Too often, colleges and universities shirk their commitment to diversity by invoking free speech rights to excuse abusive interpersonal and online behaviors.
Rather than focusing on healing and addressing the emotional toll caused by hateful words, administrators typically claim they cannot do anything because of the First Amendment.
This boilerplate response overlooks the safety and feelings of students of color, heightening campus tensions.
Students have reason to question First Amendment protections.
Diversity training typically focuses on protected segments of society. Title IX forbids gendersex-based discrimination in academic programs that receive federal financial aid. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, sex, religion and national origin. The Americans with Disabilities Act bans disability-based discrimination.
If a person is accused of violating those tenets, say, by making sexist remarksto a co-worker or telling inappropriate jokesto a student, intent does not excuse the conduct. The offended persons subjective viewpoint, however, is relevant, as well as an objective (or reasonable person) analysis of the incident in question. Conduct, including speech that is both subjectively and objectively offensive, may violate the law.
Then there is social media Twitter, Facebook, YouTube , et. al. whose terms of service acknowledge hate speech. Twitters policy forbids conduct that may promote violence against or directly attack or threaten other people on the basis of race, ethnicity, national origin, caste, sexual orientation, gender, gender identity, religious affiliation, age, disability, or serious disease.
Students are flummoxed when social media acknowledges hate speech, but public universities do not. After all, if former President Donald Trump can be censored by social media, why do universities let campus offenders off the verbal and proverbial hook?
The disconnect is exacerbated by ignorance of the First Amendment. Congress (meaning ouri.e., government, including public institutions) shall make no law abridging the freedom of speech. But private companies can, refusing service for any or no reason.
Lack of knowledge about censorship adds to confusion.
A survey by the Foundation for Individual Rights in Education found six out of 10 students censored themselves on such topics as racism, abortion and other challenging issues out of fear of how others would react.
A Knight Foundation survey found that students support campus prohibitions against protected speech that targets certain groups. Some 78% of students believed colleges should be able to restrict use of racial slurs. The same percentage favored safe spaces on campus designed to be free from threatening actions, ideas or conversations.
More telling, most college students believed efforts at diversity and inclusion frequently (27%) or occasionally (49%) conflict with free speech rights.
Essentially, students believe that hate speech undermines community values and violates the conscience of under-represented and protected groups.
The United States came close to adding a sixth freedom to the First, which protects free speech, press, religion, petition and assembly. James Madison, statesman, philosopher and fourth president, believed the conscience was the most sacred of all property and a natural right.
His proposal was a blueprint for the First Amendment. Its primary clause, however, dealt with religion: The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience ([emphasis added)] be in any manner, or on any pretext infringed.
That language was revised in the House to read: Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience. The reference to conscience was removed in the Senate.
Had it remained, the United States would have endorsed a concept that had secular as well as religious connotations.
As Michael J. White writes in the San Diego Law Review, freedom of conscience raises messy questions about what behavior can be tolerated in society.
Madisons view of conscience is echoed indirectly in the Universal Declaration of Human Rights in Articles 1 and 18, respectively:
Dozens of countries have based hate speech laws on freedom of conscience. For instance, in Germany, it is illegal to incite hatred against any part of the population or to insult their human dignity. A recent case involved a man who called women second-class people, with an appeals court stating this was misogynist abuse.
If such were the case in the United States, the court docket would overflow with violations.
More important, a freedom of conscience clause in the First Amendment, open to secular interpretations, would result in government determining what is and is not an affront to morality, the primary reason why the United States has no such hate speech law. Rather, the courts have held that the concept of freedom of conscience indirectly unifies other First Amendment rights.
Sharing this history, however, does little to resolve campus tension, especially when few understand applicable case law.
Universities typically do not educate constituents about protected speech. My employer Iowa State University is an exception, nationally recognized for First Amendment Days, now in its 19th year.
When public universities create speech codes, much like social media companies does, free speech proponents cite Texas v. Johnson. In that 1989 case, the Supreme Court stated that the government may not prohibit the verbal or nonverbal expression of an idea merely because society finds the idea offensive or disagreeable.
This principle allows extremely offensive speech.
States that created laws to curtail such speech eventually confront Brandenburg v. Ohio. In 1969, the Supreme Court found a Ku Klux Klan leaders rights were violated by a law that banned speech or education advocating crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform.
Advocation alone is not sufficient to suppress free speech. The real test, according to Brandenburg, is whether such speech is likely to incite or produce such action. That clause affords broad protection of free speech rights.
