Letter to the Editor

In trying to bring clarity to the debate over campus speech, Bennett Carpenter's column on Jan. 19 makes several mistakes and omissions about the First Amendment.

Carpenter says he cannot imagine how student activists could violate anyone's First Amendment rights. True, private universities are not subject to the First Amendment, but it's not hard to imagine a scenario in which student activism leads to potential First Amendment violations. 

Public universities, as state actors, are subject to the First Amendment. Suppose student activists at such a university successfully advocate for the imposition of a speech code that flatly prohibits any speech that is offensive to racial minorities. A student is then disciplined for violating the code by publishing an op-ed suggesting that affirmative action hurts its intended beneficiaries. That might violate the First Amendment's prohibition on viewpoint-based discrimination.

Carpenter professes to be unable to distinguish between someone shouting fire in a crowded theater and hate speech directed against racial minorities. The difference is simply that when you falsely shout "fire" in a crowded theater, you are creating the possibility of imminent physical harm to bystanders. When someone publishes offensive things about racial minorities, there usually isn't the same likelihood of imminent physical harm. This distinction is key to the First Amendment's protection of unpopular speech; only that speech which threatens to incite imminent physical harm can be punished, with some other exceptions for libel, true threats, obscenity, etc.

Carpenter notes that historically speaking, hate speech could be prohibited consistent with the First Amendment. This may be true, but is Carpenter willing to follow this kind of argument to its logical conclusion? Historically speaking, the First Amendment left unprotected vast swaths of speech that everyone would agree today ought to be protected. For example, in a series of cases in the early twentieth century, the U.S. Supreme Court upheld convictions of communists and other radicals for expressing unpopular views. Does it follow that we should return to this approach to offensive speech?

Matthew Craig

Law '16