When it is ideologically convenient, progressives switch back and forth between being “free speech absolutists” in defense of their own side’s speech, to being avid censors of ugly speech by the other side. A classic example is the progressive media whipping up a frenzy recently to get the University of Mississippi to investigate a fraternity brother for making monkey noises protected by the First Amendment, in response to a progressive black pro-Palestine protester who had “a heated exchange of words with several” counter-protesters. The media are doing this even though progressives themselves have relied on racially-offensive monkey tropes against black conservatives like Larry Elder and Clarence Thomas in the past. These same media have been busy raising First Amendment concerns in discussing the removal of left-wing protest camps from private college campuses, even though there is no First Amendment right to camp out on someone else’s property, even as a protest, according to Supreme Court rulings like Clark v. Community for Creative Non-Violence (1984).
The fraternity brother who made monkey noises has already been expelled by his fraternity — which has a right to freedom of association — but he is also being investigated by school officials at “Ole Miss” over his constitutionally-protected expression, which is more troubling. The university is investigating even though state universities, unlike fraternities, are bound by the First Amendment, which protects campus speech that is crude and violates “conventions of decency,” as the Supreme Court explained in Papish v. Curators of the University of Missouri (1973).
The Hill reports on how Ole Miss is responding to the torrent of bad publicity it got for two successive days from the progressive media:
Chancellor Glenn Boyce said the counterprotesters’ chants and actions Thursday contained “hostility and racist overtones.” Video showed a group of white men standing across from a lone Black woman participating in the protest, with the men dancing, hooting and chanting. One man mimicked a monkey.
“From yesterday’s demonstration, university leaders are aware that some statements made were offensive, hurtful and unacceptable, including actions that conveyed hostility and racist overtones,” Boyce wrote.
“To be clear, people who say horrible things to people because of who they are will not find shelter or comfort on this campus,” he added.
But the First Amendment often protects “people who say horrible things to people because of who they are” in public settings. As the Supreme Court observed in Matal v. Tam (2017), “Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.'”
Yet progressives want “Marquis of Queensberry” rules for protests, where left-wing pro-Palestine protesters can say say things that offend a minority group like Jews (like calling for the abolition of the Jewish state or wearing Hamas headbands or waving Hezbollah flags), or even amount to veiled advocacy of genocide, while counter-protesters must avoid offensive commentary. But speech at a public protest is protected by the First Amendment, even if it is racially offensive and angers the other side. Progressive media have argued that even advocating genocide should be protected when it is part of pro-Palestine protests on campus. But not one news article about the University of Mississippi controversy has even mentioned the possibility that the First Amendment is relevant to Ole Miss’s investigation of the fraternity brother. The news articles about it seem designed to shame the university into disciplining the frat boy for his perceived racism.
That is not because the First Amendment doesn’t exist, or because it doesn’t protect racist frat boys. In public settings, even crudely racist gestures and remarks are generally protected by the First Amendment. A federal appeals court overturned a fraternity’s discipline for a racist, blackface “ugly woman” skit in Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University (1993), rejecting the university’s argument that it could restrict speech based on its racist viewpoint to prevent a “hostile learning environment for women and blacks.” Earlier, that court ruled that an off-duty cop had a First Amendment right to perform in blackface, even if it angered members of the black community, in Berger v. Battaglia (1985). The 1993 ruling in favor of the fraternity cited the Supreme Court’s ruling in R.A.V. v. St. Paul (1992), which struck down a ban on race-based fighting words because it discriminated based on viewpoint. The Supreme Court declared that the government had no “authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules” by not engaging in insults.
Yet, on America college campuses, progressive protesters can fight freestyle by saying whatever they want, while counter-protesters must follow Marquis of Queensberry rules by avoiding offensive commentary, even when it is less offensive than a race-based fighting word (and less offensive than the advocacy of anti-Semitic genocide in the Middle East — such as purging Palestine and Israel of all Jews — that college officials say must be tolerated).
