Drawing the line of free speech

Two events have focused the SUNY Fredonia community on racism. The events illustrate what speech the First Amendment protects and why it does so.

A few months ago at an off-campus event, a Fredonia student’s boyfriend wore blackface as part of his Halloween costume. He also wore a multi-colored wig, so his artistic vision was hard to understand. The student posted a picture of the two of them. An uproar followed and other students allegedly harassed her. SUNY Fredonia’s president, Virginia Horvath, wrote a note to the college community stating, “The student who posted the picture has been counseled, as have those who have been described as harassing her.” Fredonia’s Chief Diversity Officer, Bill Boerner, reported that the counseling was voluntary.

A couple of weeks ago, a white Fredonia student was allegedly sucker punched by a black person. He posted a picture of his bruised and bloody face. The student then posted a racially charged derogatory statement on Snapchat. On Facebook, students called for the college to punish him, made fun of him for posting a picture of his bloody face as a pathetic appeal for sympathy, explained that they were laughing because he got beaten up and was crying on social media, threatened violence, and declared that this sort of attitude was why at least one minority student left Fredonia.

In response to the Snapchat post, Horvath sent out two public statements and announced that a third was on the way. She wrote, “The Office of Student Conduct and the Office of Diversity, Equity, and Inclusion have continued to gather information and to confer with campus leaders, SUNY legal counsel, and SUNY leaders as we go forward.” She then said that addressing this event is a priority. The student who wrote the Snapchat post wrote an apology and announced that he will enter counseling.

Horvath’s post did not address the students’ Constitutional ignorance, glee over violence, or threat of violence. The sucker punch likely will not get much attention, despite its being a felony. The call to gather information is disturbing. It has a big brother feel to it.

The Snapchat post is clearly protected by the First Amendment. SUNY Fredonia is a state institution and so must satisfy the First Amendment right of free speech. There are exceptions to the First Amendment such as those made for fighting words, clear-and-present danger, and harassment, but they do not apply here.

The Constitution does not protect fighting words. These are face-to-face communications that will clearly provoke an immediate-and-violent reaction from the listener. The classic statement of this is found in the Supreme Court holding in Chaplinsky v. New Hampshire (1942). Because the student did not make a face-to-face communication and there was no threat of immediate violence, the fighting-words exception does not apply.

The clear-and-present danger Constitutional rule allows the government to shut down speech when the speech is intended and likely to produce imminent lawless action. See, for example, Brandenburg v. Ohio (1969). This wasn’t true here.

Nor is the post harassment. The Supreme Court in Davis v. Monroe County Board of Education (1999), required that university rules prohibiting harassment respect the right to free speech. To constitute harassment, the speech must be so severe, pervasive, and objectively offensive that it effectively prevents the victim from getting an educational opportunity or benefit. This requires that the speech be aimed at an individual and be so severe and pervasive that it prevents someone from getting an education. Again, this wasn’t true here.

The First Amendment also protects Halloween costumes. This can be seen in Schact v. United States (1970), where the Supreme Court has said the First Amendment protects wearing military uniforms at protests. Similarly, the Fourth Circuit said that the First Amendment protects allegedly racist and sexist costumes and skits at state universities. See Iota XI Chapter of Sigma Chi Fraternity v. George Mason University (1993).

Controversial speech is worth protecting. First, people have a right to shape their own lives according to their own vision. They can do this better if they consider different ideas about family, politics, religion, and work. This is best accomplished through dialogue, sometimes with those who have very different ideas. Second, John Stuart Mill argues that just as the marketplace of goods tends to lead to better and cheaper goods being bought and sold, the marketplace of ideas leads to true and better justified ideas being accepted and disseminated. John Stuart Mill argues that even false speech will sometimes lead people to discover why their beliefs are true, that is, what justifies them.

Honest and in-depth discussions of the two events might, for example, bring up the issue of the right of free speech and why it matters. It might also bring up awkward issues such as the problem of black violence and black interracial violence. A sucker punch is a serious matter. The facts here are well-known, but blacks commit more murders and robberies than whites and roughly half as many rapes and batteries. Here I am relying on 2009 arrest records from the U.S. Census Bureau. This is significant given that whites are nearly six times more numerous. In addition, there is some evidence that blacks are targeting whites. For example, Columbia University economists Brendon O’Flaherty and Rajiv Sethi found that in single-offender robberies, blacks are fourteen times more likely to rob whites than vice versa. Such discussion might lead to investigating whether these crime patterns are due to poverty, racism, culture, or genetics.

Such an honest and robust discussion might also lead to a discussion of when and why certain words are offensive. The n-word is used by such artists as Jay-Z, Notorious B.I.G., Tupac Shakur, Snoop Dog, and 50 Cent. It is an interesting discussion as to why their use of it is less offensive than the Snapchat post. It might raise the issue what is offensive and why.

Stephen Kershnar is a State University of New York at Fredonia philosophy professor. Send comments to editorial@observertoday.com