Free Speech and Bigotry -- Rights and Interpretations

 

Let's take a look at the clash of free speech and unprotected speech.

In a report today (December 2, 2016), the Denver Post said University of Colorado’s School of Medicine is cutting ties with a faculty member who made a racist remark about First Lady Michelle Obama on Facebook.

Dr. Michelle Herren, who works at Denver Health Medical Center, holds a non-paid faculty appointment at the CU School of Medicine, and a medical staff appointment at Children’s Hospital, where Denver Health physicians supervise residents and other medical practitioners in training.

“We are beginning the process to terminate Dr. Herren’s faculty appointment,” Mark Couch, spokesman for the school, said Thursday. “She has expressed values that are at odds with ours, and she has compromised her ability to meet the teaching and patient care mission of the School of Medicine.”

As previously reported on The Root – which calls itself “the premier news, opinion and culture site for African-American influencers” – Herren posted a photo of Michelle Obama yelling on Facebook. Under the photo, Herren wrote:

“Doesn’t seem to be speaking too eloquently here, thank god we can’t hear her! Harvard??? That’s a place for 'entitled' folks said all the liberals! Monkey face and poor ebonic English!!! There! I feel better and am still not racist!!! Just calling it like it is!”

It is unclear whether Denver Health will take a similar action against her.

(Monique Judge. “Doctor Who Made Racist Comments About Michelle Obama to Lose Faculty Appointment.” The Root. December 02, 2016.)

Let's contrast this with an incident that took place in March 2015.

In this 2015 incident, members of a fraternity at the University of Oklahoma were filmed chanting that they’d rather see a black student lynched than as a member of their clan. Though the words are not all intelligible, the chant appears to be:

“There will never be a n—– SAE/There will never be a n—– SAE/You can hang ’em from a tree, but it will never start with me/There will never be a n—– SAE.” 
 
University president David Boren announced the expulsion of two students leading the chants on the grounds they “created a hostile learning environment for others.” The chant, which he called “exclusionary,” was not only “heard by those on a bus, but also impacted the entire university community as it was also distributed through social media.”

Yet, afterward, prominent legal scholars from the right and the left came to their defense. The university is a public institution, they say, and punishing the students for what they said – no matter how vile – violates the First Amendment’s commitment to “uninhibited, robust, and wide-open” discourse.

The belief is the First Amendment must protect the odious because we cannot trust the government to make choices about content on our behalf.

(Kent Greenfield. “The Limits of Free Speech.” The Atlantic. March 13, 2015.)

Is there a difference between the speech used by Herren and by the Oklahoma fraternity members?

Both of these incidents involve people using hateful, discriminatory words. In both, the parties intend malicious defamation of racial groups. Under the First Amendment, should we simply bear the affronts, ignore them, or speak out against them instead of punish them?

Greenfield attempts to delineate the difference between hate speech that targets groups and hate speech that targets individuals …

“The First Amendment tells us that threats are punishable, but only if they are targeted at specific individuals. Burning a cross on the front lawn of a family’s home can be a threat; burning one in a field outside of town is not. The latter is protected; the former is not. The secret of converting threats into protected speech, says the First Amendment, is to aim them at more people. 
 
“The First Amendment asks African American students at the University of Oklahoma to set aside their fear that a bus of white men cheerfully singing about lynching might end badly for someone, somewhere. No one in particular was the focus of the threat; it was a generalized threat of violence, receiving full constitutional protection. 
 
“The First Amendment tells us that the fear of those being targeted, no matter how reasonable, counts hardly at all. What matters is whether drunken frat boys intend to whip themselves into a murderous frenzy then and there, or whether they could wait awhile. The First Amendment tells us we may not punish them for expressing glee that someone, someday, would kill a 'nigger.' That would risk a slide down the slippery slope to tyranny.

“Yet is the slippery slope so slick that we cannot fathom any restrictions on the worst speech? Is the slope so steep that we cannot recognize the harms flowing from assertions of privileged hatred subjecting whole populations to fear of violence? Does it really risk tyranny to expel a couple of racist punks?

“If that is what the First Amendment means, I dissent.”

(Kent Greenfield. “The Limits of Free Speech.” The Atlantic. March 13, 2015.)

And, even if the Oklahoma students didn't target specific individuals while Dr. Herren did, both are members of institutions that chose not to tolerate such behavior. Indeed, both the students and Dr. Herren purposely compromised the integrity of their schools.

In the case of Herren, the hospital is exercising the right to an employer’s obligation to protect against a hostile workplace environment, especially since Herren's missions as a doctor and a teachers are to care for all patients and faculty.

In the case of the fraternity members, although they attended a public institution, the University of Oklahoma lists “abusive conduct” under “prohibited conduct” in its 2015 Student Rights and Responsibilities Code. So, Boren was saying that the students are being expelled not for their opinions per se, but because their speech was a form of discriminatory conduct that would create a hostile educational environment for black students.

I believe the lesson here is that many people consider all speech as free based on their understandings of an inalienable right under the Constitution. Making this false assumption, they do not care about the long-reaching effects of their racist words. They believe they are fully protected to make bigoted utterances without worry of the consequences. And, in many cases, the legal justice system does leave the “dirty work” of laundering social inequality to the private sector. Thus, most interpretation of unprotected speech is often left up to institutions like schools and employers.

Free speech is not an excuse for bigoted comments – even in America, the land of freedom and liberty. After all, we still live in a country where privilege is not equal. We still live in a society that views color as a difference maker. And, unfortunately, we still live in neighborhoods suffering from racial injustice.

Although most people in the U.S. claim they are not prejudiced, under the stress of conflicting emotions or within the relative safety of peer groups, these same individuals can spew hateful, biased speech. And, the irony is that after they do, they say like Dr. Herren, “I am still not racist.”