The progressive media likes this double standard. When a white progressive dressed in a monkey mask and threw an egg at black Republican candidate for governor Larry Elder, the media showed none of the outrage they are displaying now at the Ole Miss counter-protester, who did not throw an egg or otherwise commit assault and battery unprotected by the First Amendment. Yet, as AG points out, “The press just spent 2 days on a 2 second clip of one student making bigoted gestures at Ole Miss and tried to imply those actions represent the entire crowd. it’s already been covered by multiple news outlets, the student’s info is everywhere, & the school is investigating them. [By contrast] we have dozens … chanting for ethnic cleansing at MIT. It’s hardly a solitary incident. We have no major news articles, barely any reporters sharing it, no school investigation, none of the students being identified. Same story with similar video at Columbia. Dozen+ videos of protestors refusing to allow people to walk to parts of campuses. Other videos of harassment and assaults. You see the problem? It’s becoming obvious that there is an effort to cover for one particular mob by media and institutions ignoring their worst behavior and refusing to enforce the rules against them. They are being held to a different standard and that’s a recipe for complete abandonment of the rules.” The progressive media has paid little attention to what is happening at MIT, where protesters “chant that ‘Palestine will be Arab’ and ‘Death to Jews’” in Arabic, then chant in English that “there is only one solution, Intifada revolution.”
“Frat parties with offensive themes are swiftly punished” by colleges, “But publicly contemplate murdering Zionists? That’s a different story,” notes Bari Weiss. “There Are Two Sets of Rules for Speech,” explains an article in The Free Press by Abigail Shrier. She describes how “racially insensitive” speech like flyers bearing confederate flags lead to campus crackdowns by progressives, and how progressive college officials quickly respond to incidents where “students hold culturally insensitive themed frat parties,” or people use “a word in Mandarin that sounds like the N-word”, or “even when students or faculty make the familiar conservative argument that affirmative action sets black students up to fail.” Meanwhile, there is far less reaction by our progressive colleges when left-wing protesters wave “the flag of a terrorist group,” write “burn you filthy zio” to a student, tell “Jewish students to ‘go back to Poland’ where millions of Jews were murdered in gas chambers,” pull “down the American flag over a statue of John Harvard” and replace “it with the Palestinian flag,” or call Jews “Hitler’s children.”
When speakers are not progressive, progressives exhibit far less tolerance. Western Connecticut State University President John Clark threatened those who posted flyers saying “It’s OK to Be White.” He said they would face the “severest disciplinary actions, including dismissal as well as possible civil and criminal actions” and that police were investigating. Law professor Eugene Volokh, whose writings have been cited by the Supreme Court, noted that the flyers were “of course fully protected by the First Amendment.” But progressive media, such as the Hartford Courant, did not even mention the First Amendment in reporting on the controversy. They refused to do so, even though federal appeals courts have ruled that even Nazis have a First Amendment right to speak and assemble on campus. (See National Socialist White People’s Party v. Ringers (1973)). Saying “It’s OK to Be White” is much less offensive than advocating Nazism.
Ole Miss is acting against the backdrop of this progressive double standard. It has gotten a great deal of bad press over the last several days from the media about the monkey noises made to a progressive black protester. So it is not surprising that it is investigating the counter-protester who made them, even if punishing him would violate the First Amendment. Punishing a speaker who offends progressives can appease the progressive media, or appease black student groups and the NAACP, which wield considerable influence even on campuses in red states, due to their ability to file civil-rights complaints with progressive civil-rights agencies — leading to investigations that drag out for months and inflict reputational damage — and due to their ability to create campus unrest and trouble for administrators. When I attended the University of Virginia, some college administrators lived in fear of offending the Black Student Alliance, which could turn out angry demonstrators on short notice and trigger bad press from the Washington Post.
Bad publicity can cause a university millions of dollars in economic harm. That helps explain why colleges have taken action against racist speech that courts later ruled was protected by the First Amendment, in cases like Levin v. Harleston (1992). The university in that case took action against a white professor whose publications depicting blacks as inferior resulted in “widespread media attention” at the university’s expense.
By contrast, the cost of violating the First Amendment can be quite low. The Eleventh Amendment protects state universities from having to pay damages for First Amendment violations. Judges can issue injunctive relief against state universities, and award attorneys fees against them, but that is seldom a multi-million dollar cost. In theory, a student can sue a college official for damages under the First Amendment, but a government official can sometimes convince a judge he is entitled to qualified immunity even if he violated the First Amendment. Moreover, a jury would have to award damages, and some jurors could find this counter-protester very unsympathetic. Civil rights plaintiffs who are viewed as unsympathetic may recover just a few dollars in damages.
