The complement of controversy: free speech

University “safe spaces” create a new conversation about free speech

Photo by Laurel Conrad (Legal Insurrection).

The first 10 amendments to the Constitution make up the Bill of Rights.  These amendments were added in direct response to several states’ desire for greater constitutional protection for individual liberties.  These member states were worried that such protections would not be offered to the citizens and that the Constitution would simply fall hand in hand with English style rule.  The amendments were born with the idea that they would be used to protect oppressive behavior toward citizens by government actors.  In protecting the right to free speech, the First Amendment is central to the topic of discussion surrounding the recent development of “safe spaces” at numerous universities.

[T]he amendments were the line in the sand drawn to stop the government from acting against the people

The amendments were created to be a defense against the federal government.  The right to free speech was the right to denounce the government.  The right to keep and bear arms was the right to stand up against the government.  The right of a fair trial was the right to be protected from corruptive judicial officers.  In other words, the amendments were the line in the sand drawn to stop the government from acting against the people.

The amendments in that regard are better looked at as a wall built around the freedoms of each American citizen; a wall that is unwavering, unbreakable and built with the strong foundation of liberty and freedom.  The term “wall” is used because walls are also unmovable.  Imagine each American citizen within their own castle and surrounded by their own wall.  Each and every individual could practice their own religion, say whatever they wanted or acquire an arsenal as big as they wanted, without government interference, so long as they did not bother the castle of another.

University of Missouri “safe space”

A number of universities have recently experienced students using their First Amendment rights as what some describe as a sword instead of a shield. A well known example is the “safe space” created at the University of Missouri.  Students and faculty of the school formed a human wall in order to keep the media out of the tent city that was formed in protest of race inequality on campus.  The human wall informed the media that they were not welcome inside the wall and that they had no right to take their picture.  One YouTube video shows an ESPN photographer being pushed out of the tent city by a crowd of supporters.

The media were not the only target of this movement.  A large group of football players refused to play unless the president of the university resigned.  The players called for the resignation in response to Jonathan Butler’s hunger strike.  Butler called for the resignation because the president had not acted against prevalent racism around the university.

The students ask for action, however what could the president do? As a public university, the president must follow the laws set for any public official.  Within that restriction comes the inability to restrict speech.  He could not pass a campus restriction on speech because of the protection of the First Amendment.

What the students involved want is a safe society, one that does not accept racism, sexism or homophobia.  Their goal is a noble one and one that is sought by more than just the group at the University of Missouri. Yet some people argue that student’s attempt to create a “safe zone” successfully converted a right of expression into a blanket of oppressive silence.  The zone converted the right of free speech into the right to unquestionable free speech.

Yale University’s emails

Since the protest in Missouri, other student bodies have expressed concern on other racial issues on campus.  At Yale University, minority students are commonly mistaken for workers at the college or hit with racial bias by police and fellow students.  The tension finally came to a peak when a professor emailed the school expressing that all students should be more accepting of provocative Halloween costumes.  Her email came in response to an email from school administration encouraging students to be respectful with their costume choices.

As a private university, Yale has the power to restrict Halloween costumes.  Instead, they acted as an advisor instead of an administrator.  The administration acted in the best form that they could by not “regulating” the students in this free society while encouraging respectful behavior toward their peers.  The administration understood that individuals cannot be forced to believe in equality, even though it is a noble thought.

The problem with this thought is that a society cannot outlaw everything that may go against their beliefs without effectively silencing the free speech right of another.

The right to free speech is paramount in the democratic society found within the United States.  The desire of some students is not a new thought, but it is a dangerous one.  In North Korea there is no freedom of speech nor is there a freedom of the media.  Under this regime, a society could easily make racism, sexism and homophobia illegal and punishable by death.  The society could from laws against bullying, against hate speech and truly create a peaceful society ruled by order and discipline.  The problem with this thought is that a society cannot outlaw everything that may go against their beliefs without effectively silencing the free speech right of another.

If the government had this power, the majority would have infallible control over every thought and societal norm.  There would be no outcry for or against abortion, there would be no criticism over drone strikes on American soil and there would be no two party system.  If the “best thought” always wins over the less desirable thoughts in a society, there will effectively be no freedom for the minority.  The principles established in the founding of this country would be cast aside and replaced with a totalitarian government.

This radical change starts with the youth, such as college students.  Many individuals are bullied in college, many hateful things are said that are gender, racial, and sexual preference neutral.  Where bullying may be a terrible thing, if colleges are to begin removing “negative speech” from their allowed vocabulary, we may easily see the destruction of the First Amendment.

As Justice Brandeis stated in Whitney v. California, “no danger flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion.” He further concluded, “the remedy to be applied is more speech, not enforced silence.”

Justice Brandeis highlighted that more speech is paramount to creating a more accepting society.

Justice Brandeis saw the dangers of limiting the right of free speech.  He also saw the potential benefit that more speech could give to the situation.  There’s no doubt that restricting hate speech is an easier way to stop it than attempting to discuss the difference in acceptance and racism, but the right of free speech does not revolve around simplicity.  The right is to protect all views, and not just the socially acceptable one.

Justice Brandeis highlighted that more speech is paramount to creating a more accepting society.  This increased speech includes the encouragement from Yale administration and the email from the professor in response.  The great thing about these differences in views is that the two views highlight that every opportunity to speak, even in a free society, should be balanced by the individual who make the decision.

Similar to Missouri, both threats and racial insensitivity have created a hostile environment.  The administration has every right to denounce the negative speech without restricting it.  The students cannot get regulations against speech, but any support against racism by the college employees would not be considered violating free speech, but instead their actions would bolster it in the spirit that Justice Brandeis accepted with open arms.  The right to speak opens the door for counter speech.

The right to speak contains the right to denounce racial speech, and in doing so, the opportunity to open a door to conversation.  By unanimously restricting one, the other will eventually end up restricted.  Support, on the other hand, is not the same as a restriction.

Missouri could have issued support to the minority students under the constitution as the Yale administration; however, since they are a public university, there could not be a punishment without a blatant violation of the First Amendment.  Universities walk a fine line when it comes to acceptance and the ability for student voice.  When there is a controversy and both sides voice their issue, the process is working; it is when there is silence that the purpose of free speech has failed.

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About Cyrus Corbett V, Associate Editor Emeritus (16 Articles)
Cyrus Corbett V is a 2017 graduate of Campbell Law School and served as an Associate Editor for the Campbell Law Observer during the 2016-2017 academic year. He is from Murrells Inlet, South Carolina and received his Bachelors in Arts in Government from Wofford College in 2014. Since July after his first year of law school, Cyrus has interned at the North Carolina Retail Merchants Association in downtown Raleigh focusing on the Retail Merchants Handbook. His interest is in jurisprudence of the law and negotiation/ mediation.
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