Eminent Domain

The Volokh Conspiracy has been blowing up today with posts about a controversy at San Francisco State University. The whole mess stems from one of my favorite parts of campus life, the student protest. Here's what went down...

The College Republicans "offense" took place on October 17, 2006, when they held an anti-terrorism protest in SFSU'’s Malcolm X Plaza. During the protest, several members of the group stepped on butcher paper they had painted to resemble the flags of Hamas and Hezbollah. Unbeknownst to the protestors, the flags they had copied contain the word "Allah" written in Arabic script.

The CRs were charged with violations of university policy for "attempts to incite violence and create a hostile environment" and "actions of incivility" in violation of the Standards for Student Conduct. The investigation portion of this drumhead has ended and now the complaint is being sent to the Student Organization Hearing Panel for review" and "possible disciplinary proceedings."

Prof. Volokh, a widely respected First Amendment scholar, has this analysis in the comments section...

Indeed, no discipline has been implemented yet. But what would we think if SFSU had sent into "possible disciplinary proceedings" a complaint that someone was expressing anti-American views (e.g., stepping on an American flag) or anti-Administration views (e.g., stepping on a picture of President Bush)? I take it that we'd recognize that even having a "Hearing Panel" look into the results of an "investigation" that might lead to "possible disciplinary proceedings" would be improper -- the university should have just dropped the complaint, on First Amendment and academic freedom grounds. Likewise here. How free is speech about religion going to be at SFSU if students know that when they say religiously offensive things that are alleged to create a "hostile environment" or to be "incivil," they can be haled in front of a "Hearing Panel" with the prospect of "possible disciplinary proceedings"?

That situation (threating to punish anti-American or anti-Bush views) would probably never happen on the vast majority of college campuses. Those views can be expressed with impunity, as they should be. However, the young leftists of America and university administrators need to understand that the door swings both ways at public universities. The right can say things that piss you off and you can't punish them. You have recourse, though. Speak out against them. Try to make a better argument or show why theirs is wrong. That's what a confident, intelligent individual would do. A confident, intelligent individual certainly wouldn't run off to the administration and whine like a little baby.

Here is more from Prof. Volokh...

Note also that the university is not simply trying to prevent violence here (which it in any event should do by preventing and punishing the violent responses to offensive student speech, not by punishing the speech itself, at least unless it fits within the narrow category of individually addressed insulting "fighting words," which doesn't apply here). The university is expressly investigating (with the threat of formal sanctions behind the investigation) the possibility that the students' speech is ideologically offensive -— creates a "hostile environment" and is "incivil[]." A clear First Amendment violation, it seems to me.

Unsurprisingly, I agree with Prof. Volokh. As FIRE points out (quoted in Volokh's post), burning the American flag is protected speech under the First Amendment. And I agree that it is. I also think that these actions against representations of Hamas and Hezbollah flags fall under the same protection. Prof. Volokh has a follow up post explaining the idea of "expressive conduct" under the First Amendment. That's the classification that all this monkey business with the flags would get.

This part of the e-mail from the Office of Student Programs and Leadership Development really pissed me off...

Please keep in mind Carl that you as a student organization have the right to have a representative at any stage of possible disciplinary proceedings. However, attorneys are not permitted as representatives in this process.

Okay, you are subject to a quasi-judicial process with the possibility of significant punishment, but you can't have legal counsel. Sounds fair to me.

Prof. Volokh finishes off his triad of posts about this topic by comparing the SFSU rules to anti-blasphemy laws...

As to the disciplinary action contemplated by SFSU, and FIRE's reaction to it:

The university's response [to FIRE]? Spokesperson Ellen Griffin told me, "The university stands behind this process."

And: "I don't believe the complaint is about the desecration of the flag. I believe that the complaint is the desecration of Allah." ...

Sounds to me like SFSU is acknowledging that under SFSU rules, desecrating Allah -— or, to be precise, desecrating religious symbols -— is indeed prohibited. Everything old (here, blasphemy bans) is new again.

Personally, I think that the actions of the CRs were childish and kind of dumb. But in fairness, I think that the vast majority of college protests are childish and kind of dumb. You can watch video of it here and here. Wow, campus liberals calling campus conservatives "racists." Campus conservatives calling campus liberals "communists." There is nothing new under the sun...

Dumb or not, whether I condone it or not, the protest and the flag stompin' were protected speech under the First Amendment. SFSU has already screwed up by continuing this kangaroo court process. If the CRs get punished, the screw up will be complete. This will be nothing more than left wing authoritarianism on a college campus.