By David Loomis
INDIANA – A month after the August 2017 white-supremacist rally in Charlottesville, Va., IUP’s social-equity office invited faculty members to propose public discussions about issues related to the deadly confrontation near the U.Va. campus. There was a local angle, too.
On Sept. 4, soon after the fall semester started, a racist Snapchat photo sent by an IUP student – the second in as many years — had disrupted the campus again.
I volunteered to lead a discussion group about the local angle. The university accepted my pitch. I also planned to add First Amendment elements of free speech, free press, free assembly and the rest to my talking points.
On a Tuesday evening in early November, the classroom assigned for my discussion overflowed. A dean scouted a larger room elsewhere in the building. The crowd migrated. I began.
I recited lecture notes from a media law and ethics course I taught. I described U.S. Supreme Court rulings that, beginning 100 years ago today, built the jurisprudence of free speech and free press in America.
The free-speech rulings were capped in 1969 in a case involving a Ku Klux Klan leader charged under Ohio law with exhorting a mob to violence against Jews, blacks and the government during a cross-burning. The mob took no action.
In its ruling, the U.S. Supreme Court established the “imminent lawless action” test for inflammatory speech: Government – including IUP, a public university supported by government funds — cannot punish such speech unless it poses a “true threat” – speech that is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
IT’S BASIC FACT in First Amendment law. But some students in my audience weren’t buying it.
As discussion drew to a close, one student in the rear of the room demanded, why is the university “hiding behind the First Amendment?” Why is it failing to punish hate speech?
My first reaction to the student’s demand – and to what I recall as an amen chorus among some other audience members — was that he had not absorbed my recitation of what is. Now I understand his anger as a precocious expression of what should be.
During the following 2018-2019 academic year, university administrators and faculty members proceeded to organize yet more free-speech events at which, once again, First Amendment law was explained. And, once again, the university underscored its inability to punish bad speech and its interest in promoting good speech.
Fine. The First Amendment can use all the promotion it can get.
But if the purpose of a university means anything, it is to encourage critical thinking about how to form a more perfect union, as the preamble to the U.S. Constitution puts it. How to understand problems, how to set goals and how to reach them. How to “change the world with your words,” as one p.r. pitch puts it.
WHAT CAN students do?
They can start by comparing the United States to other Western democracies. Australia, Canada, England, France, Germany, India, the Netherlands and South Africa have passed laws or signed international conventions that ban hate speech. France and Israel ban the sale of Nazi paraphernalia. Holocaust denial is a crime in Canada, France and Germany.
The United States restricts speech, too. The Supreme Court has ruled that obscenity, child pornography, fraud, advertising and other categories of speech – in addition to speech inciting imminent lawless action — receive less (or no) protection under the First Amendment.
But the First Amendment and its jurisprudence distinguish the United States from the rest of the Western world. Critics, including some of the amendment’s strongest defenders, say it’s time to re-examine the status quo.
Pulitzer Prize-winning reporter and First Amendment biographer Anthony Lewis wrote in 2010 that “genuinely dangerous” speech did not meet the Supreme Court’s imminence test. Lewis, a liberal, was thinking of words that have provoked mass murder and terrorism in places such as Rwanda, Myanmar and elsewhere – like Pittsburgh.
“I think we should be able to punish speech that urges terrorist violence to an audience, some of whose members are ready to act on the urging,” Lewis wrote. “That is imminence enough.”
A lesson for my IUP student angry over the free-speech/hate-speech status quo – and his classmates on campus – is that the future of the First Amendment, like its past, is changeable. The move to change it already has begun.
David Loomis, Ph.D., emeritus professor of journalism at Indiana University of Pennsylvania, is editor of The HawkEye.
The HawkEye invites comments on this and other issues of community interest. Email firstname.lastname@example.org