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Monday, May 07, 2018

Heckler's vetos and equal protection at Colorado State

Heckling becomes a heckler's veto when government action ratifies private preferences; ratification is necessary to create a First-Amendment-violative veto as opposed to a stand-off between competing speakers. That framing helps explain the real problem underlying the recent incident involving two Native-American prospective students on a tour at Colorado State. And it exposes the key shortcoming and blindspot in the lengthy, heartfelt letter on the incident from CSU President Tony Frank.

Two Native-American high schoolers from New Mexico were part of a CSU tour group. A woman on the tour became nervous around the two and called university police, complaining that the students' dress, manner, and quietness showed that they were definitely not part of the tour. Police questioned the boys (the body cam video is linked in the President's letter) for about five minutes before letting them go, at which point the campus group had moved on, so the two left campus. Watching the video, the officers are polite and never aggressive, although the questioning ("why didn't you answer the questions of others in the tour group when they asked") reflect a baseline of suspicion. The President expressed regret for the events and related how the school was using social media to reach out to the family because other attempts to contact them have been unsuccessful (read "we are publicly demagogueing them into responding to us and accepting our apology"--the weakest part of the letter).

The President uses his letter to call attention to the "battle with hate within our communities," to insist that "[t]here is no place for hate at Colorado State University," and to urge people to return from summer break "with a commitment to be a little kinder, a little better, to work a little harder at seeing each other’s point of view, and to use our voice." This emphasis on stopping private bigotry among members of the CSU community ignores  the role of government, particularly police, conduct. Private bigotry is inevitable and, in some contexts, constitutionally protected; it becomes a problem when government lends force to that private bigotry, even if only in a five-minute Terry stop. If the woman caller (who remains anonymous) wants to be suspicious and nervous around teen-age boys of color, that is, and should be, her business. The problem arose because CSU lent its coercive power to her bigotry, thereby causing an injury to the two boys. By shifting the emphasis on what everyone else can do to battle prejudice, Frank's letter exonerates his own governmental entity.

Posted by Howard Wasserman on May 7, 2018 at 09:31 AM in Constitutional thoughts, Howard Wasserman | Permalink


It's hard to add to Professor Fishkin's excellent comment but I can't help but pile on this gonzo instance of First Amendment monomania. You say that:

"Private bigotry is inevitable and, in some contexts, constitutionally protected; it becomes a problem when government lends force to that private bigotry, even if only in a five-minute Terry stop. If the woman caller (who remains anonymous) wants to be suspicious and nervous around teen-age boys of color, that is, and should be, her business. The problem arose because CSU lent its coercive power to her bigotry, thereby causing an injury to the two boys."

First, saying that private bigotry is inevitable seems rather quietist. Some quantum of private bigotry may be ineradicable, but isn't there much less of it today than fifty years ago, in part because our law against state bigotry or private employment/public-accommodation discrimination represent inculcates norms against bigotry in contexts that the state can't directly regulate, and in part because non-state-actor bigots are increasingly shunned and shamed? One could also accurately say that some amount of low-level public bigotry is inevitable, but what would the upshot of that be? Should we give up on policing public bigotry because it's inevitable?

Second, yeah, private bigotry is constitutionally protected in some expressive contexts. (It should be noted that calls to police are more regulable than most speech; I take it it's constitutional to make it a crime to give false information to 911, though I concede that a state probably couldn't specifically target bigoted spurious calls to police.) But what of it? It's a galumphing non sequitur to say that because private bigotry is constitutionally protected, it only "becomes a problem when government lends force to that private bigotry," and that "the problem arose" only when the police showed up. Not being able to go to a Starbucks or go on a college tour without having someone call up the police because of your race may not be the most harmful form of bigotry in the world, but it's certainly a problem. To say that the problem only arose because the police showed up in those cases overlooks that (1) the police have no ready way of detecting that race is really what's motivating the calls, which on their misleadingly reported face may appear to describe suspicious or trespassory behavior, and (2) that if someone called the police on you or me because of our ethnicity, it would probably ruin our whole day, frighten us, make us nervous about other acts of bigotry in the future, and ensure that we would never attend the college or go back to the coffee shop where it happened.

