A select group of student-athletes at Kansas State have begun circulating a letter on social media that states they will not play in games or participate in any donor or recruiting events for the Wildcats until the university makes changes that address racism on its campus.
The letter demands that K-State administrators create a policy that will expel any student who openly displays racism on any platform, such as social media or at school or athletic events.
Another demand: The university must deliver “strong consequences” to K-State student Jaden McNeil, who founded the white-supremacist group America First Students in Manhattan and posted an insensitive tweet about George Floyd that sparked a mushroom cloud of outrage from the Wildcats’ Black student-athletes on Friday.
I share the rage that K-State students feel about McNeil. I don't know, though, how K-State accommodates their demands without running afoul of the First Amendment. I don't even know if it should.
The law on this seems pretty clear:
In case after case, courts across the country have unequivocally and uniformly held speech codes at public universities to be unconstitutional. Public institutions of higher learning attempting to regulate the content of speech on campus are held to the most exacting level of judicial scrutiny. Typically, courts find speech codes to violate the First Amendment because they are vague and/or overbroad. This means that because the speech code is written in a way that (a) insufficiently specifies what type of speech is prohibited or (b) would prohibit constitutionally protected speech, it cannot be reconciled with the First Amendment’s protection of freedom of speech.
That's the "can" part. How about the "should?"
I've written before why I think restricting speech might be harmful to folks like the angry K-State student-athletes, from a purely utilitarian standpoint.
If American governance and culture are indeed soaked in hundreds of years of white supremacy, and:
If the ACLU protects the rights of anybody to speak, no matter how unpopular the stance or against the grain of government or public opinion, then:
Organizations like Black Lives Matter that are seeking racial justice are probably the prime beneficiaries of the ACLU's work and an expansive application of the First Amendment. After all, protests by minority activists — no matter how justified — are rarely popular.
The ground has shifted since I first wrote that. The BLM movement is relatively popular now, and that's a good thing! But activists had to endure a few years of Trumpism and a cultural default to honoring police officers before that was the case. They were able to make that case because of their right to free speech. The First Amendment protects dissenters and scoundrels. The main defense I can offer for the "defending scoundrels" part is that they are part of the price for "defending dissenters." And the right to dissent is elemental to democracy.
My heart sides with K-State's minority students. But kicking Jaden McNeil out of school breaks down the protections that allow Black Lives Matter activists to have a voice and be effective with it. I'm not sure the conflict can be resolved.
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