There are limits to First Amendment rights, of course. They include incitement likely to produce illegality; true threats to an individual or group; fighting words in face-to-face communication, provoking a reaction; obscenity; and defamation. Also, harassment may apply in an academic environment when it is so severe and pervasive that it reasonably interferes with a persons educational experience.
The American Civil Liberties Union acknowledges targeted harassment as a violation of free speech. However, it adds, merely offensive or bigoted speech does not rise to that level and determining when conduct crosses that line is a legal question that requires examination on a case-by-case basis.
The ACLU cautions administrators not to see free-speech restrictions as a quick fix to address campus tensions. Rather, it recommends they step up their efforts to recruit diverse faculty, students, and administrators; increase resources for student counseling; and raise awareness about bigotry and its history.
This essay endorses that.
In the aftermath of offensive speech, in person or online, institutions have three choices:
Without such initiatives, the odds of campus unrest escalate.
It is also important to communicate tenets of the First Amendment, beginning with the syllabus. This is required at ISU. Professors inform students on the first day of class that their teacher will honor free expression:
Iowa State University supports and upholds the First Amendment protection of freedom of speech and the principle of academic freedom in order to foster a learning environment where open inquiry and the vigorous debate of a diversity of ideas are encouraged. Students will not be penalized for the content or viewpoints of their speech as long as student expression in a class context is germane to the subject matter of the class and conveyed in an appropriate manner.
Iowa State balances that tenet with annual required diversity training focusing on the inclusive classroom. Faculty are encouraged to add course-specific diversity components.
The university also has established diversity, equity and inclusion as community values with an online site to report infractions. Best diversity-related recruitment practices also are important in searches.
Diversity planning and assessment are essential at the departmental level as well as the college and university levels, as detailed in this IHE essay.
The College of Information and Communications at the University of South Carolina developed a comprehensive diversity strategic plan approved by the faculty, which includes specific measures of assessment for each objective. For instance, in its goal to recruit a more diverse student body, the college each year tracks and compares:
Without assessment, diversity initiatives often founder.
Aspirational goals are important as benchmarks. Penn State University not only has published best diversity practices but also has outlined extensive potential ones, such as developing a shared and inclusive understanding of diversity, recruiting a diverse student body and work force, and diversifying central administration.
Similar initiatives should be mentioned whenever opportunity presents itself but especially when central administration condemns offensive but legal speech.
First Amendment seminars and webinars inform the campus community in advance about how the institution will respond to offensive speech in person, in class or online. Thats a proactive measure that fosters greater understanding of legal ramifications of constitutional precepts.
Too often, frustration about free speech rights indicates a deeper concern about equity, diversity and inclusion in institutional practices, policies and environment.
Even proactive institutions like Penn State must respond to criticism informed by data. Last year a faculty- authored report disclosed that Black professors constituted only 3.9% percent of tenured and tenure-track positions at the flagship campus. In response, the institution promised to address concerns, including comprehensive reviews of affirmative action plans and increased efforts to recruit individuals from underrepresented groups.
Every institution can do better. Deficiencies continue nationwide.
For instance, one study has shown that faculty of color and female faculty disproportionately experience stress due to discrimination and feel they have to work harder than their colleagues to be perceived as a legitimate scholar. Another study documents how representation of students of color at selective public colleges and universities has declined since 2000.
If we are to decouple First Amendment arguments at the heart of campus tension, colleges and universities must commit resources, time, effort and assessment into sustaining and realizing campus climate goals.
Otherwise, statements about free speech legalities will ring as hollow as unrealized promises to increase diversity, equity and inclusion.
