By Jaimon Olmsted ’17
I write in response to David Canada’s piece The Supreme Court, Honor Code, and the Muppets: Reform for Free Speech and Expression, recently published in The Clerk. To me, this was a genre piece, in some respects the type of article that many young, opinionated conservatives at liberal arts schools feel the need to write before graduation. I don’t mean to make assumptions about Mr. Canada’s political affiliations, but the “free speech” refrain is commonly peddled by the political Right to justify both explicit and implicit discriminatory speech. We have all heard some version of: “Sure, Milo Yiannopoulos is repulsive but he has a right to call women, people of color, Muslims, etc, whatever he pleases… the real discrimination is when shop owners aren’t allowed to cite their religious beliefs when they refuse to serve gay people.” Though I have several gripes with this specific piece and the genre as a whole, most troubling for me is how the article suggests that there is no line separating “opinion” from hate speech. Given that the only example of “viewpoint discrimination” cited in the article is textbook racist expression, I am unconvinced that it is anywhere close to the dangerous problem Mr. Canada suggests it is.
Can opinions ever become categorically offensive and intolerable? Mr. Canada argues that Bert and Ernie in The Muppets trial should not have been punished because their Halloween costumes are protected under their right to free expression. But how far does that right extend? What if Bert and Ernie took their behavior to a new level and decided to exercise the right to free speech by yelling racial slurs at African-American peers or taunting classmates of Asian heritage with fake accents? Maybe Mr. Canada would argue that there is “value” in portraying someone or something for Halloween, while insulting someone to their face is insulting for insulting’s sake. But blackface is a racist relic of slave-era comedy, and like verbal slurs, is categorically offensive. The relative subtlety of a racist costume does not make it more acceptable than slurs.
This brings me to the discussion of the Supreme Court. I have taken two Constitutional Law courses here at Haverford, and I am a great believer in the importance of the courts and the value of our Constitution. But I am also perplexed by the theory that our Honor Code must mirror existing law as ruled on and established by the United States Supreme Court. Haverford is a private institution, not beholden to the same Constitutional provisions that hold state-run universities accountable. If we, as a community believe that a Court holding is incorrect and does not sufficiently protect the marginalized among us, we should govern ourselves in a way more fitting of our ideals and what we believe to be right. In fact, Mr. Canada mentions the 1896 ruling Plessy vs. Ferguson, that stands to this day as perhaps the most misguided of all Supreme Court rulings and was unanimously rejected in the 1955 Brown v. Board case. We are no more obligated in our community governance to abide by the 1992 R.A.V. ruling we deem erroneous, than we would have been to follow Plessy’s holding if we were at Haverford one hundred years ago.
Nonetheless, given that Mr. Canada’s article is primarily focused on the importance of the Supreme Court and its rulings, I will posit another legal example to justify punitive actions being taken against those who use their free expression in a derogatory and offensive manner.
In 1942, Justice Frank Murphy wrote the majority opinion for a unanimous Supreme Court decision in one of my favorite cases, Chaplinsky v. New Hampshire.
The facts of the case have been disputed, but the story the Court followed was this: Chaplinsky, a Jehovah’s Witness, was standing on a street corner in New Hampshire passing out pamphlets and loudly criticizing other forms of religion. As an angry crowd gathered, a marshal suggested to Chaplinksy that perhaps he should call it a day, in order to avoid potential physical abuse at the hands of the growing mob. As the marshal persisted, Chaplinsky angrily yelled at him, saying “You are a God-damned racketeer” and “a damned Fascist and whole government of Rochester are Fascists or agents of Fascists.” Chaplinsky was arrested under a law that prohibited verbal abuse in public space. The Supreme Court ruled against Chaplinsky and in favor of the state of New Hampshire, saying the law was appropriately narrowly tailored to prohibit “fighting words” that would inevitably lead to unrest and physical confrontation. The following are excerpts from Justice Murphy’s opinion:
“There are certain well defined and narrowly limited classes of speech, the prevention [p572] and punishment of which have never been thought to raise any Constitutional problem. [n3] These include… the insulting or “fighting” words — those which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace. [n4] It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. [n5]…
The word “offensive” is not to be defined in terms of what a particular addressee thinks. . . . The test is what men of common intelligence would understand would be words likely to cause an average addressee to fight. . . . The English language has a number of words and expressions which, by general consent, are “fighting words” when said without a disarming smile. . . . Argument is unnecessary to demonstrate that the appellations “damned racketeer” and “damned Fascist” are epithets likely to provoke the average person to retaliation, and thereby cause a breach of the peace” (1).
Let me rewrite that last part: argument is unnecessary to demonstrate that the wearing of blackface, or the burning of a cross, is likely to provoke the average person to retaliation. So, maybe we should say that all expression is protected, and Honor Council has no right to impose punitive measures against individuals, regardless of the offensiveness of their words or actions. But in that case, the Supreme Court suggests we should expect people to physically retaliate. Blackface invites backlash, both verbal and physical, because it is offensive and harkens back to the ugly history of minstrelsy and the dehumanization of black people. For this reason, Supreme Court doctrine holds that such expression should be prohibited, in the interests of maintaining social order.
Antonin Scalia’s majority opinion in R.A.V., the case Mr. Canada has cited, reiterates that, as stated in Chaplinksy, not all speech is protected. He acknowledges that “fighting words” is still a legitimate justification for limiting free speech rights, but because the St. Paul ordinance identifies, by name, various categories of impermissible speech, Scalia deems it unconstitutional. Scalia’s problem with the St. Paul ordinance is not that it attempts to limit harmful speech, but rather that it attempts to limit speech based on a few characteristics: He outlines his frustration with the law by saying: “Displays containing abusive invective, no matter how vicious or severe, are permissible (under the ordinance) unless they are addressed to one of the specified disfavored topics. Those who wish to use “fighting words“ in connection with other ideas — to express hostility, for example, on the basis of political affiliation, union membership, or homosexuality – are not covered” (2). In other words, Scalia says that a ban on abusive speech, categorized as “fighting words,” could easily be permitted, but because in this instance the banned speech is limited to specific topics it is unconstitutional. Section 3.04 of the Honor Code bans “acts of discrimination and harassment, including but not limited to, (etc)…” Mr. Canada far too easily rejects the importance of this inclusive language, which comfortably addresses the content discrimination concerns Scalia raises. The late justice himself stated that “An ordinance not limited to the favored topics, for example, would have precisely the same beneficial effect” and would be permitted. The language of Section 3.04 ensures that our Honor Code is not limited to favored topics, but prohibits hate speech of all kinds.
Of course, in the context of “fighting words,” it’s not just social order we are worried about. Saying or doing offensive things should not be tolerated because it harms many and helps no one. This is not to say that I disagree with the premise that there is substantial room for subjective judgment in the Social Honor Code, and I absolutely agree that we should protect “unpopular opinions.” But examples of unpopular opinions at Haverford are things like saying ObamaCare should be repealed or the United States should spend more money on its military. I disagree with both of those viewpoints, but I respect one’s right to believe in them and to defend them. What I don’t respect is hate speech. Not all opinions are the same, and some don’t deserve a shred of protection.