Third, maybe the wackiest thing you say is that "if the woman caller (who remains anonymous) wants to be suspicious and nervous around teen-age boys of color, that is, *and should be,* her business" (emphasis mine). Now, of course this woman shouldn't be -- and no one would ever suggest that she should be -- jailed or fined for her racist suspicions and anxieties. But you seem, if I'm reading you fairly, to have a problem with people, especially state university administrators, criticizing her attitudes, and in that sense making them their business, because she has a First Amendment right to her racism. Besides the now-repetitive rejoinder to so many of your posts that it is completely appropriate to criticize all sorts of speech and attitudes that we can't legally sanction, I simply can't understand why you are so invested in free speech if you have a problem with people vigorously condemning the attitudes expressed in each other's speech. The whole panglossian construct of the marketplace of ideas that grounds our rules against viewpoint discrimination concedes that there are bad and wrong ideas, but claims that they'll be weeded out over time by vigorous criticism. If people made a habit of not attacking each other's speech out of respect for the freedom of speech, none of the advancements we've made from in reducing virulent private racism, sexism, and so on would have been possible.

Posted by: Asher Steinberg | May 7, 2018 5:36:17 PM

The more effective issue here , has gone missing it seems, and it is those police officers conduct . For , being polite , is not sufficient , although extremely important . They had to exercise the right discretion. Any kind . They got a call or report . The information presented to them it seems , didn't raise any reasonable suspicion for action . Even not somehow . This lacks reasonableness . Even if they wanted to take precautions , they could just trace them , and watch them for further corroborating , whether , there is the slightest basis here for denying freedom or liberty of innocent individuals ( by questioning them) . So , they weren't trained to act so. It is a tort of the University also . The same general rules stemming from the fourth amendment , should be applied here :

Not sufficient to act lawfully , but also reasonably , reasonably means :

Relevancy , precaution , measurements, proportionality , before denying any constitutional right or causing any harm .


Posted by: El roam | May 7, 2018 2:39:12 PM

The remedial measures CSU announced include that all tour participants will be given lanyards of badges (apparently we do need stinkin' badges) and that all communications will happen through the tour guides. 911 calls can be anonymous, so I am not sure talking to the caller was an option. Nevertheless, I agree they should not have pulled the kids aside.

Posted by: Howard Wasserman | May 7, 2018 1:16:06 PM

I largely agree with Joey Fishkin's comment above, with one exception - I don't see why the police needed to question the boys at all. I can understand coming to the scene and talking to the woman who called the police to get more information - but once it became clear she was basing her suspicions on nothing more than racism, they should have left without involving the innocent bystanders.

Also, with respect to the woman - even if you were truly worried (which seems insane to me, but for the sake of argument) who calls the police based on vague suspicions while on a campus tour? Why not flag your concerns to the tour guide, if anything? Or go talk to an administrator? Or, god forbid, wait for the next tour?

Posted by: J | May 7, 2018 12:48:50 PM

I guess this post seems correct as far as it goes in applying doctrinal concepts from First Amendment-land (and general constitutional ideas about state action) to the story of this incident. But what that really shows is the limits of these doctrinal concepts, which don't help us come to grips with what happened in this story at all, and instead lead us on a detour.

I really do not much blame the police here. They could have and should have been more polite and even apologetic to the teens. But they needed to come when called, and their performance was relatively polite. The call, which reported ambiguous and confused information about vaguely "suspicious" behavior, in a muddled and unreliable manner, involved inherently subjective judgments about people who the police dispatcher could not see or hear. In this situation, the correct course of state action is to send the police to do what is hopefully a polite, deferential, even apologetic (in case of false alarm) Terry stop.

The fault here lies with the woman who made the call. But Tony Frank is correct to acknowledge that her behavior does not occur in a vacuum; it's not a case of one prejudiced bad apple in all of Colorado; rather, people's judgments about one another are a result of norms that are heavily reflective of broader community norms. CSU can only do so much to make the more sheltered white people of Colorado and beyond more comfortable with kids different from their own, but the university can do its bit, and that is what Frank is trying to do. It's not about constitutional law but about norms. To be Native American, wearing heavy metal clothing, taciturn, etc., should "read" to all parents as just another teenager. No one's full right to equal membership in a community is secure unless the community's norms make that equal membership possible. Getting there requires work; CSU can't integrate the schools of Colorado or make overly judgmental people less judgmental, but it can do its bit. Using this incident as a spur to improve some of the internal norms of its own community (where it has more power to change norms) is a start.

Liberals should go back and read their Mill. Mill was constantly pointing out the fact that norms can be as stifling as laws or other actions of the state. This is as true with questions of equality as it is with questions of liberty.

Posted by: Joey Fishkin | May 7, 2018 11:06:17 AM

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