Colleges and the media have glaring double standards about what speech they consider protected. Left-wing students can advocate violence or ethnic cleansing, at least if their speech is not deemed to be a “true threat.” But peaceful non-leftist speech that offends black people is treated as totally unprotected by the media, even when it is not threatening at all — such as a flyer saying “It’s OK To Be White,” or a flyer with a confederate flag on it, which led to FBI investigations of such obviously protected speech, even though the Supreme Court has found far worse speech to be protected by the First Amendment. A college suspended a conservative for months after he criticized the use of race as a factor in selecting Supreme Court justices, even though courts have ruled that the First Amendment protects harsh criticism of affirmative action. Obnoxious white students who aren’t left-wing get expelled for approving of violence against black people, even when such speech is off campus, was protected by the First Amendment according to legal experts, and did not contain threats.
Students at pro-Hamas rallies at Columbia University and elsewhere proclaim that the land that is now Israel will become entirely Arab, and devoid of Jews, chanting that “from water to water, Palestine will be Arab.” (The “waters” this chant refers to are the boundaries of Israel. The western edge of Israel is one water — the Mediterranean Sea — while the other water is the Jordan River — part of which lies on Israel’s eastern border.) Palestine would become entirely Arab by killing or driving out millions of Jews, “from the river, to the sea.”
The media and colleges treat these chants as protected speech, even though they offend most Jews (95% of whom support the existence of the State of Israel), and are viewed by some Jews as advocacy of genocide. The First Amendment sometimes protects even speech that celebrates violence, according to the Supreme Court, such as a Klan leader’s racist remarks at a farm about “revengeance.”
But the media and colleges completely ignore the First Amendment when certain kinds of speech occur on campus that offend most black people, such as the confederate flag. The confederate flag is not threatening or menacing, and courts have ruled that it can be protected speech in cases like Sons of Confederate Veterans v. Glendening (1997), which ruled that the First Amendment protects the display of the confederate battle flag by motorists.
But when someone posted non-threatening confederate-flag flyers saying “Huzzah for Dixie” at American University in 2017, the local FBI office investigated the flyers as if the First Amendment did not exist, and the university treated the flyers as a threatening attack. The University president spoke of people being “intimidated” and the flyers as “attempts” to cause “harm and create fear…When one of us is attacked, all of us are attacked.’”
Investigators were egged on by Washington Post editorial board members and the Washington DC mayor, who wanted the poster of the flyers punished. No one pointed out prosecuting the person who posted the flyers would have violated the First Amendment. The New York Times reported on the flyers in a tone that suggested that the university had failed to do its duty to catch and punish the perpetrator. The New York Times reporting did not even mention the First Amendment, thus implying that free speech does not include racist speech on campus. It treated court rulings about free speech on campus as if they did not exist, such as a court ruling overturning discipline of fraternity members for a racist blackface “ugly woman” skit that infuriated many black people on campus (Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University (1993)). It ignored court rulings in Washington, DC that blocked prosecutions over far worse racist speech, such as a racist man who left a phone message for a black prosecutor calling him “a criminal, a negro” (United States v. Popa (1999)).
Author Abigail Shrier describes the double standard in colleges and the media in an enlightening Twitter thread:
“Get the sense that we talk about on-campus harassment and intimidation differently when the subjects are Jewish students? In 2017, an anonymous jerk put flyers with a Confederate flag and cotton around American University’s campus. They read ‘Huzzah for Dixie’ or similar.”
“The university went into emergency response mode, treating these flyers as a criminal threat. It published CCTV video and immediately asked the public for help in identifying the man who posted the racist flyers. American University Police: ‘Can you identify the suspect in last night’s defacing property bias-related incident? Video is available at https://youtu.be/LaeFkFAW8ZM.'”
“An APB – called “CRIME ALERT” – went out for his arrest. ‘American University Police. Sep 27, 2017. American University Police: ‘AUPD has issued a crime alert for a bias-related defacing property incident that occurred last night.'”
“[The New York Times] covered the incident. The words “free speech” don’t appear in the article. No one considered the idea that these racist flyers represent protected speech. No organizations or talking heads rushed to defend the poster’s speech rights.
“[New York Times]: ‘This is at least the second time this year that racist symbols were discovered on the school’s campus. In May, bananas were found hanging from nooses on campus…The F.B.I. said at the time that it was helping the university investigate.’ NOTE: The FBI was called.”
“The University President issued this statement: ‘I ask you to join me in standing together and show that we will not be intimidated,’ she said. ‘AU will respond strongly to attempts designed to harm and create fear… When one of us is attacked, all of us are attacked.’”
“But what about free speech? Maybe the pendulum is swinging back, and campuses are now becoming places where you can call for the death of Jews, display insulting depictions of the Prophet Muhammed, hang Confederate flags and use the ‘N-word’ without repercussions? No way.”
“Campus speech is as restrictive as it has ever been. There are simply two sets of rules on American campuses. One for the favored: anything resembling intimidation and harassment here is punished instantly.”
