« Mootness, departmentalism, and universality | Main | So you want to be a law professor? (Updated and moved to top) »

Friday, June 26, 2020

Anti-racism and the First Amendment

Jaden McNeil is a student at Kansas State and the head of America First Students, an organization that believes Turning Point USA is too liberal. Yesterday, McNeil sent a tweet congratulating George Floyd on being drug-free for a month. The tweet drew responses and condemnation from several K-State football players, followed by further condemnation from the head coach, athletic director, and university president. Several players called on the university to do something to "handle" this, while another promised not to play for the school if it "tolerates ignorance such as this." The university president promised to review its "options."

But there do not seem to be any options for a public university to handle this. McNeil is an asshole and deserves (but probably does not care about) public opprobrium, but his tweet does not seem to fall within any unprotected category of expression. Universities are in a bind. They can develop anti-racism in their curricula and institutional activities, they can counter-speak to racist messages (as they have done), and they can adopt and promote anti-racist messages. But under current doctrine, they cannot stop individual students from being racist and from saying racist stuff in public spaces. And they cannot design codes of conduct and anti-discrimination policies that can stop individual students from being racist and saying racist stuff. Athletes are developing their voices and discovering their leverage, which is a good thing and a long time coming. But that leverage and the university's desire to field a football team cannot compel the university to ignore the First Amendment.

Like the 1960s, this period of protest and change could be remembered as much for the First Amendment activities and developments as for Fourteenth or Fourth Amendment developments (ideally all three). But that is a two-edged sword--the First Amendment may impose a barrier to some of the broadest intellectual goals of anti-racism and the broadest desires of those who want to stop racism. Unless the pressure of this moment compels a change in free speech doctrine, which seems unlikely and would be unfortunate.

Posted by Howard Wasserman on June 26, 2020 at 05:29 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink


Members of "the left," including the current delegate to D.C. who among other things back in the day was the lawyer of Clarence Brandenburg [v. Ohio] are well aware that people can tweet crude racist statements on Twitter w/o being expelled from universities.

They very well want to work toward societal change. They repeatedly tried to address racism and create means to help address and prevent the mentality here. The fact some people, much more going to these schools not joining in (except to do things like strongly reject the message etc.), especially at a stressful time like now speak with their heart like this notwithstanding.

It is amusing that one comment makes racists such a laughingstock given who is in power now. They are not quite an "outside" group at all. Such comments might help explain the sense of desperation the "I won't play here if you don't kick him out" comments might arise from. I would guess though that even those who say that know deep down assholes have a freedom to speak and their own comments is a form of pressure to do other things.

Posted by: Joe | Jun 28, 2020 1:31:33 PM

"outlawing "hate speech" as defined by the left"

Whatever "the left" will craft in their top secret bunker and "shove down the throats" of many non-left members of the Democratic coalition, a comment like this STILL will not like be the sort of actionable hate speech involved. Meanwhile, whatever Biden promises, the courts are well stocked with Trump appointees as well as those of a range of administrations that did things like uphold the rights of the Westboro Baptist side.

But, such fears will help explain many legal minds who will vote Republican this fall.

Posted by: Joe | Jun 28, 2020 1:16:50 PM

@ Douglas

I think you're right. For the two years that Biden is in office, I think you'll see him track hard to the left. That way, once he's served long enough that his term won't count as a term for the vice president, he'll resign for 'health reasons', putting a dedicated leftist at the helm of what they'll call a 'revolution' for (they'll hope) 10 years.

Posted by: thegreatdisappointment | Jun 27, 2020 11:33:04 PM

I wish I was as confident as you that a change in free speech doctrine is unlikely. I think it is more likely that if Biden wins the election, the Democrats will enact legislation outlawing "hate speech" as defined by the left, and Biden will promise to nominate judges and justices who will reinterpret the First Amendment to allow such a prohibition to stand. I hope I'm wrong, but the zeitgeist is running the wrong way.

Posted by: Douglas B. Levene | Jun 27, 2020 8:24:18 PM

The only thing that has made racists relevant again is the left. For some weird reason, the left decided it wanted to start fighting racists, who had been relegated to people making fun of them.

But then the left started treating them like some powerful enemy and, as a result, they created a 'powerful' enemy (what some might call an 'other' used to create and maintain group cohesion).

Which is all 'racists' are. An outsider group that the left can use to maintain a fatally diverse group and paper over contradictory political goals--for a time, anyway.

Posted by: thegreatdisappointment | Jun 27, 2020 6:19:03 AM

I don’t see the problem. If the goal is to actually make the world a more fair and racially equitable place rather than merely broadcast one’s woke credentials why is it even desirable to punish people for dumb comments like this. It doesn’t change minds it just makes them attractively forbidden and generates bitterness rather than persuading people.

The left (and I consider myself to be on the left) needs to decide if what it wants to do is actually work toward societal change which will require openly confronting and arguing against some pretty awful views or if this is all about virtue signaling.

Posted by: Peter Michael Gerdes | Jun 27, 2020 3:05:52 AM

Post a comment