- Floridas ban on bans will test First Amendment rights of social media companies - TechCrunch - May 24th, 2021
- Prince Harry's First Amendment Aversion Is Funny; the Governments That Agree Are Scary - Reason - May 24th, 2021
- Face Masks and the First Amendment - The Wall Street Journal - May 24th, 2021
- First Amendment Confusion | Opinion | Northern Express - northernexpress.com - May 24th, 2021
- The First Amendment and Mask Mandates Reason.com - Reason - May 24th, 2021
- OPINION: Prince Harry, allow me to explain the First Amendment - The Richmond Observer - May 24th, 2021
- Wicker, Hyde-Smith Cosponsor the 'Don't Weaponize the IRS Act' - Senator Roger Wicker - May 24th, 2021
- Opinion: 'Ohio will never bow to totalitarian pressures' - The Columbus Dispatch - May 24th, 2021
- If Courts Cant Agree on Who an Appropriate Person, Is for Notice of Sexual Harassment Under Title IX, How Can We Expect a Student in Crisis to Do So?... - May 24th, 2021
- Franklin Graham Can't Handle Prince Harry's Criticism of the First Amendment - Friendly Atheist - Patheos - May 24th, 2021
- Sharp increase in hate crimes has Mass. legislators looking to tighten laws - Milford Daily News - May 24th, 2021
- Tillis, Colleagues Introduce 'Don't Weaponize the IRS Act' - Thom Tillis - May 24th, 2021
- Washington: Second Amendment Banned in First Amendment Spaces After the Signing of Anti-Gun Measure - NRA ILA - May 16th, 2021
- Citing First Amendment, 4th Circuit reverses conviction for retired Air Force officer's use of N-word - ABA Journal - May 16th, 2021
- Prince Harry Calls The First Amendment 'Bonkers' and He Makes a Good Point - Showbiz Cheat Sheet - May 16th, 2021
- The First Amendment's Role in Broadcast and Online Regulation - Lexology - May 16th, 2021
- The Road Ahead for Net Neutrality and the First Amendment - JD Supra - May 16th, 2021
- Compliance Corner: A Brief Introduction to the History and Theory of Campaign-Finance Law, Part II - InsiderNJ - May 16th, 2021
- New Lawsuit Argues That D.C.'s Ban on Dancing at Weddings Violates the First Amendment - Reason - May 16th, 2021
- Commentary: It's time to revive Fairness Doctrine and expand it - Crain's Detroit Business - May 16th, 2021
- Social And Political Issues And The Workplace Implications For Employers - Employment and HR - United States - Mondaq News Alerts - May 16th, 2021
- Protesters: Changes to the Rockford City Market are meant to stymie their message - Rockford Register Star - May 16th, 2021
- Twitter's lawsuit against Texas Attorney General Ken Paxton tossed by federal judge - The Texas Tribune - May 16th, 2021
- Idaho Press Club objects to the subpoena of journalist Nate Eaton, of East Idaho News - East Idaho News - May 16th, 2021
- Trump, the Facebook Ban, and Who Decides - Bloomberg Law - May 16th, 2021
- First Amendment Versus The Civil Rights Act: A Clash Of Titans - Employment and HR - United States - Mondaq News Alerts - May 3rd, 2021
- Commentary: How to live your First Amendment freedoms - Press Herald - May 3rd, 2021
- Students and First Amendment Week: The Right to Be Loud - BVU The Tack Online - May 3rd, 2021
- The First Amendment and Social Media The Tack Online - BVU The Tack Online - May 3rd, 2021
- Justices Appear Poised to Strike Down California Law in Case with Potential to Allow More Dark Money in Politics - Law & Crime - May 3rd, 2021
- A close call this time, but lawmakers have a bad attitude on openness | Cotterell - Tallahassee Democrat - May 3rd, 2021
- The Two Teds - Episode 3 - The First Amendment - Gibson Dunn - April 19th, 2021
- MyPillow CEO Recruits First Amendment Heavy Hitters to Fight Dominion - The Daily Beast - April 19th, 2021
- Some LGBTQ groups and leaders are taking different sides in First Amendment case - Out In Jersey - April 19th, 2021
- Tenth Circuit Grants Qualified Immunity to Police Who Knowingly Violated the First Amendment - Cato Institute - April 19th, 2021
- Spencer and Volokh Discuss the First Amendment and Content Moderation on Social Media Platforms - UMass Dartmouth - April 19th, 2021
- Lecturers speak on the importance of the First Amendment in the civil rights movement - Iowa State Daily - April 19th, 2021
- Protect the police or the First Amendment? | TheHill - The Hill - April 19th, 2021
- Smartmatic Calls Bulls--t on Foxs First Amendment Argument - Vanity Fair - April 19th, 2021
- Letter: Equality Act targets First Amendment rights | Letters to the Editor | readingeagle.com - Reading Eagle - April 19th, 2021
