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First Amendment: A time for more speech in the face of bias, bigotry

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Gene Policinski
January 30, 2014

One of the most difficult times for the public image of the First Amendment is when its protection for freedom of expression means sheltering speech that most people find offensive, degrading or vile.

Arizona State University just cut ties with a fraternity, Tau Kappa Epsilon, over a party that the local chapter hosted on Martin Luther King Day. At that party, based on photos later posted on social websites, frat members and others dressed in what’s been described as “gang clothing,” flashed gang hand signals and drank from watermelon cups.

The university also was considering requests to expel students who participated in the offensive behavior, though some community activists properly are having second thoughts about that demand.

Racist conduct and offensive images, particularly on a day memorializing a man who fought and died in the service of racial equality are, without doubt, worthy of condemnation. And ASU likely is within its rights to dismiss the TKE from its list of affiliated fraternities.

But there’s also little doubt that the students’ “speech”—as repugnant as it is—is protected by the First Amendment. Better that the university community and the community-at-large use their own First Amendment rights to loudly condemn racist stereotypes and thoughtless insults.

Government may restrict what we say only in very narrow circumstances: public safety, true threats and speech that could incite immediate violence are among the limited reasons. In most cases, it should be the court of public opinion rather than the court of law that passes judgment and reacts to our speech and ideas.

Only a generation ago, some universities expelled students who offended many in their communities by speaking out on what campus officials thought was an inappropriate topic, racial equality, including some courageous young people who participated in the historic Freedom Rides a half-century ago.

There’s no such positive message in the antics at Arizona State. But we demand that government to be viewpoint and content-neutral when it comes to freedom of expression. The First Amendment doesn’t allow for a government agency that decides “this speech is OK, this is not.”

Here’s another approach to fixing what’s broken at ASU: Just a few days before the party, a colleague and I welcomed to the Newseum the attendees to the National Association of Black Journalists annual Hall of Fame event. Among the inductees this year: a soft-spoken photographer, Moses Newson, whose iconic images documented the high points of the civil rights movement 50 years ago. Newson was riding on one of the first Freedom Ride buses when, on May 14, 1961, it was attacked outside Anniston, Ala., by a gang of racist thugs who broke out windows, beat the Freedom Riders and torched the bus.

Newson stayed on the bus as long as possible, documenting the violence, but finally had to tuck his camera, for safety, under a seat before fleeing for his life. As the Freedom Riders left the bus, they were attacked and beaten. Months later, the bus company mailed him the camera—a burned and melted hulk. That camera is on display among the civil rights exhibit upstairs from where Newson was honored for his courage in documenting the great moments of the civil rights movement.

More effective than expulsion of the misguided and uninformed would be a program in which TKE members and their party guests learned about the Newson and the Freedom Riders, studied the meaning of the work of the Rev. Martin Luther King Jr., and examined the history of the civil rights movement, and its use of all five freedoms of the First Amendment to change a nation.

Gaining an understanding of how freedom of religion, speech, press, assembly and petition can and did bring positive change to our society may not entirely erase the sting of a night’s thoughtless antics and insults. But it would be a good start.

Gene Policinski is chief operating officer of the Newseum Institute and senior vice president of the Institute’s First Amendment Center. He can be reached at gpolicinski@newseum.org.



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