At the U of M, a lesson in free speech

It’s safe to say that the residents of Skokie, Ill., were not at all happy in 1977 when Frank Collin, the leader of National Socialist Party of America, announced plans to march through the city. And why would they be? The disgusting display of Nazism was aimed directly at the city’s Jewish population, where one in six was either a Holocaust survivor or related to one.

Eventually, the Illinois Supreme Court, the U.S. Court of Appeals, and the U.S. Supreme Court all decided that it was unconstitutional to prevent the Nazis from marching.

Justice Louis Brandeis, who knew a few things about what the framers of the Constitution had in mind when they wrote the First Amendment, said they knew that “fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones.”

Like the people of Skokie, some immigration activists and student groups at the University of Minnesota were unhappy with the messages painted on the Washington Avenue Bridge by a group with opposing views, in this case the College Republicans who want a wall built along the country’s southern border.

“This political campaign is turning people against one another and is using the tool of dehumanizing other human beings for political gain,” said Emilia Gonzalez Avalos, of NAVIGATE MN, at the protest, according to MinnPost. “Your free speech hurts … and marginalizes people. There [should be] a line.”

In fact, there is a line. Just ask the people of Skokie, the Illinois Supreme Court, the U.S. Court of Appeals, and the U.S. Supreme Court. A political message that people may find offensive doesn’t cross it.

University of Minnesota President Eric Kaler, whose job it is to educate the young minds of a free country, tried to do just that when he sent this letter to the student body over the weekend.

Dear Twin Cities campus community,

During the annual “Paint the Bridge” event, an opportunity for registered student groups and University departments to promote their groups by painting a panel on the Washington Avenue Bridge, one panel assigned to a student group has received attention.

The panel includes the phrase from Donald Trump’s presidential campaign, “Build the wall.” While this is protected as free, political speech, we have heard from members of our community who find the phrase hurtful, offensive, anti-immigrant, and anti-Latinx.

People in our community may disagree with the sentiment expressed. However, while the University values free speech, the subsequent vandalism of the panel is not the way to advance a conversation.

The University of Minnesota supports a campus climate that welcomes all members of our community and our values of equity and diversity, but that also ensures the free flow of ideas, even those that are offensive to some.

As students and our community participate in responses to this and future issues, I urge all of us to be respectful and thoughtful in our approach. We encourage all who find some protected speech distasteful or offensive to engage in more protected speech.

Sincerely,
Eric W. Kaler
President

One sign at the scene of the vandalized political messages said, “hate speech is not free speech,” but for purposes of the Constitution, it’s not much of a legal argument. While there is a recognized First Amendment exception for fighting words, “hate speech” doesn’t have a fixed legal meaning.

The people of Skokie didn’t take the Nazis lying down. The built a memorial to the victims of the Holocaust along the route the Nazis intended to march. Their speech was more powerful, just as the framers of the Constitution intended.

Opponents of a political view at the University of Minnesota also have significant power at their hands. They can vote.

  • wjc

    Thank you President Kaler. You hit the nail on the head.

    • MrE85
      • But, much to our chagrin, we live in a community that protects their speech.

        Can we find logic in a policy that protects words that blatantly dehumanize vast swaths of America’s population? No.

        This is beyond frightening.

        • MrE85

          Yeah, the kids at that paper have some growing up to do, and it shows sometimes in their editorial positions.

          I may hate Illinois Nazis as much as the next guy, but I understand the reasons why their rights are protected. Maybe these kids will too, someday.

          • Let’s hope the editorial writer is a freshman

        • Mike Worcester

          Oh dear….I think someone(s) on the Daily staff need a remedial course on the purpose of the First Amendment, since, you know, it kind of applies to college newspapers also.

          • I would ask them one question: “Have you ever heard of Jay Near?”

            If the answer is no, they’re banned from ever setting foot in a newspaper.

        • Fred, Just Fred

          This is the direct and predictable result of the political agenda your opinions frequently appear to support.

          Years of leftist socio-political indoctrination in the public schools, in the media and in popular culture have reaped a generation of Americans that have no idea what this country was founded on, or what it stands for. They are rebelling against what they have been told it stands for without the intellectual equipment necessary to verify it for themselves.

          During the 60’s, students were calling for a change in US policy; they were asserting their constitutional right to protest and redress. Today, calls to dismantle the US Constitution completely are common on campuses. They are a lost generation like no other.

