Harvey Silverglate: ‘Ole Miss Seeks to Put First Amendment in a Noose’

Last month, three University of Mississippi (UM) students placed a noose and an old Georgia state flag on a statue of James Meredith while shouting racial slurs. (Meredith was the first African-American student to enroll at UM after the Supreme Court’s landmark 1954 decision in Brown v. Board of Education.) UM Chancellor Dan Jones stated that “[t]heir ideas have no place here,” and the Clarion Ledger reported last week that the FBI is looking into the matter.

But FIRE Chairman and co-founder Harvey Silverglate reminds readers in an article for Minding the Campus today that “in the eyes of the First Amendment, speech that promotes hate is as protected as speech that promotes love.” Reviewing the case law, Silverglate notes that the students’ expression falls short of the legal standard for a true threat, and is therefore protected under the First Amendment:

[T]he proper question at Ole Miss becomes whether the display of the noose and the Confederate flag on the Meredith statue on the campus could reasonably be seen as a threat against an identifiable individual, or, instead, as a general philosophical and political statement against integration and racial equality. (Of course, there is a third possibility, which I think is at least as plausible: That it was a prank conducted by students with stunningly bad judgment.) I think it highly unlikely that the Meredith statue incident could reasonably be seen, as a legal matter, as the kind of threat that could undergird either a state "threats" or a federal "civil rights" prosecution. And the fact that the incident arose on a university campus surely suggests that if there be any ambiguity in the intent of the malefactors, it be resolved in favor of academic freedom and against repression of unpopular expressions of opinion.

James Meredith himself seems to suspect Silverglate’s third theory: He called the act a “distraction” and urged African-American students to disregard the incident, stating that “teenagers have been committing pranks and doing foolish things forever.” But even if the students were purposefully advocating for inequality, Silverglate reminds us that freedom of speech must include what Supreme Court Justice Oliver Wendell Holmes deemed “freedom for the thought that we hate.” “There cannot, in a free society, be any such thing as an officially prohibited viewpoint,” Silverglate writes. “After all, if the speech of the three Ole Miss students is prosecutable as ‘hate speech,’ then at the next turn of the ideological screw, the rest of us could find ourselves in legal trouble.”

University of Chicago Law School Professor Geoffrey Stone also weighed in on the controversy in The Huffington Post, citing historical examples of hateful—but protected—speech in questioning whether the UM students should be punished.

Read the rest of Silverglate’s thoughts on the case in Minding the Campus.

Image: Photo of Meredith statue - The Grio