The Oklahoma City University School of Law is the focus of the latest controversy over campus speech deemed hateful. Fliers were put up around school that read “it is okay to be white.” The police were called to investigate the potential hate crime and Law school Dean Jim Roth declared that such hatred and exclusion “will not be tolerated.” The controversy however reignites concerns in the free speech community over the use of hate crime laws as a surrogate for hate speech laws. Hate speech remains protected under the First Amendment despite recent calls for the adoption of European-style hate speech laws by various Democratic leaders and figures. Indeed, that is the subject of my most recent USA Today column this week.
What is interesting is that police acknowledged that no property was damaged and the fliers were “not believed to be a threat.” Yet, a full investigation is being conducted to try to learn the identity of the person who put up the fliers “to determine his intent and whether the actions are a hate crime.” That sounds more like a pretense for a hate speech investigation.
Roth sent out a letter that told students and staff “[d]espite what the intentions of that message may have been, the message reminds me of one fact that I know our community embraces – it’s okay to be EVERYBODY.”
That point is of course unassailable. However, the question is whether the law school and the police are pursuing a hate speech as opposed to a hate crime investigation. Would the response be the same with a flier noting that it is okay to be other races? If not, what is the defining principle.
I do not like the fliers and would have strongly encouraged a student not to post them. However, I often do not like speech that is at the center of free speech controversies. We do not need the First Amendment to protect popular speech.
I have written for years about the danger of replicating European hate speech laws. Indeed, a twisted notion has emerged recently where the denial of free speech is being defended as an act of free speech. We have been discussing the rising intolerance and violence on college campuses, particularly against conservative speakers. (Here and here and here and here). Berkeley has been the focus of much concern over mob rule on our campuses as violent protesters have succeeded in silencing speakers, even including a few speakers like an ACLU official and James Comey. Both students and some faculty have maintained the position that they have a right to silence those with whom they disagree and even student newspapers have declared opposing speech to be outside of the protections of free speech. At another University of California campus, professors actually rallied around a professor who physically assaulted pro-life advocates and tore down their display. In the meantime, academics and deans have said that there is no free speech protection for offensive or “disingenuous” speech. CUNY Law Dean Mary Lu Bilek showed how far this trend has gone. When conservative law professor Josh Blackman was stopped from speaking about “the importance of free speech,” Bilek insisted that disrupting the speech on free speech was free speech.
Launching a police investigation while acknowledging no threat or property damage is a concern for free speech advocates. It seems intentionally designed to create a chilling effect on speech. Once again, you can disapprove of the fliers, voice one’s opposition to the implied message, and yet still be concerned over the police response.