Universities cannot justify unconstitutional “speech codes” by pointing to crimes like the recent murder of six Sikhs in Wisconsin by a white supremacist who entered their temple during a worship service and opened fire. University policies that ban “offensive” speech target expression protected by the First Amendment, which is far different than laws punishing criminals who harm others because of their race, religion, etc.
If the gunman had survived the massacre, Wisconsin prosecutors could have charged him with murder and also under the state’s ”hate crime” statute, which imposes enhanced penalties on criminals who harm others because of the victims’ race, religion, etc. Some question the value of such “hate crime” penalty enhancements, because a murder victim is just as dead by a murderer motivated to steal his money as by one who hates him because of his religion. Both crimes deserve severe punishment. But laws that add extra penalties to crimes because of what people think, feel or believe raises significant First Amendment concerns. See, for example, the Supreme Court’s discussion of these problems in the 1993 case of Wisconsin v. Mitchell.
However, there should be no debate over unconstitutional university speech codes, that punish actual expression. There is a huge difference between someone committing actual criminal felonies with bias motives and someone giving a speech on campus that others find “offensive” or “discriminatory,” which many campus “speech codes” prohibit. The Center for Academic Freedom has explained that speech codes penalize student expression, not criminal acts, by defining outlawed speech with vague, broad terms such as ”demeaning” or “intolerant” speech. That covers a lot of expression.
Also, a student can violate a campus “speech code” and not even know it, because the violation is based on the subjective reaction of the listener to one’s words, not the speaker’s actual intent. So, if someone on campus says ”you should receive Jesus Christ as your Lord and Savior” or “marriage is defined as one man and one woman,” the speaker could be guilty of “hate speech” if a listener feels offended by such comments. Therefore, “speech codes” can intimidate people into silence and suppress debate and discussion on campus because of the threat of others filing complaints of “hate speech” with university enforcers against speakers advocating ideas the listeners don’t like. The First Amendment protects even controversial speech that provokes people to anger.
We cannot allow the horror and evil of the Sikh murders weaken our nation’s protections for freedom of speech. And the crime was horrible. My family is good friends with a Sikh family. In years past, we have enjoyed meals together at each others houses. My wife and I attended the wedding of their daughter at a Sikh temple, although we did not understand the ceremony’s Punjabi words. They had me wear an orange bandana on my head because I did not wear one of the brightly-colored turbans that Sikh men wear. It is hard to imagine someone pulling out a gun and shooting my friends and their fellow Sikhs at that wedding or other worship service, simply because of their religion or exotic garb.
But the crimes perpetuated against the people at the Sikh temple do not justify campus policies prohibiting speech others find “offensive.” The First Amendment protects provocative expression. A free society should strongly resist any efforts by university officials to justify “speech codes” by pointing to what happened in Wisconsin.