Here’s an example of the conflict between free speech and laws prohibiting insulting one’s religion here in America; naturally, it’s on a college campus, the one place in America where “hate speech” laws are common. A student group from San Francisco State University is being charged under campus rules for trampling on a mockup of the Hamas and Hezbollah flags during an anti-terrorism rally on campus. FIRE reports:
In a profound display of disrespect for free speech, San Francisco State University (SFSU) is investigating its College Republicans for hosting an anti-terrorism rally on campus in which participants stepped on makeshift Hezbollah and Hamas flags. After students filed a complaint claiming they were offended because the flags bore the word “Allah,” SFSU initiated an investigation into accusations of incitement, creation of a hostile environment, and incivility.
Here we have such vague rules as one against “incivility” and creation of a “hostile environment”, all of which really means saying something someone else doesn’t like. And rather than responding to that offense by condemning it, they want it punished. As this is a state university, it is bound by the first amendment and these rules are blatant violations of the free speech clause. Trampling on a flag is expressive speech, just as waving a flag is expressive speech.
But here’s how hypocrisy resides in groups on both sides of the political spectrum. We hear from many conservative groups how flag burning is not protected by the first amendment because it is conduct, not speech; yet they are up in arms about these charges involving trampling on the mockup of a flag. And those groups on campus that are filing charges in this case no doubt just find it ridiculous that the right gets so upset by those who burn the American flag, yet desecrate something they believe in and the same zeal to coerce and punish comes out of them.
Eugene Volokh asks the right questions of both sides:
But for those who disagree, let me ask: SFSU is investigating (with the threat of administrative punishment) the College Republicans for, among other things, supposedly being “incivil” and creating a “hostile environment” by stepping on butcher-paper representations of Hamas and Hezbollah flags (which also contained the name of Allah in Arabic script). If you think that there’s no First Amendment problem with banning flagburning, on the theory that it’s not speech, I take it that you think there’s no First Amendment problems with punishing (even criminalizing) the Republicans’ actions, right?
Likewise, if SFSU tried to punish a student for waving a Confederate flag (assume no special circumstances such as the flag’s being stolen, or the waving been intended and understood as a personal insult and invitation to fight addressed to one particular person), I take it you’d say “Sure, no First Amendment problem,” right?
FIRE has it absolutely right:
“In a free society, neither SFSU nor any other agency of the government has the power to investigate a group simply for disrespecting a religious symbol,” FIRE’s Shibley said. “By continuing this investigation, SFSU is not just charting new territory in campus repression, but its actions come into direct conflict with the United States Constitution. The charges against the College Republicans must be immediately dismissed.”
It is time to mount a major campaign against such hate speech codes all around the country. Suits should be filed in every single case where a public university has punished anyone for constitutionally protected speech, enough cases so they have to be consolidated. There have been two cases striking down such codes, one in Wisconsin and one in Michigan, but neither was appealed so no wider precedent was set. It is time to make sure that precedent is set nationally, with a Supreme Court ruling that does away with such codes forever.
This is one area where advocacy groups from the left and the right agree. The ADF, FIRE, the ACLU and any other group that is opposed to such codes should join forces and start an all out assault on them from one end of the country to another to be sure that at least one of them will make it to the Supreme Court (or more likely they’ll be consolidated into one case). Even I would donate money to the ADF for this cause.