I’ve studied and taught mass media law for nearly 37 years, so I thought I knew a good deal about the First Amendment.
But now I’ve discovered that we have not one but two First Amendments. Apparently one First Amendment says conservatives not only have a right to speak and demonstrate but that they should be treated with respect and protected from criticism by liberals. The other First Amendment says liberals may respond to conservatives, but, if they step over some ill-defined boundary of civility, they risk punishment.
This discovery arises from the way the University of Nebraska-Lincoln has handled a controversy over a graduate student lecturer’s responded to another student who was distributing literature for Turning Point USA.
Kaitlyn Mullen, a UNL sophomore, had set up a table on the north side of the student union to distribute literature and attract students to join Turning Point USA, an organization that promotes limited government and free markets. It also runs a professor watch list on which it posts the names and “offenses” of university and college professors it considers too liberal.
It was this watch list, which smacks of McCarthy-era blacklisting, to which Courtney Lawton objected.
Lawton, a graduate student lecturer in the English department, alerted others to the presence of the Turning Point table. Soon Mullen faced several people who were chanting and carrying signs that protested Turning Point as a fascist organization. At some point, Lawton displayed a raised middle finger to Mullen.
Lawton was quickly suspended from her teaching duties, but now she has been permanently removed from teaching, even though she has been praised for her teaching and research.
Was Lawton’s conduct rude? Yes. Was Lawton’s conduct unprofessional? Yes. Was Lawton’s conduct protected by the First Amendment? Emphatically yes.
In 1971, the U.S. Supreme Court struck down the disorderly conduct conviction of a man who had worn a jacket bearing the words “F*** the draft” (without the asterisks) inside the Los Angeles County Courthouse. In holding that the First Amendment protected the man’s right to wear the jacket, the court said words convey not only ideas and information but also emotion. Sometimes the emotional force of a statement is the most important part, and it is as deserving of constitutional protection as the ideas and information.
Recently, a woman lost her job after she showed the middle finger to President Trump’s motorcade, but she worked for a private company. The University of Nebraska is a state agency and, therefore, required to comply with the First Amendment.
Kaitlyn Mullen said she had felt intimidated by the protests from Lawton and others. I have no doubt that she did. But that alone is not enough to punish Lawton for exercising her First Amendment rights.
Albert Snyder, the father of a Marine killed in Iraq, was deeply offended by the anti-homosexual protests of the Westboro Baptist Church near his son’s funeral. He sued and won a $5 million jury award, but the U.S. Supreme Court reversed the lower court’s judgment. Chief Justice John Roberts said the emotional distress Snyder felt did not justify punishing speech, no matter how offensive, that addressed a matter of public concern. The court used similar reasoning in 1991 when it overturned the conviction of a young man who had burned a cross on the law of an African-American neighbor.
The context for this encounter between Mullen and Lawton is important. It happened in a public area where many people gather for expressive and social purposes of all kinds. If Lawton had addressed a student in her classroom in the same way, her dismissal would be justified. But, on the plaza outside the student union, the First Amendment rights of Mullen and Lawton should be the same.
In a column published in the Journal Star Tuesday, Chancellor Ronnie Green explained the university’s decision regarding Lawton and said, “We will continue to examine ourselves, seek feedback and ask tough questions.” So here are some questions I have:
* If a creationist speaker comes to Lincoln and urges that creationism be taught in biology classes along with evolution, am I free to denounce that speaker as someone who is undermining education and critical thinking? Or will I be disciplined if I do so?
* If fascists (I refuse to use the euphemism “alt-right”) march on the UNL campus chanting “Blood and Soil” and “Jews will not replace us,” am I free to shout my disgust at their hateful ideology, even if I use decidedly unprofessorial language? Or will I be fired if I do so?
I don’t mind having conservatives speak on campus or in my classes. I don’t mind if conservatives protest liberals or express their disagreement with liberal ideas. But the rules must be the same for all.
We can have only one First Amendment, not two.