Why Doesn't FIRE Condemn [Insert Your Least Favorite Expression Here]?

The University of California, San Diego (UCSD), seems to be in the process of melting down over racial issues. What started with a Facebook invitation to a "Compton Cookout" off-campus theme party has become an all-consuming campus imbroglio. The primary focus of the "investigation" into the party has been the invitation itself. Adam discussed it at length on The Torch yesterday, noting that however offensive a person might find the invitation, it simply did not rise to the level of actionable harassment.

In response, blogger Angus Johnston wrote that he believed that FIRE did not take "anti-racism" sufficiently seriously because Adam's blog did not state in a forceful enough manner (in Johnston's opinion) that the party invitation was unequivocally racist. He says, "This speech was racist. If you deny that, or appear to deny it, your arguments in defense of it aren't going to read as civil libertarian principle, they're going to read as minimizations of racist douchebaggery. And when you take that approach you undercut your own argument—fatally, in many people's eyes."

Johnston believes that arguments about whether or not certain speech is protected are undercut when you don't forcefully express your own opinion that the speech was, in fact, racist. FIRE's experience has been different. As a general matter, FIRE refrains from formulating an institutional opinion (and we usually try to leave behind even our own individual opinions) of the offensiveness of the expression at issue in our cases. Rather than say, as Johnston would have us do, "this stuff is horribly racist but it needs to be defended anyway," we try to take a step back and analyze speech from a First Amendment perspective. Too many civil libertarians seem to feel the need to condemn what they defend these days. That makes little sense at an organization where you are defending those who want to show The Passion of the Christ one day and defending those who are intensely mocking it the next day.

In fact, you don't even have to go outside of the context of UCSD to see why FIRE treats expression the way it does. For instance, take Sam's blog entry from yesterday, in which she takes a look at UCSD's apparent double standard on expression. In 1995, a UCSD student publication called Voz Fronteriza celebrated the death of a border patrol agent named Luis Santiago and further called for the death of all "Migra pigs." As Sam reports:

Joseph W. Watson, UCSD's Vice Chancellor at the time, [said], "Although the administration may have strong objections to the content of a specific article in student papers, the courts have ruled that student newspapers have the right to publish their views without adverse administrative action, unless there is an explicit violation of the law or university regulations."

UCSD was right about the law fifteen years ago. This explicit call to violent action is protected speech, as it does not constitute unlawful incitement because it lacks the likelihood that it will imminently be carried out. Further, it is hard to disagree that this speech is closer to the line of unprotected speech than the Compton Cookout party invitation, which did not call for violence against anyone (and the party itself seems to have proceeded without incident). Yet, both that speech and the party invitation are protected, as even Johnston admits. Why, then, does UCSD not seem content simply to say the same thing now?

Johnston criticizes Adam for not condemning as blatantly racist and sexist the fact that the invitation includes a particular definition of "ghetto chicks." Yet this language seems to have been taken, word for word, from the popular website Urban Dictionary, which is popular among college students. Could someone simply copy that language over to Facebook without actively being a racist? What if he or she isn't racist, just insensitive? Might they even have been embracing these stereotypes, as party headliner and African-American comedian "Jiggaboo Jones" (real name: Nipsey Washington) seems to do with his character? Is he the one who wrote the text of the invitation? We don't know for sure, and neither does Johnston. In fact, nobody who's willing to talk seems to know who wrote the invitation or what their motivations truly were.

And to FIRE, as an institution, it doesn't matter—just as it doesn't matter to the Constitution. It is obvious from what has happened in the wake of the party that the marketplace of ideas is quite alive at UCSD. People are speaking out about racism and its deleterious effects. People are speaking up for the First Amendment. This process would only be helped if the UCSD student government and administration respected the Bill of Rights and allowed the 33 student media organizations, for which they have frozen funding, to participate—and FIRE is working very hard to make that happen.

If there is to be a serious discussion about racial issues, everyone should be able to be involved. Student media is an important part of that process. If you're just trying to score cheap political points or silence those you don't agree with, though, you might be willing to shut those organizations down. FIRE is uninterested in helping people do the latter. We have faith that in a free marketplace of ideas, the truth will ultimately come out. FIRE can best help that process by ensuring that the protections of the Constitution apply to everyone. If we can do that, who or what is racist or sexist will eventually become quite clear without FIRE having to guess what motivations lie in people's hearts.