The Supreme Court’s 8-1 ruling for the Westboro Baptist Church in Snyder v. Phelps, which upheld an appeals court ruling absolving the group of tort liability on the basis of the “outrageous” content of its speech, is good for far more than just the members of the fringe organization. Indeed, the threat that an adverse ruling would pose to the rights of America’s college students is what motivated my organization, the Foundation for Individual Rights in Education (FIRE), to submit an amicus brief in Snyder, for if college administrators felt duty-bound to craft regulations prohibiting any “outrageous” speech on their campuses, whole classes of speech crucial to - even particular to - the college campus would suddenly be threatened.
Throughout the years, the Supreme Court has repeatedly been at pains to point out that college campuses are not only fully protected spheres of expression, but that they are also, by the nature of their educational mission, a location designed for the flourishing of controversial speech. The Court’s decision in Healy v. James (1972), for example, noted that "[t]he college classroom with its surrounding environs is peculiarly the ‘marketplace of ideas.'"
Further, it has held that quite often, the very purpose of protests and demonstrations is to signal strong opposition to, or even contempt for, certain ideas. As the Supreme Court held in Terminiello v. Chicago (1949), free speech “may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” If those engaged in protest activity were suddenly liable to be punished for its perceived “outrageous” nature, a key artery of discourse on campus would be ruptured. The days of the Free Speech Movement of the 1960s - stretching from Berkeley in the west to Harvard in the east - would cease to be a blueprint for political action and become the stuff of history lectures, at the end of which we’d be likely to say, “those were the days.”
As it is, the proliferation of speech codes and the increasingly politically-correct climate on campuses today has put such core exercises of free speech at enough risk. The College Republicans at San Francisco State University, for example, were investigated for holding an anti-terrorism rally during which they stepped on homemade flags of the Islamic group Hamas, which feature the word “Allah” written in Arabic. The group faced allegations of “attempts to incite violence and create a hostile environment” and “actions of incivility.” Though with help from FIRE, the College Republicans were eventually cleared of any wrongdoing, the case still illustrates a common problem with campus speech codes. How, for example, does one define an “action of incivility?" Any definition attempted for the purposes of restricting it would likely be both too vague, in that an average person would not be able to reasonably understand how it is defined, and too broad, in that it would prohibit wide swaths of protected speech.
So too it would have been with policies banning “outrageous” speech. That’s the last thing our nation’s college students need. Already, as FIRE’s research shows, 2 out 3 public universities maintain unconstitutional speech codes, and numerous universities maintain unconstitutional “free speech zones” that neuter the right to protest and to have one’s message heard. Until recently, for example, the University of Massachusetts at Amherst would only allow any protest deemed “controversial” to demonstrate on its student union steps for one hour, forced groups to reserve the area five days in advance, and made the group designate its own members to act as a security detail.
There is still much to be done to make our campuses safe for the kind of spontaneous, vigorous, and sometimes unpleasant debate one expects they would welcome. All the more reason, then, for this crucial affirmation of debate in an open society. For those who would speak loudly against the Phelpsians’ message, the Supreme Court, in upholding their rights, has given opponents a powerful tool with which to do so.
Peter Bonilla is the Assistant Director of the Individual Rights Defense Program at FIRE.
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