Greg Lukianoff, president of the Foundation for Individual Rights in Education, once told me that the University of Wisconsin-Madison has experienced more controversial free speech/First Amendment disputes over the last 25 years than virtually any other higher education institution. On Saturday evening, October 29, yet another such controversy erupted.
The 10th ranked Badgers were playing the 8th ranked Nebraska Cornhuskers in a sold out (80,000) nationally televised home football game at Camp Randall. According to reports, two students wore costumes that depicted Donald Trump hanging Hillary Clinton and President Obama, respectively, in effigy. Many fans who directly witnessed the scene deemed the nooses racist, and scores more chimed in as social media depictions swept through the stadium and on to much wider audiences. By Sunday morning, the campus had yet another racial crisis on its hands, following in the wake of previous incidents that began erupting last spring.
At the game, security forces asked the costume wearers to take off the nooses, and the latter complied. They were then allowed to keep the rest of their costumes on and to stay for the game. (Later at least one of them draped the neck, but without wearing the Obama mask.) Some considered this compromise to be statesmanlike, allowing all concerned to sidestep a First Amendment controversy while paying heed to both sides of the argument. But others were not mollified, charging that the bearers of nooses should have been expelled from the game. Meanwhile, others claimed that expelling the wearers would have made the University look hostile to vibrant and controversial discourse.
Once again, the administration found itself between a rock and a hard place. On the one hand, working with student allies, this summer the University enacted policies designed to deal with racism on campus. Policies included a pilot program for incoming students promoting racial awareness and sensitivity and a regime of bias reporting. On the other hand, the Board of Regents formally endorsed its own version of the University of Chicago Free Expression Principles last December, and recently the Madison administration modified its bias-reporting program in a manner that received a “Green Light” from FIRE, which even said the program could serve as a model for other schools. In addition, the University has included a “Primer” on how to honor free speech principles and robust civic discourse that I authored as part of its Orientation program for new students. The University is striving to appropriately balance racial awareness and decency with free speech.
After the incident at the football game, Chancellor Rebecca Blank issued a statement that denounced the racist meaning of the costumes while also affirming the University’s strong commitment to free speech. Her initial remarks closely tracked the University’s dual commitment to racial sensitivity and freedom of speech as reflected in its official policies promulgated over the course of the last year. In a statement issued the Sunday after the game, Blank concluded that the wearing of the nooses violated university policy, but that the “remainder of the costume fell within” stadium policy. “This was consistent with our handling of other instances of individuals wearing clothing containing offensive language,” she remarked. “As offensive as this costume was, I believe our university must resist the desire to outlaw forms of speech and political dissent with which we disagree. We strive to build a campus community in which ideas and expression are exchanged freely, but also constructively, respectfully and in a manner that advances educational opportunities for our students.”
A few days later, the Chancellor and Athletic Director Barry Alvarez coauthored a statement informing the public that the University was reviewing its policy on stadium speech. Naturally, it focused on the nooses. “A noose displayed in this fashion has no place on campus. Together, the athletics department and the university’s Office of Legal Affairs are initiating a review of stadium policies with the goal of ensuring that symbols of this type are not displayed in our stadium again.”
“We have work to do at UW-Madison on campus climate issues, and an incident like this only deepens the divides across campus. Both the university administration and athletics department are committed to doing this hard work, while being acutely aware that we are a long way from where we want to be.”
If this statement is taken at face value, it is overly broad because engaging in symbolic speech that includes hanging a political leader in effigy would clearly be entitled to First Amendment protection in a public forum on campus, such as in front of the student union or a similar locale. More precision is needed in order to pass First Amendment and free speech muster. A long line of symbolic free speech cases makes this conclusion clear.
In thinking about how to deal with this issue, some contextual points are important to keep in mind. First, Madison is famous for being a mecca for Halloween partiers who come to the downtown area from all over the city and far away, bearing often-outrageous costumes to celebrate the occasion. I often marveled over the seemingly infinite imagination my former students displayed when it came to Halloween costumes, which they often wore to class. (If they had applied such imagination to their classes, all would have all earned Phi Beta Kappa.) And the University allows costumes into Camp Randall.
Second, hanging political leaders and “big shots” in effigy has long been part of political protest. Ask King George III and a host of presidents over the years. But hanging African-Americas for real is also a part of the dishonorable part of our nation’s history, as is well known. So which meaning should we attach to the nooses that adorned the costumes? Barak Obama is both president and African-American. Which characteristic is predominant in this situation? What was the intent of the costume wearers? Does the fact that Clinton was also hung in effigy cast light on the proper interpretation of the nooses? Does the fact that a controversial election was at hand make a difference? And can’t symbols bear more than one meaning at a time? Finally, just what should be allowed, and what not?
The UW Athletic Department’s Fan Code of Conduct specifically prohibits “improper conduct (including profane or abusive language and throwing objects).” In addition, a UW website says “Fans who engage in unruly or illegal conduct are subject to ejection from athletic events and possible revocation of their season tickets.” And at the beginning of each game, the public announcer informs the crowd that the shouting racist epithets and the like are prohibited and will result in expulsion for the game.
From a First Amendment perspective, sporting events constitute special university functions that allow for restrictions of speech that would not be permissible in public forums or other venues where free speech is paramount. If speech improperly affects or disrupts the conduction of the event, it may be restricted or prohibited. For example, racist chants from the stands would properly lead to delay of the game and appropriate reaction from security forces. Pragmatic factors will be considered—could we really eject thousands of fans without causing a riot?—but in principle free speech has distinctive limits in such venues.
But were the costume wearers at Madison engaged in “unruly or illegal conduct?” Or were those who might have threated retaliation if the nooses were not removed the ones who were potentially unruly or disruptive? First Amendment law does not allow “heckler’s vetoes” to be a basis for silencing speech that is otherwise protected. The Supreme Court fashioned this doctrine in the 1960s in order to protect the rights of protesters in the Civil Rights Movement in the South.
First Amendment law and theory makes an important distinction between generally offensive expression and speech that is either directly threatening or so highly provocative and specifically targeted at individuals or discrete groups that it constitutes “fighting words.” Offensiveness alone may not provide a basis for restriction because all sorts of controversial viewpoints and ideas are offensive to some, and the term is inherently vague and overbroad. In addition, being offended is less personally harmful than being threatened. Given the evidence at hand, the costumes at the game in Madison were clearly offensive to many, and even received as threatening to some. But they were not targeted at anyone in particular; and, as mentioned, their meaning was open to reasonable disagreement.
FIRE’s legislative and policy director, Joe Cohn, stressed these points about threats and offensiveness in an Inside Higher Education article about the case. Cohn compared the situation at Madison to a case that took place a while ago at East Tennessee State, in which a white student wore a racist costume precisely in order to intimidate black students. After disrupting a Black Lives Matter rally, he thrust a banana on a string in the face of the students, and was arrested for engaging in civil rights intimidation under Tennessee law. (He admitted that he wanted to provoke the students.) This is a clearer case that the Madison case because targeted intimidation and severe provocation were present.
Cohn also emphasized that the University did not have a policy that dealt with this kind of speech, which brings us back to how the University will respond. In fashioning a policy for such scenarios, it needs to keep the distinctions discussed above in mind. And so long as the University allows different types of costumes at games—a time-honored tradition, which include dressing as Badgers or the opposition—it needs to craft a policy that does not infringe on speech unless it clearly disrupts the event at hand according to the standards of a reasonable person. A sporting event is not a public forum, so the University has more discretion in this domain than in others. But free speech principles are still applicable, tailored to the context.