How To Do Things With(out) Words

Michael Dorf on free speech and violence:

"As widely reported in the media (see NYT story here), on Tuesday a noose was found on the door of Columbia Univesity's Teachers College Professor Madonna Constantine (who is African American). This ugly and despicable act has prompted a police hate-crime investigation and swift condemnation from students, faculty and administrators at TC and throughout the university, including the following statement from CU President Lee Bollinger:

Tolerance and mutual respect are among the core values of our diverse community, and all of us must confront acts of hate whenever they occur within it. As I said last night, an attack on the dignity of any member of our community is an assault on all of us.

(President Bollinger's full statement appears here. Professor Constantine's statement is currently on the homepage of TC, if you scroll down a bit.)

I fully share the sentiments quoted above, but it's worth noting what President Bollinger did not say. He did not say something like "The hanging of a noose on an African-American professor's office door is symbolic speech of a hateful message. Exposure of the university community to that hateful message in no way implies endorsement of it." And for good reason. In light of the history of lynching in the United States, the message of a noose under these circumstances is not merely abstract advocacy of racism or some related ideology. It is reasonably understood as a death threat. Free speech doctrine rightly treats threats of violence (whether or not racially motivated) as unprotected.

Numerous news stories and blogs have already linked the placement of the noose on Professor Constantine's door---and the university's reaction---to the Ahmadinejad speech. If a university need not permit a threat of violence against a particular faculty member---as it surely need not---why must it permit the speech on campus of one who has threatened to destroy an entire country?

First Amendment doctrine does not, of its own force, apply to TC or Columbia, which are private actors. However, President Bollinger and others within the university have repeatedly argued that because private universities are committed to the exploration of ideas, they should, as a matter of internal policy, be at least as protective of free speech as the First Amendment requires the government to be. And here it reasonably clear that First Amendment doctrine would distinguish between a targeted noose and a general speech. After all, the leading case on proscribable speech, Brandenburg v. Ohio, involved a rally featuring a burning cross and racist and anti-Semitic remarks; yet the Supreme Court held there that the state law, the indictment and the jury charge, in reaching "mere advocacy not distinguished from incitement to imminent lawless action," impermissibly targeted protected speech.

Now critics of the Ahmadinejad appearance have a fair point in noting that Ahmadinejad is not engaged in "mere" anything. As the President of a country that supports terrorism, attacks on U.S. troops, and more, his views do more than give offense. But that objection---if meant as a point about First Amendment doctrine---misses the point that Ahmadinejad's speech at Columbia was not incitement, nor did it put anyone in immediate fear (although it was deranged and profoundly offensive). So I'm pretty confident of the results under free speech doctrine in both cases: Ahmadinejad gets to speak (as even Bollinger's critics tacitly acknowledge in failing to have called for the government to block the speech) and the person who placed the noose on Professor Constantine's door, if apprehended, gets charged with a hate crime.

There remains the question, however, of whether a university community committed to free speech principles ought to voluntarily commit itself to every jot and tittle of First Amendment doctrine as decided by the Supreme Court. The foregoing analysis, after all, would permit a racist student group to hold a rally on campus at which crosses are burned and nooses displayed, so long as the racist students made clear that they were engaged only in "abstract" support for racism. One could reasonably conclude that the ideals of a university community include not only free speech principles but also a robust requirement of respect for other members of the university community. And sometimes even nominally abstract advocacy is so inconsistent with the respect requirement that it can be squelched. That, I take it, was the point of those who opposed the invitation of Ahmadinejad." (Michael Dorf, "The Noose, Brandenburg and Ahmadinejad Revisited," Dorf on Law, Oct. 11, 2007).