The UNR Student And Charlottesville: A Look At Free Speech Law

Aug 15, 2017

A University of Nevada, Reno student made headlines this weekend after a photo showing him at a white nationalist rally in Charlottesville, Virginia circulated nationwide.

The 20-year-old's participation sparked outrage among many fellow students and community members, who are calling for his expulsion. But UNR President Marc Johnson said Monday the school does not have a legal reason to do so.

Reno Public Radio's Noah Glick sat down with Patrick File, an assistant professor of media law at UNR, to learn more about why the university made that decision and the differences between free speech and hate speech.

KUNR: Let’s talk about free speech. Where do we stand with free speech right now?

File: It’s what you might call a critical juncture. Freedom of speech is a principle and a value that is at the center of our democratic society, and now’s the moment where some of those values are being tested.

We deal in hypotheticals in law a lot, and we are reaching a kind of ‘what do you do’ point in many ways, with what speech we would truly stand up for and where we might draw the line, and why we might draw the line where we might draw it. And exactly how free we think speech should be.

Are there restrictions on free speech? Are there things that aren’t protected?

As a general rule, speech can’t be banned or punished purely because it’s hateful or offensive. Where it can be punished or banned, and where the Supreme Court has allowed this to happen, is when speech expresses a true threat, which is to say it is threatening against an individual with violence or death threat.

This also applies to incitements to violence. A general incitement, ‘Let’s go get those guys,’ or ‘Let’s start a revolution,’ or something like that is generally going to be too broad. It’s got to be something that is aimed at inciting and is likely to incite imminent lawless action.

And then thirdly, is fighting words. In 1942, the U.S. Supreme Court decided a case, Chaplinsky v. New Hampshire that essentially said that there are some words delivered in the right context and in the right way that basically have the effect of force. They are violent in and of themselves.

The events of this weekend in Charlottesville, they bring up this idea of hate speech. What is hate speech and is what we saw this weekend an example of hate speech, or speech that could be banned?

So you’re asking two questions, right? Is it hateful speech that’s offensive to many people and ultimately sort of noxious? Sure, of course. It’s hateful. It’s offensive.

At the same time, that in and of itself is not something that allows under the First Amendment, the government to prevent it from being said, or a rally from taking place.

I want to shift to the attention that’s been given to a UNR student who was photographed during the rally this weekend. And there’s been some calls to fire this person or expel this person. I’m curious to know, can the university do that? Is that a violation of his First Amendment rights?

As a general rule, because the university is a public institution and therefore is the government, the student does have First Amendment free speech rights. And therefore, punishing, sanctioning or expelling this student for the speech and the speech alone would be itself quite likely considered to be a violation of First Amendment rights. So that would be something that would be challengeable.

It seems to me that the university could be in a potentially awkward position of keeping students safe on campus while still allowing the flow of ideas. What are your thoughts on the university’s position right now, and some of the challenges they may be facing as the school year starts?

One of the things that has been clarified in this debate a bit is this distinction I think we ought to make between physical safety, where we’re dealing with speech that’s not protected: threats to people’s life and limb.

At the same time, we also have on the other side of the ledger concerns about intellectual safety, that by allowing people to express those ideas, that we’re corroding the community, that we’re heading in the wrong direction. That’s where the First Amendment would council us to say this is a discussion we must have, that at a university of all places. And if those ideas are noxious and disgusting to us to the point that they are not able to be accepted in the marketplace, then that is how our democracy is meant to function.

And it’s not always easy. We’re working in a world of all caps on Facebook, and tweets and Instagram posts that don’t necessarily lend themselves to nuance. It may not always be that simple, and where but at a university to have that conversation?

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