent with the spirit of free expression than Clune’s threat to utilize the full power and apparatus of the state to shut down student speech.
You can read FIRE’s full letter to Nicholls State University here.