Which of the following is considered speech protected by the First Amendment?
- Picketing a military funeral with the sign “Thank God for dead soldiers”
- Burning an American flag
- Wearing blackface at a fraternity fundraiser
- Marching in a parade in Nazi uniforms with swastikas
- None of the above
- All of the above
The answer is “all of the above.” And, distasteful as these examples are, this freedom of expression is at the heart of American democracy, explained Vice Chancellor and General Counsel Mark Merritt at Thursday evening’s Carolina Conversation on First Amendment protected speech.
Launched last year, Carolina Conversations is a University effort to engage students, faculty and staff in dialogue around issues of equity and inclusion related to race, intellectual diversity, religion, identity and culture. Merritt’s presentation was the most recent event in the series, designed to ensure that Carolina remains an inclusive and welcoming campus for all.
“The thought that you end bad speech by trying to restrict it is contrary to the fundamental premise of the First Amendment,” Merritt told the audience gathered in the Student Union Aquarium Lounge.
The First Amendment of the Constitution says that the federal government (and state and local governments, by extension through the 14th Amendment) will make no law “abridging the freedom of speech.” The primary purpose of the amendment is to protect political speech from being punished or restricted by the government.
As a public university and a state agency, Carolina is part of the government and must be vigilant in protecting free speech. But not all speech is free speech.
“If you think of the First Amendment as a series of concentric circles, at the very core of what is protected is political speech,” Merritt said. “As you get farther from political speech – for example, in commercials – the protection changes, and the ability of the state to regulate speech gets stronger.”
Sometimes it’s difficult to separate when someone is talking policy versus politics. Merritt gave an example of a faculty member writing a letter to the editor saying how important some immigrants are for the economy versus ranting about the crazy people in Washington who oppose immigrants. “Those are the extremes. What’s harder is somewhere in the middle.”
The University has been recognized for its commitment to free speech by the Foundation for Individual Rights in Education (FIRE). The group gave Carolina its best rating – the Green Light – making the University one of only two institutions in the state with that rating and the only public institution.
Protecting free speech doesn’t mean the University and its employees have to tolerate threats, racial epithets, cyberstalking or harassment. When “Bash the Fash” flyers – showing a figure beating a Trump supporter – were being posted on campus recently, Merritt said Chancellor Carol L. Folt’s response was the right one.
“The flyer and its message are the antithesis of the values that are the foundation of our University,” Folt wrote in the Feb. 16 campus email. “It is not designed to spark civil discourse or encourage thoughtful debate. Its intentions are to incite violence, and there is no place for that here or in our society.”
The same principle applies in the workplace. “We do have policies in place about harassment in the work environment,” Merritt said. If you find a co-worker’s speech offensive, “you are free to tell them you find it offensive and why.”
Interim Chief Diversity Officer Rumay Alexander reminded the audience that they can express their concerns with CUS, her acronym for telling someone that you are concerned, uncomfortable or don’t feel safe because of their speech.
When speech sounds hateful but is protected by the First Amendment, the wisest course is to develop a tough skin and keep talking, Merritt said.
“The theory under the First Amendment – and the courts have said this repeatedly – is the antidote to that kind of speech is more speech. It’s educating people. It’s understanding what motivates them to say that,” Merritt said. “It takes time and good speech to overcome the attitudes that are embedded in bad speech.”
By Susan Hudson, University Gazette
Published February 24, 2017