The College Fix

‘We understood that we were making a moral statement’

Nicholls State University President Jay Clune warned the community earlier this month that the taxpayer-funded institution would punish those who commit “hate speech” with the “swiftest, harshest action allowed by law.”

He went even further, implying it was illegal for any member of the community to speak or act “in a manner that does not support our values.” Not just violate those values – failure to support them.

Clune got a warning last week from the Foundation for Individual Rights in Education for promising to violate the First Amendment rights of the entire community. The civil liberties group said he could “expose the university to needless civil liability” if NSU tried to enforce his sweeping directive.

Without admitting he was wrong, Clune told local newspaper Houma Today that he wasn’t speaking in legal terms when he made the unconstitutional threat and falsely claimed the public university could take legal action against students for nonthreatening speech.

“I don’t think our students who were protesting inequality, discrimination and injustice really wanted a teaching moment on the First Amendment,” Clune said. “We understood that we were making a moral statement, a moral framework, rather than a legal framework.”

(The newspaper itself muddles the issue by claiming the First Amendment protects “hate speech” – never defined – but NSU policies “do not.” The First Amendment is binding on all NSU policies as applied to speech and expression.)

Clune’s sort-of walkback makes no sense, according to a FIRE blog post Tuesday. “After all, it was his own email to students on June 6 that promised the swiftest and harshest action allowed ‘by law’ for offensive speech,” wrote Bill Rickards, communications coordinator:

If students weren’t looking for a teaching moment on the First Amendment, perhaps Clune — the leader of a government institution — shouldn’t have given them an incorrect one to begin with. …

Had Clune intended to give only a moral message on free speech, rather than a legal framework, he would have been better off telling students that when they see or hear speech they find deeply offensive, the First Amendment empowers them to speak out against it, respond to it, and vigorously pursue it in the public sphere.

MORE: Campus speech codes endangered by SCOTUS trademark ruling

FIRE’s July 12 letter warned Clune that his warning was not “an accurate statement of law.” The president implied NSU would scrutinize students, staff and faculty for “the things they post and how they interact with people on social media,” using the Student Code of Conduct and Employee Handbook to sanction them.

The First Amendment binds NSU across a host of activities – “the pursuit of disciplinary sanctions, recognition and funding of student organizations, interactions with student journalists, conduct of its police officers, and maintenance of policies implicating student and faculty expression,” wrote Adam Steinbaugh, director of FIRE’s Individual Rights Defense Program.

Quoting a Supreme Court decision that banned the government from prosecuting a Vietnam War protester for his “Fuck the Draft” jacket, Steinbaugh said “governmental officials cannot make principled distinctions” on which speech is “inoffensive” enough to merit protection. The high court upheld the precedent in a 2017 ruling against a regulation that bans “disparaging” trademarks.

Clune is also endangering antiracist speech by his own community, which can just as easily be punished under the banner of “hate speech,” Steinbaugh continued:

In our own work defending faculty and students’ expressive rights, we have seen an alarming increase in efforts to punish the speech of students and faculty of color, as well as their allies, when it is critical of systemic racism.

FIRE’s warning to NSU is the opposite of guidance coming from the ACLU, which is telling administrators not to cite the First Amendment when students demand the punishment of their peers for offensive speech. Inside Higher Ed reports:

“When I talk to administrators, I tell them, ‘For a moment, forget about the First Amendment,’” [ACLU staff attorney Emerson Sykes] said. “This is a community issue. If someone is hurt in your community, then think about the ways that your community can heal. When you’re interpreting the First Amendment in your head when someone is across the table from you and crying, it’s not a good place to start.”

MORE: Report explains why allowing ‘hate speech’ keeps America free

A former fellow at the University of California National Center for Free Speech and Civic Engagement, Sykes said he gets “frustrated” when public university leaders say they can’t legally punish speech that offends some students.

Though Sykes said he encouraged students in free-speech workshops to “navigate” the First Amendment to accomplish their own objectives constitutionally, student activists recently have not responded well to invitations to counter offensive speech with more speech.

Inside Higher Ed notes the angry reaction Salisbury University President Charles Wight received when he encouraged students to speak out against “hateful expression” using “[t]he same laws” that protect all speech at the public university:

The Salisbury Student Government Association did not find that suggestion acceptable.

“If President Wight believes that ‘hate has no home’ at SU, but takes the possibility of punitive action off the table by citing free speech, then hate will continue to find a safe harbor within our university,” a June 15 statement from the association said.

Read FIRE’s post and letter to Clune, the president’s interview, and Inside Higher Ed report.

MORE: 3 in 4 Democratic students believe ‘offensive jokes’ can be hate speech

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