The Noose, Ole Miss, and Free Speech

02/19/2014 11:53 pm 23:53:18 | Updated Apr 22, 2014

A few days ago on the campus of the University of Mississippi, someone (reportedly two males) draped a Confederate flag on a statue honoring James Meredith and hung a noose around its neck. Meredith was the African-American student who courageously desegregated the University of Mississippi in 1962, weathering a storm of ugly protest, riots and threats of violence. This act was, by any measure, deeply disrespectful and hateful.

University of Mississippi Chancellor Dan Jones responded by stating of those who did this: "Their ideas have no place here, and our response will be an even greater commitment to promoting the values that are engraved on the statue -- Courage, Knowledge, Opportunity, and Perseverance."

This poses an interesting question. How should the University of Mississippi respond? What does it mean to say that these "ideas have no place here"? Assuming the individuals who did this were students, should the university expel or otherwise discipline them? Are there "ideas" that "have no place" on a university campus?

Several years ago, I crafted an official statement for my own university -- The University of Chicago -- on the institution's Principles of Free Expression. It read, in part:

Eighty years ago, a student organization at the University of Chicago invited William Z. Foster, the Communist Party's candidate for President, to lecture on campus. This triggered a storm of protest from critics both on and off campus. To those who condemned the University for allowing the event, University President Robert M. Hutchins responded that "our students . . . should have freedom to discuss any problem that presents itself." He insisted that the "cure" for ideas we oppose "lies through open discussion rather than through inhibition.". . .

Because a university is committed to free and open inquiry in all matters, it guarantees all members of its community the broadest possible latitude to speak, write, listen, challenge and learn. A university must respect and support the freedom of all students, faculty and staff "to discuss any problem that presents itself," free of interference.

This is not to say that this freedom is absolute. In narrowly-defined circumstances, a university may properly restrict expression, for example, that violates the law, is threatening, harassing, or defamatory, or invades substantial privacy or confidentiality interests. Fundamentally, however, a university must be committed to the principle that it may not restrict debate or deliberation because the ideas put forth are thought to be offensive, unwise, immoral, or wrong-headed. It is for the members of the university community to make those judgments for themselves. . . . As Robert M. Hutchins observed, without a vibrant commitment to free and open inquiry, a university ceases to be a university.

The premise of this statement is that a university should not discipline a student for expressing views that are hateful, offensive, inappropriate, or stupid. Nor should it discipline a student for expressing views that are racist, homophobic, sexist, unpatriotic, or otherwise outrageous or infuriating.

On the other hand, the freedom of expression is not absolute. A university may legitimately discipline a student for expression that is "threatening." Was the hanging of a Confederate flag and a noose on the statue of James Meredith "threatening"? Certainly, in the broadest sense of the term, it was. No doubt, some African-Americans on campus felt "threatened" by this act.

But as offensive as this act was, it does not quite fit the conventional definition of a "threat." To constitute a "threat," an individual's speech must not just put people in fear, but must (a) be directed at specific individuals and (b) be unambiguous. "If you don't give me your money, I will kill you," if stated in circumstances in which the statement would reasonably be taken seriously, is a "threat." Hanging a noose on the door of an African-American student's dorm room, in circumstances in which the message would reasonably be taken as a threat, is also be a "threat." But is it a "threat" to hang a noose around the neck of a statute of James Meredith?

The Supreme Court has dealt with a somewhat similar situation. The Court has held that burning a cross on the lawn of an African-American family that just moved into a previously all-white community is punishable as a "threat," but that burning a cross at a Ku Klux Klan rally cannot be deemed a "threat" and is, indeed, constitutionally protected speech -- even though the very existence of the rally and the cross-burning will quite predictably be seen by some people as threatening.

Another example is the Nazi march in Skokie, a predominantly Jewish suburb of Chicago, in the late 1970s. Someone who hangs a swastika on the front lawn of a Jewish family, in circumstances in which the family would reasonably understand it as a "threat," can constitutionally be punished, but the Nazis have a First Amendment right to march through downtown Skokie, carrying swastika banners, because, although their message might be deeply offensive and frightening to the Jews in Skokie, it does not constitute an unambiguous "threat" to particular individuals. There is a difference between a rallying cry, however offensive, and a threat.

For these reasons, the University of Mississippi situation is not as clear-cut as most people seem to think. Those who did this may, indeed, be despicable people, but it does not necessarily follow that the university should punish them for expressing their views, however hateful and offensive they might be. The situation is not as simple as it might first appear.

Perhaps the university, its students, its faculty and its alumni should see this as an opportunity for "open discussion" rather than "inhibition," as an occasion on which to reaffirm the deeper values of the university and, in the words of Chancellor Jones, an opportunity for the university to renew its "commitment to promoting the values that are engraved on the statue -- Courage, Knowledge, Opportunity, and Perseverance."