Carter Montgomery’s recent piece, “Standing Up Against Racism,” highlights the tension between freedom of expression and social equality. Through examining the case of Harry Vincent, a Texas Christian University student who made headlines after receiving disciplinary action for offensive posts on social media, Montgomery argues TCU was within its rights to enforce its standards of conduct. He goes on to note that because TCU is a private organization, it is not bound by the Constitution’s First Amendment. But even if it were, Montgomery contends, the Supreme Court’s decision in Chaplinsky v. New Hampshire (1942), which decided “fighting words” are not constitutionally protected, would allow the University to act in a similar fashion, regardless.
Montgomery then relates the TCU case to Boston College by writing, “[i]t is our responsibility to create a community on campus of acceptance, not of ignorance” by creating and enforcing conduct standards, and “[c]ollege students need to realize the repercussions of what they say on the Internet and need to learn what speech is and is not protected by our government. But most importantly, we need to shed our hate and prejudice and learn tolerance instead.”
Finally, Montgomery writes, “I personally have seen a shocking number of other young people coming to Vincent’s defense” and while “Vincent made a mistake…no one should make the same one by supporting his hateful outburst.”
I disagree with Montgomery’s argument and his analysis, but not his call to action.
Let me be clear: I am not coming to Harry Vincent’s defense—his posts reflect a worldview with which I strongly disagree—but standing up to racism, as Montgomery calls on us to do, should not be done at the expense of freedom of expression.
First, while it is true the First Amendment’s reach does not extend to TCU, it’s worth analyzing the Chaplinsky case cited by Montgomery. The Court has not overruled the decision directly, but subsequent decisions have marginalized the “fighting words” doctrine so much so that as of this past June death threats made on social media to specific individuals (like an ex-wife) are constitutionally protected in most circumstances (Elonis v. United States).
Aside from the decision’s now-defunct application, it’s also worth reviewing the facts of the Chaplinsky case: In 1941 police officers arrested Walter Chaplinsky, a Jehovah’s Witness, for handing out pamphlets pertaining to his faith and for describing organized religion as a “racket” and the police as fascists. New Hampshire charged Chaplinsky with violating its ban on offensive speech and the Court upheld his conviction by arguing that the First Amendment does not protect “fighting words,” which include those that would inflict injury or incite an immediate breach of the peace when uttered in public.
That’s right: Walter Chaplinsky’s fighting words were “racket,” “fascist,” and according to the police, “God-damned racketeer.” (It’s no wonder the Supreme Court later backed away from its decision.)
But there’s an important takeaway in the Chaplinsky case. The government limited Walter Chaplinsky’s freedom of expression because, as a Jehovah’s Witness, his speech offended the majority—that is, Christians—and upset the public peace. In other words, Chaplinsky, a minority in his community, was convicted because his opinions, when expressed, ran against the widely accepted views of his neighbors.
To put this in a contemporary context, the government could have used the fighting words doctrine against protesters in Ferguson, MO and Baltimore, MD because their speech not only did breach the peace, but was intended to breach the peace.
And this reveals the problem with restrictions on freedom of expression: some group—usually the majority acting through the government—decides what’s acceptable and what’s punishable. In doing so, minority opinions are silenced and their believers’ rights infringed—social justice be damned.
Harry Vincent’s tweets are offensive, and they are racist. But the line between his fighting words and those of, say, Walter Chaplinsky’s is not always so easy to discern. And it’s for this reason that I disagree with Montgomery’s call to stand up to racism by creating restrictions on expression.
Values change. Opinions shift. Today’s majority is tomorrow’s minority. (Marriage equality, anyone?)
That said, I strongly agree with Montgomery’s demand that we “shed our hate and prejudice and learn tolerance instead.” Not everything ought to be tolerated, but having an open mind is a good thing and can, I would concur, help us in standing up to racism.
Know what goes hand in hand with an open mind? Freedom of expression.
In his dissenting opinion for Dennis v. United States (1951), Justice Douglas wrote, “[t]he airing of ideas releases pressures which otherwise might become destructive. When ideas compete in the market for acceptance, full and free discussion exposes the false and they gain few adherents. Full and free discussion even of ideas we hate encourages the testing of our own prejudices and preconceptions.”
After Vincent aired his views publicly, a young woman going by the name of Kelsey responded on Tumblr. Hundreds more then joined in. Mr. Vincent’s ignorant views were juxtaposed with rational ones. Montgomery praises Kelsey for standing up to racism, but let’s also acknowledge that Kelsey and her followers used freedom of expression to do so.
-Chris Marchese, BC ’15