“A second standard exists for the disfavored. Intimidation and harassment of the disfavored are loudly defended as free speech. Jewish students fall into the latter category. Jewish students know it. We all know it.”
By contrast, favored groups on campus, such as blacks, are protected against even very mild speech that college officials think might upset them, such as flyers that say “It’s OK to Be White.” At Western Connecticut State University, university president John Clark threatened the unknown persons who posted flyers saying “It’s OK to Be White.” He said that if they are students or faculty, they will face the “severest disciplinary actions, including dismissal as well as possible civil and criminal actions.”
The university said its officials immediately reported the flyers to local and state police and the FBI office in New Haven, all of whom were investigating who made the flyers.
Law professor Eugene Volokh, whose writings have been cited by the Supreme Court, noted that the flyers saying “It’s OK to be white” “are of course fully protected by the First Amendment.”
Volokh is right. Even if these messages are viewed as racially or religiously inflammatory, they are still protected by the First Amendment. The federal appeals court with jurisdiction over Connecticut ruled in 1992 that a professor’s derogatory beliefs about black people were protected by the First Amendment. (See Levin v. Harleston, 966 F.2d 85 (2d Cir. 1992)). In 1990, it ruled that a professor had a First Amendment right to teach that Zionism is racism, even though that caused a “furor” on his campus. (See Dube v. State University of New York, 900 F.2d 587 (2d Cir. 1990)). The Supreme Court ruled that white nationalists had a First Amendment right to march without being charged more for a permit based on the content of their speech. (See Forsyth County v. Nationalist Movement (1992)).
The FBI had no possible justification for investigating. Federal law doesn’t forbid flyers that people find racially or religiously offensive, and laws against things such as littering are state laws, not federal laws enforced by the FBI.
In any event, Federal officials such as FBI agents must comply with First Amendment limits on their investigations. In 2000, a federal appeals court ruled that federal officials had violated the First Amendment by investigating citizens for 8 months over flyers and speech about a housing project for disabled people that allegedly exhibited prejudice. (See White v. Lee, 227 F.3d 1214 (9th Cir. 2000)). The court ruled that even if their speech was prejudiced, it was still protected by the First Amendment because it did not incite imminent lawlessness. Thus, it violated the First Amendment to subject them to a prolonged, speech-chilling investigation, even if federal officials thought that their speech violated a federal civil-rights law. The FBI should heed such rulings by not investigating flyers that say “It’s OK to Be White.”
By contrast, nothing happens to left-wing activists for publicly saying, “I hate white people.”
There are isolated cases where colleges have taken action against left-wing activists for making what were perceived as threatening remarks, after those remarks offended wealthy donors. At Columbia University, a leader of the anti-Israel protests, Khymani James, filmed himself saying, “Zionists don’t deserve to live,” and “Be glad — be grateful — that I’m not just going out and murdering Zionists.” Earlier, he had told a meeting, “I hate white people.” He has been temporarily banned from campus after his comments about yearning for the death of Zionists became public. By contrast, the university has not expressed disapproval of his earlier “I have white people” remarks, which were no worse than what black activists say everyday on campus.
The university originally did nothing after becoming aware of James’ comments, until his comments attracted widespread publicity off campus, making the university look bad. It was aware of them for months before taking any action against him, because he had proudly shared those comments with college administrators.)
“The radical and hate-filled statements by James are hardly unique in higher education. Administrators, faculty and admissions committees have fostered this environment, including professors supporting violent actions against conservatives and dissenters,” says law professor Jonathan Turley.
For example, UCLA’s Director of Race and Equity, Johnathan Perkins, has frequently advocated racial discrimination against whites, and expresses hostility toward whites. He tells whites not to wish him a “Happy Juneteenth” because he will “flip tf out” if they do. He says that whites, unlike Blacks, “should NOT be awarded the day off for Juneteenth,” even though that is discriminatory. Perkins says that while “most” people “value community,” “white people do not.” He said on Juneteenth 2023 that he was “Blaming white people, who should ALL be working today, of all damn days.”
In 2022, Perkins reacted to the death of England’s Queen Elizabeth by saying,“Good riddance.” He also publicly yearned for the death of Supreme Court Justice Clarence Thomas, saying on Twitter that “no one wants to openly admit [we all] hope Clarence Thomas dies.”
Perkins stereotypes whites, claiming that “every white person is racist to some degree.” This broad stereotype might lead to civil rights violations. Courts have ruled that “baseless accusations of racism” made against white employees because they are white can be racial harassment that contributes to a racially hostile work environment in violation of the 1964 Civil Rights Act. (See Underwood v. Northport Health Services (1989)).
Perkins has claimed that “white people cannot be victims of racism,” and “only white people can impose racist harm.” But the courts have rejected this idea, such as in striking down various college affirmative action policies. Courts have ruled that racial harassment is illegal even when it is committed by blacks against whites, in cases such as Huckabay v. Moore (1998) and Bowen v. Missouri Department of Social Services (2002).
The federal courts have sentenced non-whites to prison for committing violent racial harms — hate crimes — against whites. Those decisions make plain that it is not “only white people” who “can impose racist harm,” as Perkins claims.
