America’s Great Free-Speech Battleground

While ISIS and the election dominate the news, an increasingly complex fight for and against the First Amendment is still being waged at the University of Missouri.

Having succeeded in their campaign to remove University of Missouri President Tim Wolfe for the crime of failing to prevent all instances of racial insensitivity on campus, Mizzou student-protesters appear to be getting exactly what they wanted: a campus free from hateful expression.

The public university campus in Columbia, Missouri, was ground zero for the explosion of student activism—and ensuing free-speech wars—in the last weeks of 2015. But the situation has become even more complex as erstwhile defenders of free speech in the legislature look to punish the people who forced out Wolfe.

Meanwhile, back on campus, the newly appointed vice-chancellor for inclusion, diversity, and equity has been given a mandate to meet as many of the students' demands for emotional security as possible. That administrator, Charles Henson, was recently profiled by The Economist. Henson, the magazine writes, thinks that “the First Amendment does not give people a free pass to go round saying hateful things.”

Henson is a law professor. As such, he should understand that hateful expression is exactly what the First Amendment permits—after all, a legal regime that protected only non-controversial speech would be uselessly subjective and ultimately unnecessary. So I emailed Henson for clarification. He replied that The Economist had paraphrased his remarks, stripping them of necessary context.

“When I was talking about hate speech, I was addressing the fact that most hate speech is not subject to regulation with the caveat that if there is more—like a threat of violence—the hate speech loses its protection,” he told me. “For example, I can call someone a hateful name, but I cannot call them a name and threaten to do them harm.”

That’s certainly an appropriate view. Unfortunately, far too many administrators at far too many universities over-interpret the illegality of threatening hate speech and instead discourage perfectly permissible kinds of expression all the time.

Indeed, Henson and Mizzou have already devised an “inclusive language guide” similar to the one in place at the University of New Hampshire and other schools. Mizzou’s guide warns students not to be “ageist or adultist,” “minoritize” underrepresented groups, and that the term “color blind” can be disempowering. It also informs them that a “safe space” is an area that does not tolerate “harassment or hate speech.”

Administrators can and must make Mizzou a safe space in exactly one sense: The campus should be free of literal violence. But contrary to the beliefs of a great many students on campus, Mizzou officials don’t have the authority to shelter them from speech they deem hateful.

No Mizzou personality embodies the university’s recent disrespect for the First Amendment quite as fully as Melissa Click, the communications and journalism professor who infamously prevented a student-journalist from recording and interviewing student-activists in the wake of Wolfe’s resignation. Click, who was caught on camera threatening to use “muscle” (not her own) to forcibly remove the journalist from the public space, resigned her honorary appointment in the journalism department, but is still teaching at the university. (I named her the most loathsome campus censor of 2015.)

In response, many Republican legislators in the state of Missouri have called on the university to fire Click, according to The Columbia Missourian:

Republican Reps. Caleb Jones, Caleb Rowden and Chuck Basye, all of Boone County, were among those who signed the House letter. Sen. Kurt Schaefer, R-Columbia, signed the Senate letter.

“At every turn, Click’s actions were unacceptable and inflammatory in a situation where the students and the public needed and expected university employees to serve professionally and as a calming influence,” Jones said in a statement accompanying the letter.

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"In my opinion, it's clear she violated this reporter's constitutional rights," Jones added in an interview Monday afternoon. "It's also clear that she assaulted that reporter. The state's land grant institution should not be employing people like that."

Click, one could argue, did indeed threaten violence against a student, which would seem to exempt her speech from legal protection and pave the way for her potential termination. Even so, calls for her termination are overwrought. It would be too heavy-handed of the university to punish Click—reprehensible though she may be—for her actions. She didn’t put the student in any actual danger, and pretending otherwise might actually make it easier to discipline other members of campus for acting out in ways that should be deemed acceptable.

The sanctioning of Click is not the only route Missouri Republicans have taken to punish hostile forces at the campus—they also attempted to cut funding to Mizzou’s football team in the event that the team ever went on strike again, since the team’s previous advocacy was the proximate cause of Wolfe’s resignation. Such legislation was thankfully withdrawn. A limitation on the football team’s right to strike would actually itself be a violation of these players’ free-expression rights.

What Mizzou needs is not a display of legislative force against Click or the football team. What it needs is a reaffirmation that all kinds of speech—even uncomfortable speech—are welcome.

Officials should, for instance, rededicate themselves to the state’s Campus Free Expression law, which stipulates that activities in outdoor public spaces cannot be restricted. They should assert that no student or professor will be sanctioned for hurting someone’s feelings. And they should explicitly guarantee that the First Amendment still applies on campus.