Tuesday, November 25, 2008

Hate Speech, and Fighting Words

A new addition to the KPC blogroll: Social Services for Feral Children. A fine young blog.

And, some questions I want to raise about a post on SSFC, this one.

It is about the graffiti on the NC State "Free Speech Wall," graffiti that attacked BH Obama after the election, suggesiting “Hang Obama by a noose” and “Let’s shoot that n****r in the head”. (News Story, for background) (Yes, the idiot who wrote that stuff has apologized, publicly, but has not been identified by the University. An interesting twist, no? Protect the student from the hate that is the response to his own hate....)

Excerpt from Social Services for Feral Children post:
...William J. Barber, the President of the North Carolina NAACP and a member of the national NAACP board...is perhaps best known for advocating the continued prosecution of certain students at nearby Duke University when even Mike Nifong had thrown in the towel...[He] wants these students prosecuted as well, and he wants them expelled from the state-run university. For what? Well he doesn’t know, but there ought to be a law. Why not “hate speech”?

In a news release today, Barber said: “It is not clear whether these [university] officials fully understand the problem. Their decision to permit four students, with race-hatred spilling out of their hearts, to continue taking classes and engaging in social affairs on campus, by definition creates a racially hostile learning environment for students of color.”

Barber said he and other NAACP leaders planned to: … Ask for a meeting with Wake District Attorney Colon Willoughby to get an explanation of why the graffiti was not in violation of the state’s hate crimes law. The NAACP will take the information to the General Assembly, Barber said.

To save the District Attorney some valuable time, I’ll answer Barber’s question. My answer isn’t as authoritative as the DA’s, but it’s correct: Hate speech, or any speech no matter how offensive unless obscene or an imminent incitement or threat of violence, is not and cannot be a crime under the First Amendment’s guarantee of freedom of speech. A state university, such as North Carolina State University, cannot discriminate against students for constitutionally protected speech by expelling them.


1. It is called the "Free Speech Wall." Stuff that is offensive gets painted over. The remedy to paint you disagree with is more paint.

2. If the kid had said this stuff in class, then there would be cause for action by a professor. The "noose" and the "n" word are both strongly racist, and therefore attack a class of people, for an ethnic or racial feature (whether "race" is real or imagined, it is meaningful here). So, a prof would clearly be justified in calling a student out who used this language in class. But even THEN it would not be a crime, just an act of unacceptable behavior in a classroom.

3. But, is there really NOTHING that could be written that would violate (a) state law, or (b) university policy?

You know my answer; being in a free society means you have to have a thick skin. Being offended doesn't mean the offender has committed a crime.

I do feel obliged, however, to point out the "fighting words" exception to 1st Amendment speech protections. Isn't the indignant Mr. Barber right about THAT? Aren't these "fighting words," and therefore not subject to 1st Amendment Protections?

Well, no, not really. As this interesting article from FIRE argues, "the Supreme Court has effectively limited the [Fighting Words] exception to only include abusive language, exchanged face to face, which would likely provoke a violent reaction."

So, if the kid had held out a noose, or used the n-word, in a crowd, or a classroom, he has no 1st Amendment protection. But if he writes it up on a "Free Speech Wall," you paint it over, tell the kid he is an idiot, and then talk about the incident as a chance to raise the issue of racism and racist attitudes. No crime was committed. In fact, there is no such THING as hate crime. End of story.

I will admit one thing: I think less of the kid for hiding his identity. If you want to take a stand, even an asinine, racist stand like this, then go for it. Sign your handiwork, and own up to it. Saunder's Law: "The 1st Amendment means you can say what you want. But then you have to take the ass-whuppin'."

Barry didn't mean a physical ass-whuppin', though that might happen. If you want to say something hateful, to make a political point, make sure you don't apologize as soon as you get caught, son. Stand up for your bigotry, and take the ass-whuppin'. Or don't say stupid shit in the first place.


Angus said...

you are turning my knees to jelly with your amazing use of labels. TYVM.

SSFC said...

Thanks for the link Dr. Munger.

The wall (it's actually a tunnel, I threw up there in the 1980s) is explicitly designated as a free speech zone by the school. Therefore it's a "public square" for all intents and purposes. I was allowed to vandalize it and I wasn't a State student. No Poultry Science for me.

So if it's a public square (and I take it as such - it's called a "free expression tunnel"), we have to ask ourselves whether a citizen could be convicted, constitutionally, for speaking offensive words on public property (or tunnels) that do not fit within one of the recognized exceptions (serious threats, fightin' words, obscenity, or trespassing, which would cover your classroom (assuming you taught at State) once you told him to shut up.)

I submit the answer is no. The school can have a code requiring nondisruptive conduct in class, but this tunnel is open to free speech. Content discrimination in a public area clearly violates the First Amendment in the absence of a recognized exception, or we'd see a lot more giant puppets being arrested.

Anonymous said...

Black America and the N-word:


Tom said...

I took the comment about "take the ass-whuppin'" as metaphorical. I'm sure that's the way it was meant. Individual violence, like state sponsored violence, only makes the problem worse.

/metaphors are sometimes taken literally, esp. in print

br said...

"Bad" words are subject to the same reality as any other prohibited taboo. Artificially restricting the supply drives up the value (power in this case) of the "bad" words that make it to market. Folks like Barber have actually found a way to turn the phenomenon into cash.

Next time somebody calls me a "cracka ass cracka", I'm going to get real mad and make a mean face [instead of laughing].

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