The Ole Miss counter-protester is definitely unsympathetic to the media (and presumably to many ordinary people as well). When a Congressman approvingly retweeted video of the counter-protesters at Ole Miss, the NAACP filed a civil-rights complaint against him, reported The Hill. It wrote that “Rep. Mike Collins (R-Ga.) shared the video of the harassment last week, saying it showed ‘Ole Miss taking care of business.’ The NAACP filed a complaint with congressional leaders Saturday over Collins’ conduct, demanding an Ethics Committee investigation.”
Ironically, the conduct that the progressive reporter for The Hill labeled as “harassment” is much milder than the speech the NAACP itself engaged in, but was deemed protected speech by the U.S. Supreme Court, in NAACP v. Claiborne Hardware Co. (1982). In that case, the NAACP had called for “a total boycott of all white-owned businesses in Claiborne County” and said hyperbolically that “If we catch any of you going in any of them racist stores, we’re gonna break your damn neck.” Making monkey noises to a protester, while offensive, is not sufficiently severe or pervasive by itself to create a racially hostile educational environment, in violating of laws banning racial harassment in education, like Title VI of the Civil Rights Act. Even repeated instances of name-calling often don’t constitute discriminatory harassment, in the eyes of the courts, because they aren’t severe and pervasive. (See, e.g., Hawkins v. Sarasota School Board (2003); Burwell v. Pekin Community High School District (2002)).
A federal appeals court has repeatedly struck down campus racial and sexual harassment policies where they banned speech that created a hostile environment, but failed to require a showing of severity or pervasiveness for discipline, in Saxe v. State College Area School District and DeJohn v. Temple University (2008). It found that omitting a requirement of severity or pervasiveness violated the First Amendment.
Making monkey noises, while offensive, is neither severe nor pervasive. Federal appeals courts have ruled that far worse expression –such as a co-worker using the N word, or a co-worker’s statement that “They should put those two black monkeys in a cage with a bunch of black apes and let the apes f____k them” — was not, by itself, severe or pervasive. (See, e.g., Bolden v. PRC (1994); Jordan v. Alternative Resources (2006)). The Supreme Court has similarly said that the “mere utterance of [a racial] epithet which engenders offensive feelings in an employee” is not severe enough to create a hostile environment.
(Admittedly, the concept of racial harassment in the workplace has expanded to the point where a few such insults from a boss to a subordinate might violate Title VII of the Civil Rights Act, due to the power relationship that exists between them. As the Supreme Court explained in Faragher v. City of Boca Raton (1998), “When a fellow employee harasses, the victim can walk away or tell the offender where to go, but it may be difficult to offer such responses to a supervisor, whose ‘power to supervise … does not disappear … when he chooses to harass through insults.'” But a protester is free both to tell a counter-protester where to go, and to walk away afterwards. The ability to engage in counter-speech weighs against a finding of harassment, as in DeAngelis v. El Paso Municipal Police Officers Association (1995), where the appeals court with jurisdiction over Mississippi cited the ability to criticize a sexist speaker as a factor against finding a hostile work environment over sexist gibes.).
In an excess of optimism, some think-tank scholars had speculated that the turbulent anti-Israel protests would force progressives to tolerate more campus speech by non-progressives to avoid looking hypocritical in defending antisemitic remarks by their own side. On April 30, Brian Riedl of the American Enterprise Institute wrote, “The one redeeming aspect of this antisemitic campus thuggery is exposing again how the campus speech codes, safe spaces, etc., were purely about power and silencing critics rather than sensitivity. Good luck enforcing those rules on the rest of the student body ever again.” But as I noted in response, “They are still being enforced as we speak. The woke have no shame — even the most innocuous speech they brand as ‘harmful’ — like a progressive California’s judge’s ruling that a child could be punished for a harmless ‘any life’ drawing [wrongly] deemed ‘racist'” by Black Lives Matter activists.
