As gray clouds rolled in above the University of Tennessee’s campus and heavy raindrops fell, students gathered on Pedestrian Walkway on Friday, March 1.
Their colorful rain jackets stood out against the somber light, the ink on their signs stained with water, but it didn’t deter the students and faculty as they came together to be heard. They wanted to make sure that administration discerned their concerns about a racist blackface picture that circulated Snapchat and Twitter the day before.
Those students, faculty and staff were using two of their rights that were guaranteed to them in 1791: the First Amendment’s freedom of speech and assembly.
Under the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
And for centuries, freedom of speech has allowed for a marketplace of ideas to grow. The marketplace refers to British philosopher, economist and influential thinker of the 19th century John Stuart Mill’s concept of a free flow of information where ideas compete with each other and allows anyone to have access.
However, in the 21st century freedom of speech needs clarity, especially in defining what free speech is and what is protected, chiefly for college students.
To clarify, the First Amendment applies to the government and it protects you as a citizen by stopping the government from censoring or suppressing your free speech.
Mustafa Ali-Smith, fourth year in public administration and executive president of UT’s chapter of the National Association for the Advancement of Colored People, feels that the definition of free speech is a blurry line.
“I think free speech can be a cloudy area. There’s always a lot of controversy around free speech and how it’s defined,” Ali-Smith said. “But the way I see it, free speech is the ability to express your opinions or thoughts, but in a respectful manner. I think there’s a lot of controversy in terms of how free speech is expressed and whether or not it walks the line of hate speech.”
Grey Mangan, UT sophomore in cinema studies and co-founder of United for Students, focused on the importance of free speech for university students.
“Free speech is an important part of our lives as not only students, but as citizens,” Mangan said. “I believe that college is the place where you can learn to be a more conscious citizen and learn to exercise that right.”
United for Students started as United for Student Programming, which aimed to protest administrators decision to eliminate student funding through the Student Programming Allocation Committee, but soon transformed to encompass a larger part of the UT community.
“However, just before we were planned to protest, the news broke on the blackface incident, and we felt compelled to rebrand as United for Students and pull more people to the table to create a broader response to these injustices happening on our campus,” Mangan said.
The incident involved a group of students taking a Snapchat while wearing charcoal masks and making a racist remark. The photo was then circulated on Twitter, which lead to the protest where many student organizations gathered because they felt personally affected.
“Protests have always been on the forefront of free speech even from the time when free speech was elevating at UC-Berkeley,” Ali-Smith said. “Basically that was a way to express how students collectively were feeling and quite honestly we were all really upset that that was truly being compared, that the act of blackface was being compared to just simply free speech.”
Students looking to exercise that right should understand the difference between free speech and hate speech. Many individuals do not know the distinction.
Michael Martinez, assistant professor of journalism and electronic media who researches media law, the courts and the history of journalistic practices, explained the difference between free speech and hate speech.
“Free speech is protected speech, meaning we may not like what the message is and we may find it abhorrent, for example the blackface incident on (Snapchat) or the swastikas on The Rock. Absolutely abhorrent, you know it’s sickening to see it, but it’s protected speech,” Martinez said. “Hate speech by definition, by legal definition … is not protected by the First Amendment. Hate speech is speech that will incite imminent lawless action.”
Imminent lawless action is any speech that calls for instant action--a call to arms--that puts others at risk or endanger their lives.
Today, freedom of speech protections include written, video, online and symbolic speech, but limitations have been set by court cases.
“These court decisions have not been decided on college campuses, but in high school and sometimes it’s applied to college,” Martinez said.
One such case that Martinez reflected on was Tinker v. Des Moines Independent Community School District, where students were expelled from school for wearing black armbands to protest the U.S.’s involvement in the Vietnam War.
In the Supreme Court’s decision, the Court ruled that the armbands represented symbolic speech and didn’t interfere with learning, so the students were protected under the First Amendment.
So, as long as the protests do not disrupt the educational learning process in school, speech is protected under the First Amendment.
“When it starts disrupting the educational function, when it starts disrupting the curriculum or the ability to teach students, then you can regulate it,” Martinez said. “You can’t prohibit, but you can regulate.”
When administrators regulate free speech, they can place time, place and manner restrictions on it as long as the regulations are narrowly tailored and allow alternative channels for communication of information.
According to the Tennessee Campus Free Speech Protection Act-- passed in 2016 to ensure free speech on campus-- the narrowly tailored aspect of time, place and manner restrictions can be aimed to satisfy a significant institutional interest.
For example, The Rock at UT is considered a designated public forum--public property that the government opens for public expression that is not a traditional public forum like public parks or sidewalks. UT does not have to keep it open according to Cornell Law School’s Legal Information Institute.
So, when swastikas were painted on The Rock in the fall of 2018 after an attack on a synagogue in Pittsburgh, Pennsylvania, the UT Faculty Senate proposed that time, place and manner restrictions be placed on the area.
This would make it easier for the university to deter incitement of hate speech in the future.
Amber Roessner, associate professor in the School of Journalism and Electronic Media and chair of the Faculty Senate’s diversity and inclusion committee, approved of regulating the painting of The Rock.
“One of the things we talked to with free speech experts on campus is the institution of time, place and manner restrictions,” Roessner said. “What we had in mind was this idea of students perhaps signing up to paint The Rock, and so that way if someone during their designated time came and painted over their imagery on the Rock with abhorrent hate speech, they could be prosecuted under the time, place and manner restrictions.”
Even with time, place and manner restrictions, Martinez said the best way to fight hate speech is with more speech, referring to a 1927 case where Charlotte Whitney, a founding member of the Communist Labor Party of California, was prosecuted under a California statute for helping to organize a group that wanted to effect political and economic change through violence.
In the Supreme Court case, Justice Louis Brandeis argued that restrictions on the government under the First Amendment do not cover speech that incites a clear and present danger to others, like yelling fire in a movie theatre or calling others to riot against a group. Justice Brandeis said that broad statements that advocate change at an indefinite date are still protected and that the only way to stop hate speech, is more speech.
“Justice Brandeis ... said one of his famous quotes was ‘The antidote to abhorrent speech, is more speech, not enforced silence,’” Martinez said. “So, to counter the speech, speak out against.”
Mangan agreed as he shared his belief that students need to use their freedom of speech to combat hate speech.
“The events on campus show us what happens when people misinterpret freedom of speech as empowerment to hate speech. I think we should make no mistake that the blackface incident and that swastikas on the rock are heinous and hateful acts,” Magnan said. “It threatens the safety of the students, faculty and staff. We have a duty to utilize free speech, especially those of us with the privilege to not be targeted by these groups, to demand institutional change.”
Which is exactly what Mangan and others did on that rainy Friday as they marched to the Student Union, their shoes splashing through puddles as they held aloft their signs supporting students.