          I’m unsure whether to take your fear at face value, but if I do, I have to wonder how you could have not detected the wind direction until now.

          • I’m sorry, I simply don’t the energy today to engage in a discussion of an argument based on so many incorrect assumptions masking as knowledge. But go for it if it makes you feel good.

          • Fred, Just Fred

            You brought the topic up, but if it’s too much to discuss, OK with me. I’ve made my informed opinion known.

  • Rob

    As that august First Amendment scholar, Mr. T, was fond of saying, “I pity the fools; I do not get angry at them for expressing their viewpoint, nor do I attempt to curb their free expression.”

  • Josh

    How would this be a First Amendment issue? I am fine with the decision to keep it, but shouldn’t the U of M have some discretion as to what gets painted on it’s buildings? It feels quite different than a march.

    • DKinMN

      Yeah, this whole issue isn’t so easily wrapped up. For example, could those who didn’t like the panel have simply sat in front of it? It seems that this is permissible. But, this case of vandalism isn’t? Not sure I follow the logic.

      • BJ

        Standing in front of it is not destroying it, while destroying it is.

      • It’s quite easily wrapped up, actually. But I’m not seeing the distinction you’re attempting to draw between an act of vandalism v. a right to assemble.

        • DKinMN

          I think I’d be open to the argument that there isn’t a clear, bright line between vandalism and political speech. I’m also (ethically, not necessarily legally) not entirely on board for hiding behind the 1st Amendment to squash acts of protest. Even if this protest walks uncomfortably into vandalism.

          I think our adherence to these definitions isn’t as immutable as some would claim. If, for example, there were a group whose purpose was to advocate for something more universally disliked, perhaps forced abortions for illegal immigrants, I imagine the arguments would shift.

          I get that there is a validity to, “Vandalism is vandalism is vandalism,” but I don’t think I would agree with that argument.

          • BJ

            Your right to free speech ends when you stop my right to free speech.

          • Exactly. I’ll be responsible for what speech I see and hear. I’m not assigning that task to anyone else. That’s what book burnings do.

          • DKinMN

            Did the vandalism stop free speech? Was it not also a form of speech?

          • No, criminal acts are not protected speech. C’mon, people, we’re supposed to know this stuff. Now you’re just making me depressed.

          • DKinMN

            I do know this stuff. You reference the right to assemble, but we clearly have limits there as well.

          • “I do know this stuff.”

            Give me an example of a criminal act being protected speech.

            Just to forestall what I know some people might be thinking, nope, R.A.V. v. City of St. Paul, the landmark SCOTUS case, did not hold that burning a cross was protected speech.

            In fact, now that I think more about it, R.A.V. v. City of St. Paul was the case that obliterated the idea that the First Amendment has a hate speech exemption.

          • Mike Worcester

            Did you ever read Ed Cleary’s book about his work on that case? It was fascinating and really tried to spell out the difference between punishing actions (such as vandalism) and punishing a thought. I get that it is not always easy for people to separate the two, but what RAV showed (along with Falwell v Flynt) is that being disgusted by something is not always enough.

          • DKinMN

            I can know the case law and still find it lacking.

          • DKinMN

            The University did not censor the sign. An individual painted over a painted sign. If that individual were brought to court, they’d be tried and likely convicted of vandalism.

            That doesn’t preclude the argument that there is validity of a particular form of vandalism as a form of speech.

            I think it’s interesting that we would protect a de facto permanent censoring of this portion of the wall if it took the form of an assembly but not if it takes the form of other paint. You can justify this with your reading of the Constitution or current case law, but I’ll happily wiggle around and test that, and happily point out the flexibility of that case law over time.

          • // That doesn’t preclude the argument that there is validity of a particular form of vandalism as a form of speech.

            I can’t think of any particular argument where it’s been held that a criminal act is protected speech.

          • DKinMN
          • I’m thinking more of a crime that suppresses speech and is itself protected speech.

          • DKinMN

            I suppose what I’m driving at (and allowing myself to be diverted from) isn’t that this is LEGAL. It’s that what is legal isn’t always right, and what’s illegal isn’t always wrong.

            The Boston Tea Party was criminal destruction of property. We revere those people. And so on. I think the vandal should face consequences if caught, but I don’t think vandalism is so abhorrent as to be excluded from discussions of political speech, same as the Boston Tea Party is not dismissed by you and others as a simple criminal act.

          • I’m mostly concerned how many people, especially young people, seem so totally oblivious to the value of free speech. That’s what Kaler is getting at. I suspect it fell on deaf ears.

