University of Delaware General Counsel Gets Confused about the Supreme Court and Free Speech

Say what you will about the University of Delaware's many free speech problems over the years, but the university almost always comes around (eventually) when confronted with the fact that it has violated the First Amendment. Sometimes it takes a lawsuit or extensive public outrage, but much of the time a letter will suffice. Thus, I was hopeful but cautious when a Torch reader sent me a copy of the May 7, 2010, issue of The Chronicle of Higher Education containing an article on free speech from University of Delaware General Counsel Lawrence White.

First, the good news. White concedes that in America, speech has very broad protections:

Could a speaker conceivably utter words so hurtful and so malicious that college officials could justifiably prohibit those words or punish the speaker for uttering them? Unless and until the Supreme Court changes the law, the answer pretty clearly will be no.

Unfortunately, this conclusion seems to be more of a cri de coeur from someone who wishes there were some way to prevent students from saying mean things rather than a rigorous legal analysis. White actually seems disappointed that the law might be so (supposedly) extreme.

White gets to his conclusion by misreading U.S. v. Stevens, in which the Supreme Court invalidated the part of a law targeting "crush" videos involving torture and killing of animals (apparently for pornographic purposes). The law was problematic because it was unconstitutionally overbroad, banning a substantial amount of protected speech aside from the the targeted videos. That's a hard point to miss when you read the opinion, or even read the one-sentence version from the case syllabus:

Held: Section §48 [of the law at issue] is substantially overbroad, and therefore invalid under the First Amendment. Pp. 5-20.

When Chief Justice Roberts explained the holding in the Court's opinion, as White points out, he argued that the First Amendment itself

reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. [Emphasis added.]

Disappointingly, White jumps from the Court's careful employment of the overbreadth doctrine here to an all-or-nothing statement, as though the Roberts Court is now guided by sheer First Amendment absolutism. White writes:

By default, under the chief justice's view of the First Amendment, the only desideratum that matters is whether unfettered free speech is abridged. [Emphasis added.]

White is standing Roberts' argument on its head. Whereas Roberts stated that the entirety of the government's argument may not simply be that certain speech is socially worthless, White mistakenly claims that Roberts stated that the government never can employ questions of social utility. To take just one example of how wrong White is on this point, consider that legally obscene material—generally, hard-core pornography lacking serious artistic or other merit—has already lost the full First Amendment protection enjoyed by most other speech. There is no indication, to say the least, that the Roberts Court is planning to reverse course on that issue.

Since White's analysis leads him to say that there are no words "so hurtful and so malicious that college officials could justifiably prohibit those words or punish the speaker for uttering them," I suppose I am not very upset. That is often a good thing for a university's general counsel to believe, since a bias towards institutional censorship seems to be to be the nearly universal condition on our nation's campuses. Yet, I am disappointed in the way that White came to this conclusion, because it oversimplifies the actual American legal approach to free speech that protects our fundamental rights without requiring that every last artifact of expression be completely immune from regulation.