First Amendment in action.

Photographer: Michael B. Thomas/Getty Images

Policing Free Speech at the University of Missouri

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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At the embattled University of Missouri, where the president and chancellor are stepping down, university police sent students an e-mail Tuesday urging them to call and report if they “witness incidents of hateful and/or hurtful speech.” The e-mail urged witnesses to provide descriptions of the speakers and, if safe, snap pictures of them with their phones.

The First Amendment applies at a state university campus, and those who speak hatefully or hurtfully can't be criminally punished. But they can be penalized or expelled if they create an environment that's hostile on the basis of race or sex. There's a serious tension between these interests, and the Missouri e-mail raises a pressing question: Does the use of campus police to enforce anti-discrimination advance the goal of knowledge or detract from it?

The legal issues follow from those I wrote about in March when the University of Oklahoma expelled two fraternity members for leading a racist chant. On the one hand is the First Amendment, which guarantees free speech against state actors like a public university. On the other hand are federal laws that, as interpreted by the Department of Education, require the university to ensure it isn't a racially or sexually hostile educational environment. In practice, that certainly requires regulating some harassing, discriminatory speech.

Reconciling the tension between these laws isn’t easy. The prevailing theory that allows the government to outlaw discriminatory speech acts is that the government isn't actually prohibiting speech. It's prohibiting a course of conduct, namely discrimination. Discrimination can be accomplished by a range of means, one of which is speech.

There's not much case law to clarify the right way for courts to think about this analysis. At one time, campus anti-discrimination provisions would have only had to satisfy “intermediate scrutiny,” meaning that any rule must serve an important government interest and use means substantially related to achieving it. The reasoning would've been that these laws are aimed at conduct and only burden speech incidentally.

But in a hugely important 2010 case, Holder v. Humanitarian Law Project, the U.S. Supreme Court said it would apply “more rigorous scrutiny” to laws that are aimed at conduct but are applied to speech. Arguably this special standard should be applied to campus regulations that punish racist or sexist speech. The government's interest would have to be more significant, and the means more closely tailored to achieving it.

The courts will no doubt have to address these issues. Until they do, the current practice on many public university campuses will no doubt be to enforce anti-discrimination regulation rigorously.

That brings us to the question of whether the campus police are the right people to do that job. One of the issues that drove the protests at Missouri was a student leader's description of having been assailed with racial epithets while walking across campus.

No doubt the decision by the police to enforce a nonhostile educational environment is intended to send students the message that the university takes such hostile speech acts seriously and will deal with them rigorously. This intention can only be described as laudable.

Nevertheless, there’s surely reason for some concern about the use of campus police, who are state actors at a public university, to enforce regulations that directly affect speech. A spokesman for the University of Missouri campus police told Reason.com that the police can't arrest anyone for discriminatory speech, but can “take reports for violations of rules and regulations.” The campus police are employees of the university.

That distinction is legally correct, but may be confusing to a student accosted by uniformed officers. In general, campus police have the power to make arrests, at least while on campus. In this sense they’re real police -- genuine agents of state power.

Given this unique status of campus police, it’s hard to avoid the conclusion that the approach described in the e-mail might chill some legitimate free speech.

Imagine, if you will, student protesters who are in support of the university administrators who’ve resigned. Imagine that, at an on-campus protest, they say things that are “hateful and/or hurtful” to students of color. Following the guidance of the police e-mail, other students are encouraged to take pictures of the protesters and report them to the campus police. The campus police then arrive to investigate and take reports to see if the speech has created a hostile educational environment.

In this scenario, the protesters might very plausibly decide they should shut up and shut down. The fact that their words would almost certainly be protected political speech under the First Amendment might be of secondary importance to them, concerned as they might be about approaching campus police. This hypothetical would represent a pretty clear example of chilling -- which is a real First Amendment concern.

The University of Missouri has a responsibility under the law to keep its educational environment nonhostile. But if it insists on using police to achieve that goal, it should be extremely careful to respect free-speech rights in the process. The university should specifically train officers in respecting free speech, announce its policies and be transparent about the training to the campus community.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net