            The Boston Tea Party wasn’t a speech issue and obviously wasn’t protected, coming as it did years before the country was founded. In modern day comparisons, it somewhat parallels the Animal Liberation Front .

          • Laurie K.

            You are certainly entitled to your opinion. However, the story was about the fact that whether we like it or not, the message that was vandalized was part of our right as U.S. Citizens to protected speech. Your opinion is just that – an opinion, meanwhile Kaler is reminding students that LEGALLY, the message should not have been vandalized.

          • DKinMN

            I actually need to make it much more clear: I never said that vandalism should not be punished due to it being free speech. I have pointed out cases where that’s happened (on request). My point is slightly more nuanced than that.

            I don’t think we should go straight to LEVEL 5 PEARL CLUTCHING when a sign is illegally vandalized. What is legal isn’t always right, and what is illegal isn’t always wrong.

            I can agree that something is illegal without agreeing that it’s 100% wrong and inexcusable.

          • I haven’t read the decision — I don’t find it in the link — but it appears that particular case isn’t so much saying that the criminal act — vandalism — is protected speech, though. It’s taking issue with enforcement based on content. That’s what also did in the sign ordinance in Arizona in a SCOTUS case a year or so ago (Gilbert, Arizona comes to mind although i’m not sure if that’s where it was). Basically it’s the government regulating speech based on content that runs afoul of the law. It didn’t say that the crime was protected speech. But, again, I haven’t seen the ruling.

          • Rob

            When you commit vandalism against someone else’s protected speech, the vandalism ain’t protected speech.

          • I suppose you could but it doesn’t matter whether you do from a constitutional perspective. A lot of people don’t agree with same sex marriage as a constitutional right but it’s still irrelevant that they do from a constitutional perspective.

          • Rob

            The only limits on free speech and the right to assemble are time, place and manner restrictions. Restrictions on content are almost always held to be unconstitutional.

          • There’s “but it’s REALLY disgusting” exception to the First Amendment. If there was, the Westboro Baptist Church would be gone long ago.

            Keep in mind — again — what one of the protesters said:

            “Your free speech hurts … and marginalizes people. There [should be] a line.”

            No, there shouldn’t. And there are dozens and dozens of cases from the Supreme Court that say exactly why

          • DKinMN

            I think there is a line. Culturally, socially, sometimes even legally. Whether that’s good or bad is a fine discussion, but I think it’s disingenuous to say one doesn’t exist. We don’t always agree where it is, but we clearly have lines.

          • The reason I say it doesn’t exist is because IT DOESN;T EXIST.

            The Constitution is a legal document governing every law in the United States. It’s not some social media nonsense that has cultural and social exemptions.

            Start citing some Supreme Court or appellate court decisions for some of these assertions and maybe we can talk.

            The Westboro Baptist Church gets to hold up a sign that says “God Hates Fags” and it doesn’t matter how much that hurts you or anyone else. That. Is. Protected. Speech.

            As a matter of behavior, that may cross some squishy line but that’s completely irrelevant from a constitutional point of view.

          • DKinMN

            Social and cultural norms aren’t always apparent in case law. They’re governing the things we do and don’t do every day, and I don’t reference court cases to make those decisions.

          • What decisions YOU make or don’t make are irrelevant from a constitutional perspective. There’s no cultural norm exemption to the Bill of Rights.

          • Rob

            Just don’t do anything unconstitutional.

          • DKinMN

            http://fox5sandiego.com/2013/07/01/man-who-wrote-protest-messages-in-chalk-not-guilty-of-vandalism/

            This case didn’t make it that far. But I wonder, would you feel differently if they had used chalk?

          • There’s almost no scenario I can think which I would feel that suppressing speech is a good thing. If that’s your question.

          • Tim

            It doesn’t “walk uncomfortably” into vandalism, it is vandalism. I don’t see how the bright line isn’t clear. How is it ambiguous? I say this as someone who doesn’t agree with the panel in the slightest.

          • Rob

            If it walks and talks like vandalism, it’s vandalism.

          • DKinMN

            There are sooooo many examples of “criminal” protest. Illegal assembly, destruction of property, chaining yourself to construction equipment.

            I can agree that these things are illegal while not agreeing that they are so deplorable as to be 100%, unequivocally wrong.

          • I’m not sure how the discussion is evolving to whether criminal acts are a valid form of protest. The question at hand is about the value of free and protected speech.

