Insensitivity Is Not a Crime
November 7, 2007
by Adam Kissel
I find it really screwed up that the first order of business is to take down something and force the artists to apologize the way they did.This especially doesn’t make sense because even if the display was intended to call to mind Jena, wouldn’t most people immediately assume it was a comment on that, not an endorsement?If colleges and universities really supported free and open debate, wouldn’t they use these sorts of things as “teachable moments” where all sorts of viewpoints about art and its role in society would be debated? Rather than being shut down with extreme prejudice?
The Supreme Court stated in Texas v. Johnson, 491 U.S. 397, 414 (1989), that “[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Similarly, the Court wrote in Papish v. Board of Curators of the University of Missouri, 410 U.S. 667, 670 (1973) that “the mere dissemination of ideas—no matter how offensive to good taste—on a state university campus may not be shut off in the name alone of ‘conventions of decency.’”Parody and satire, even when they include “offensive” language and situations, are forms of political speech that are at the core of our country’s honored traditions. They exist precisely to challenge, to amuse, to provoke—and, indeed, to offend. Case law on this subject is quite clear. The landmark Supreme Court cases Cohen v. California, 403 U.S. 15 (1971) and Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988) protect—as core political speech—shocking or deeply offensive material, farce, profanity, and exaggeration, and they confirm the essential role of parody and satire precisely because they challenge readers’ deepest assumptions and beliefs. No campus that claims to take seriously the free speech rights of students may retaliate against students or a student publication because others on campus felt offended by fully protected speech.