As The Crimson White’s reporting chronicled yesterday, the impulse to stifle controversy and dissent is alive and well at The University of Alabama. One student described being forced to take a post down from her personal Facebook page because it could be seen as reflecting badly on the University. Administrators require “permits” for free expression on the Quad. This imposition of groupthink is antithetical to the principles for which this country stands.
In the darkest days of World War II, several Jehovah’s Witnesses in West Virginia were expelled from school when they refused to say the Pledge of Allegiance because it violated their religious beliefs. In West Virginia State Board of Education v. Barnette (1943), the Supreme Court stated that, even in a time of war, the “freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.”
Yes, free expression can cause controversy, but controversial speech is exactly what the First Amendment is needed to protect.
The Foundation for Individual Rights in Education, where I work, has analyzed the University of Alabama’s policies regarding student speech (“speech codes”) and has given the university a “red light” rating, which means that at least one policy clearly and substantially restricts freedom of speech. Specifically, every person in the residence halls should be, according to UA policy, “free from all forms of … discriminatory or inflammatory language, including, but not limited to, online/electronic, telephone, verbal, non‐verbal, or written communications with the intent to harm or incite.” In addition, students must “act with civility at all times.”
How can anyone meaningfully debate “things that touch the heart of the existing order” without there ever being a raised voice or an uncivil word? When debate is stifled, the results can be disastrous. In 1956, University officials suspended its first black student, Autherine Lucy, “for her own safety” due to mob violence and then expelled her when she sued for readmission because the suit “slandered” the University. Letting public university administrators shut down discourse can produce a false sense of “tranquility” – and real injustice.
And some of the University’s residence hall policy doesn’t even make sense. What do administrators mean by a “non-verbal … communication” that is intended to “harm?” The evil eye? Telepathy? It’s easy to mock this kind of nonsensical language, but the underlying problem is serious: Administrators can use this overly broad and vague policy to punish speech they simply don’t like. Any speech that provokes someone else to think, react and engage in a heated discussion is in some sense “inflammatory.” It’s also a fundamental part of any decent education.
At the end of the Barnette opinion, Justice Robert H. Jackson wrote: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.”
Students and faculty should heed yesterday’s editorial in The Crimson White and reject this kind of censorship. Contact FIRE at thefire.org or [email protected] and we’ll help you develop a strategy for restoring your First Amendment rights on this campus. We can help you engage with administrators, launch a free speech campaign, involve the media or even file a lawsuit.
It’s time for University of Alabama administrators to stop acting as though the First Amendment does not apply to them.
Catherine Sevcenko is an attorney and the Associate Director for Litigation at the Foundation for Individual Rights in Education.