- MLive/Kalamazoo Gazettes Brad Devereaux wins First Amendment Award for exposing closed-door meetings - MLive.com - April 19th, 2021
- The IHRA Definition of Anti-Semitism Puts Jews on the Wrong Side of the First Amendment - Jewish Week - April 19th, 2021
- Project Veritas Gonna Sue Twitter For Defamatory Section 230 Censorship And First Amendment Assault Or Something - Above the Law - April 19th, 2021
- Letter: On God and the First Amendment | Communities | mainstreet-nashville.com - Main Street Nashville - April 19th, 2021
- Justice Thomas's Misguided Concurrence on Platform Regulation - Lawfare - April 19th, 2021
- 'Hate has no home here': City of Appleton puts up sign countering sign with homophobic slur - Post-Crescent - April 19th, 2021
- Prohibited prayer and the limits of government authority even in a pandemic | Sullum - Chicago Sun-Times - April 19th, 2021
- Clarence Thomas plays a poor devils advocate in floating First Amendment limits for tech companies - TechCrunch - April 6th, 2021
- First Circuit Upholds First Amendment Right to Secretly Audio Record the Police - EFF - April 6th, 2021
- Justice Clarence Thomas Takes Aim At Tech And Its Power 'To Cut Off Speech' - NPR - April 6th, 2021
- "Fake News" and the First Amendment - University of Dayton - News Home - April 6th, 2021
- Bar owners went beyond First Amendment rights with their 'raised voices, interrupting,' AG argues - Cambridge Day - April 6th, 2021
- Clarence Thomas blasts Section 230, wants common-carrier rules on Twitter - Ars Technica - April 6th, 2021
- Drones (and the First Amendment) take on regulatory overreach in North Carolina - Chatham Journal Weekly - April 6th, 2021
- Online event examines the relationship between free speech and firearms - Nevada Today - April 6th, 2021
- Official Website for the Governor of Maryland - maryland.gov - April 6th, 2021
- Opinion: Remembering the Core Four Pillars of Journalism Amid a Pandemic - Times of San Diego - April 6th, 2021
- Tenth Circuit Misses Opportunity to Affirm the First Amendment Right to Record the Police - EFF - April 2nd, 2021
- Is There a First Amendment Right to Tweet? - JSTOR Daily - April 2nd, 2021
- Is blocking a constituent on Twitter against the First Amendment? This DC resident thinks so | The Hill is Home - The Hillishome - April 2nd, 2021
- The 6th Circuit Reached the Right Conclusion on Preferred Pronouns. Other Courts Should Follow Suit. - Heritage.org - April 2nd, 2021
- Why It's So Hard to Prosecute White Extremists - The Marshall Project - April 2nd, 2021
- Loeb School announces free spring classes and writing workshops - The Union Leader - April 2nd, 2021
- Parler Forced To Explain The First Amendment To Its Users After They Complain About Parler Turning Over Info To The FBI - Techdirt - March 31st, 2021
- Terrorism and Other Dangerous Online Content: Exporting the First Amendment? - Just Security - March 31st, 2021
- The First Amendment: Rarely Popular, Always Necessary - The Dispatch - March 31st, 2021
- The First Amendment: What It Is & What It Isn't - WSHU - March 31st, 2021
- Drawing a Line Between Internet Trolls and the First Amendment - Government Technology - March 31st, 2021
- BREAKING: ACLU Representatives Join Unprecedented Podcast to Discuss HUGE Ramifications of Creasy/Lindenbaum/TCPA on First Amendment Rights - Lexology - March 31st, 2021
- Courts: Bystanders have right to record police under the First Amendment - Newsday - March 31st, 2021
- RCFP urges court to order Texas AG to stop investigating Twitter - Reporters Committee for Freedom of the Press - March 31st, 2021
- Pronouns in the University Classroom & the First Amendment - Reason - March 31st, 2021
- Matt Taibbi: A Biden appointee's troubling views on the First Amendment - National Post - March 31st, 2021
- Pronouns and the Philosophy Professor - The Wall Street Journal - March 31st, 2021
- Letters to the editor | Opinion | journalpatriot.com - Wilkes Journal Patriot - March 31st, 2021
- Jane Briggs-Bunting, who championed the 1st Amendment, dies at 70 - Detroit Free Press - March 31st, 2021
- Was a Trump critic's 1st Amendment violated by Yale? We're about to find out. - MSNBC - March 31st, 2021
- The Cyberlaw Podcast: Can Editorial Middleware Cut the Power of the Big Platforms? - Lawfare - March 31st, 2021
- Judge In Chauvin Trial Rules That Underage Witnesses Can Testify - NPR - March 31st, 2021
- An Alternative to Impeachment: New Bill Helps Enforce Accountability for Capitol Riots - Just Security - March 31st, 2021