THE LEAD: My alma mater made the news this week for all the wrong reasons:
A video of a University of Wisconsin student using racist slurs and references began circulating on multiple social media platforms Monday.
The video showed a white UW student using racial slurs and expletives directed toward the Black community. Others could be heard laughing at the rant in the background of the video.
(EDITOR’S NOTE: Some media outlets have named this person and identified her as a UW-Madison sophomore. The U has only confirmed she is a student, and various other outlets have not verified her name. I couldn’t independently verify the person’s name, so I’m not using it. Restraint is the better part of valor in cases like this.)
SEE IT NOW: Here’s an “edited for TV” version of the video:
THE FALLOUT:
- What followed was a stream of statements from various corners of the university, calling for the university to act. In addition, students marched on the chancellor’s office and demanded that the student in the video be expelled. An online petition that calls for the student’s expulsion now has more than 41,000 signatures.
- The university’s current response is that it can’t discipline the student for statements made on personal social media platforms. Chancellor Jennifer Mnookin told protesters Wednesday she understands and agrees with their disgust regarding the video but she is under “very significant legal constraints” regarding her ability to speak and act in this situation.
SIMPLE ANALYSIS:
- Mnookin is right about the First Amendment and the way in which it protects even the most odious speech. Governmental agencies cannot be curtail or punish speech, with a few notable exceptions, such as if the speech contains a true threat or falls under the fighting words doctrine of inciting imminent lawless action.
- The second scenario clearly doesn’t apply here, as she wasn’t inciting a group to do something violent. As for the first one, not to appear glib here, but unless people viewing the video could realistically believe this student could become a ghost and haunt them, while forcing them to “pick cotton” until they died, it doesn’t apply either.
- The First Amendment provides both the disease and the cure in this case, in that the best way to deal with bad speech is through more speech.
- The students who have written on various platforms, expressing their outrage and sadness, are availing themselves of their right to speech and press.
- The students who gathered to let the school know they aren’t happy with this student or the school’s response are availing themselves of their right to peaceably assemble.
- The students signing the petition that demands this kid get the boot from Badger Town are relying on the right to petition the “government” for redress of grievances.
- This is how this kind of thing is supposed to work.
DYNAMICS OF WRITING FLASHBACK: Sadly, this isn’t the first time the blog has looked at a situation like this. In 2019, here at UWO, a student posted images on Instagram to “out” several other students who had a whiteboard filled with slurs and a swastika flag in their home. At the time, we touched base with legal eagle Frank LoMonte for a walkthrough on free expression and what was likely to happen to the students who “expressed” themselves in this fashion.
DOCTOR OF PAPER HOT TAKE: I’m not in favor of suppressing speech at any level, even when it comes to terrible speech like this. It’s not that I like the student’s speech (I clearly don’t) but I know that if we start suppressing speech based on content or viewpoint, it’s only a matter of time before someone comes after YOUR content and viewpoint or MY content and viewpoint.
Therefore, what happened is abhorrent, but the backlash that has ensued illustrates a point many people truly don’t understand when it comes to the First Amendment: Free speech does not mean consequence-free speech.
That said, here are some things to think about regarding this situation that aren’t being talked about right now:
- The university is wrong when it says it can’t boot this kid out of school.
- Tell that to the University of Oklahoma, which basically shut a fraternity down in 2015 and bounced two students out of school when a video emerged in which the SAE frat gleefully chanted “There will never be a (N-WORD) in SAE…). President David Boren wrote a two-paragraph letter that basically said, “You’re gone. If you want to challenge this, bring it.”
- Tell that to the University of Alabama, which expelled a student in 2018 after she posted racist videos on her “finsta” account. One of the videos concluded with her noting, “I don’t care if it’s Martin Luther King Day. I’m in the South now, bitch. So everyone can f–k off. I’m from New Jersey, so I can say n—-r as much as I want.”
- You can bounce the kid if you’re willing to take that stand, just like these and other colleges and universities have done when faced with this kind of thing. The Michigan State University’s College of Law does a good breakdown of ways in which something racist posted online can lead to punishment. In short, this kind of speech can lead to an expulsion, based both on precedent and on legal wrangling. It’s whether or not you want to go for it.
- Even if Mnookin is right that there are “very significant legal constraints” on this situation, I would bet a kidney against a big bag of nothing that there is NO WAY this kid sues. A suit would shine a Bat Signal-sized light on her and this situation for the foreseeable future. Also, I don’t know about anyone else, but I sure as hell wouldn’t want to sue my way back into a place where a preponderance of people think I’m a racist idiot.
- Whether the university decides to bounce this kid or not, the outcome will be the same.
- If I had to guess here, I’m thinking the U is running clock on this situation, hoping to get to the end of the semester and then figure out its next move. I don’t like that kind of mealy mouthed approach to dealing with this, but I also understand that the U might consider it the safest way forward from a legal perspective.
- At this point, this kid has to know there is NO WAY she’s coming back to this campus in the fall, given the fallout she’s already faced. As more places confirm her name, it’s going to be everywhere and she’s not going to be able to escape the consequences of her stupidity. Think about every time a TA calls roll in a class and all the heads turn knowingly in her direction. Think about who the hell is going to want to be her roomie next year. She’s headed somewhere else.
KEY TAKEAWAY: As frustrating as it is for ANYONE who thinks, “How the hell can this university let this racist idiot stay here and let her racist stupidity slide?” (And, I count myself among those feeling frustrated), I think a key thing to remember is that the First Amendment works.
- Nobody stopped her from posting her stupidity, thus, her free speech rights remained intact.
- The free speech reaction from seemingly everyone on this side of the planet regarding her stupidity has brought the issue to the forefront in a way that is forcing people to deal with the situation.
- The continued pressure brought to bear in reaction to this student’s stupid expression is likely to create the proper outcomes:
- The kid is catching hell from every corner of the universe.
- The kid is likely to be “gone” from school.
- The school is likely to further solidify its position against people who behave like this.
- The message of, “We’re not there yet,” when it comes to issues of race is once again highlighted.
- In light of all of this, the university is going to have to pony up more time, resources and education to deal with this issue.
In the end, all of this is the result of speech and the protections afforded to it in this country.