Law professor: ‘Statements that merely offend people, or even insult and make them feel ‘provoked’ to violence, do not constitute unprotected incitement under this definition’
Recently, a group of students at St. Cloud State University became furious over a free speech wall erected by College Republicans there.
The wall contained phrases such as: “Build a Wall,” “Defund Planned Parenthood,” “Support our police,” “Give freedom a chance,” “Make America Great Again,” “Support our troops,” “Hillary for Prison,” and “In God We Trust.”
At a campus meeting convened over the controversy, dozens of angry students confronted the College Republicans and accused the wall’s contents of being “hate speech” and speech that “invokes violence.”
At one point during the meeting, a student took the microphone and said, “Hate speech should not be covered under the First Amendment. It should not,” as the crowd clapped and cheered in agreement.
“Hate speech invokes violence,” he added. “So speech that invokes violence, is that covered under the First Amendment?”
“Is speech that invokes violence, is that covered under the First Amendment,” he called to the crowd? “No!” many answered back in unison.
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But the student — and his crowd of peers — are wrong on both accounts, according to some scholars reached for comment by The College Fix.
Not only is hate speech covered under the First Amendment, but insinuating that speech that allegedly “invokes violence” is unprotected speech has several provisions to be considered unconstitutional.
“The Court has held that incitement to crime (including violent acts) is unprotected. But to be incitement, the speech must actually advocate immediate (not future) criminal acts and must be likely to actually lead to such acts,” said Dale Carpenter, law professor at Southern Methodist University.
As for the St. Cloud student’s assertion that the free speech wall is hate speech that invokes violence and is therefore unprotected under the Constitution, Professor Carpenter said the young man is incorrect.
“Statements that merely offend people, or even insult and make them feel ‘provoked’ to violence, do not constitute unprotected incitement under this definition. As far as I can tell, nothing on the free speech wall qualifies as incitement,” Professor Carpenter told The Fix.
“There is, further, no generally accepted definition of ‘hate speech.’ So while I regard some of the statements made on the free speech wall as offensive, I cannot say that any of them qualify as hate speech,” he added. “The statements are all constitutionally protected.”
And Azhar Majeed, vice president of policy reform at the Foundation for Individual Rights in Education, came to a similar conclusion when asked to weigh in on the controversy.
“Hate speech is protected under the Constitution, and what one person considers as hate speech is different from someone else’s opinion,” Majeed told The Fix in a telephone interview.
“Students are not powerless on campuses and can engage in active debate and discussion concerning political disagreements,” he said.
“Free speech has not been excluded from the Constitution, and the students who erected the Free Speech wall were not in the wrong to promote their own ideas, which the First Amendment does in fact protect,” according to Majeed.
In the aftermath of this situation, the College Republicans at St. Cloud have erected a new Free Speech display, containing a large cut out of President Trump, the American flag, and a huge copy of the U.S. Constitution.
Meanwhile, Mathias Eike, who was president of the College Republicans when the wall was erected, has refused to apologize for its creation and instead chose to resign from the College Republicans, revealing a strong dedication to his First Amendment right to express conservative ideas on college campuses.