            Increasingly, I think, there is a tremendous lack of understanding about the importance of a free society. That’s what Kaler was saying.

            None of this, of course, is new. A lack of comprehension about the Constitution — not from a LEGAL standpoint but from its importance to guide a free society — has been well documented in the last few years. Absent that understanding, it’s hard to see how a society CAN remain a free one.

            The erosion of privacy in the U.S. is a perfect example of this.

            You may recall immediately after 9/11, politicians moved quickly to encroach on areas of civil liberties. Americans responded to the alarms by saying “if you’re not a terrorist, what’s the problem?”

            Americans are fools when it comes to understanding the value of rights in a free society.

    • The U of M is a government institution sponsoring an event at which posters and messages are expressed under its auspices on a public way.

      • Josh

        But the U already put restrictions on what could be painted. If they had extended that to “No political messages” that would have been unconstitutional?

        • Rob

          Schools in particular have a fair amount of latitude in these situations. For example, if a participating student group wanted to put up a banner that said “F#=k president Kaler,” the school would probably be within its rights to preclude the banner. If the group wanted to put up a banner that said “Kaler’s tuition hikes are excessive,” the school would have a much harder time justifying a prohibition of the banner.

    • Rob

      The U of M, as a government entity, is proscribed by the First Amendment from holding an all-student-organizations event in which the school picks and chooses which student groups can participate/express their opinions.

  • Ben Chorn

    I believe this is the same display that has “college” misspelled, correct?

    Also, I feel this needs to be posted: https://www.youtube.com/watch?v=-ukFAvYP3UU

    • John

      The first thing that pops into my head every time the Skokie case is mentioned.

  • MrE85

    “They can vote”

    They can, and in recent presidential election years, college-age student have voted in large numbers. Then, like many other Americans, they take their eye off the ball. http://www.murphynewsservice.org/?p=1764

  • Mike

    Good post. The Supreme Court found in Brandenburg v. Ohio (1969) that even speech advocating the violent overthrow of the government was protected by the First Amendment.

    While I don’t disagree with voting as expression, it’s no substitute for robust freedom of speech exercised by ordinary citizens.

    https://en.wikipedia.org/wiki/Brandenburg_v._Ohio

  • BJ

    Love 🙂
    “engage in more protected speech.”

  • Kurt O

    “I hate Illinois Nazis.”

    — Jake Blues

  • Khatti

    Living in a country where free speech is protected means you’re going to be appalled at least once a day.

  • chlost

    Democracy is not all chocolate and roses. It can be pretty depressing sometimes to see what some of its members believe. But the fact that they have to right to say what they believe is what makes this a democracy. If they haven’t learned it by now, I suppose college is a good place to learn that.

    • It’s not insignificant that the preservation of our rights usually comes in cases involving the most despicable among us.

  • wjc

    Bob: Thanks for this post. I’m going to send the link to my daughters. This stuff is seriously important.

  • lisa

    I think the only place hate speech has been ruled illegal is when it is ruled an explicit call to violence. So if they wrote something like “kill all immigrants” that likely/maybe would be a problem. Short of that as has been said – Nazis – although we all recognize where the ideology has ended up in the past- get to march as long as they are not chanting “let’s right now go kill that specific person in this way.” Courts have said the threat need to be pretty specific and imminent. That murkiness aside- the counter is that confronting this kind of message also gives others the opportunity not only to shout down the message but to fill up space with what they believe and their own free speech. So perhaps it serves a purpose by encouraging us all to be more vocal about what we believe in contrast to what we view as hate speech. Much as the survivors in Skokie chose to build a memorial as an answer, we can speak up more about counter beliefs.

    • Well said.

      FYI, here’s some background on “fighting words” v. free expression.

      http://www.firstamendmentcenter.org/fighting-words

    • Fred, Just Fred

      So if they wrote something like “kill all immigrants” that likely/maybe would be a problem.

      They are not even saying “build a wall to keep all immigrants out”. They, like 1/2 the country, want to welcome immigrants that respect our laws and follow our process. The wall is necessary because too many immigrants, and US citizens, do not have much respect for anything.

      The left has muddled many words in our vocabulary, to the detriment of the language. “Hate” is inappropriately bandied around with such reckless abandon by SJW’s it has lost it’s meaning.

  • Joe

    Well-written response from U of M student groups:

    http://www.hercampus.com/school/minnesota/response-build-wall-mural