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Free speech rights here, there, (nearly) everywhere: Where do your rights follow you?

In my last essay concerning free speech rights, I wrote a basic little summary outlining the nuts and bolts of free speech jurisprudence, as well as two major points to remember when thinking about your rights. Now, I realize not everyone (read: pretty much no one) actually enjoys reading bland essays on esoteric legal principles, so let's bring this analysis down to Earth and see what recent events implicate free speech rights.

One area sticks out more than anywhere else. Traditional public forums where you are generally guaranteed the fullest exercise of your speech include places like public sideways, public streets, and public parks. However, one of biggest ones is none of these: public university and college campuses. We have seen a flurry of free speech events occurring there, especially in light of the Republican and Democratic Primaries in the last few months.

Recently, we've seen a spat of events which have been humorously referred to as "the Chalkening." Don't worry; it's not any kind of alien abduction spree or a nightmare on Elm Street. It refers to political messages being scribbled, usually in chalk, on public sidewalks on the campuses of public (and private, although we'll ignore them for our purposes here) colleges and universities. In particular, the focus has been on pro-Donald Trump messages, such as the standard "Trump 2016" or the infamous "Build the Wall." The first and most prevalent reported instances of this chalkening occurred at Emory University back in March of 2016.

Normally, this wouldn't be noteworthy in the slightest. Back when I was attending undergraduate at DeSales University, for example, during the 2008 Obama-McCain showdown, I saw many expressions of political opinions - and, believe me, some of these were far more incendiary than these innocuous endorsements. The issue here is that students who dislike, protest, or otherwise disagree with these chalk messages have called upon their school administration to censor the messages, or to likewise punish the "culprits" who had inscribed them.

Let's get one thing out of the way. I won't go through the tedium of analyzing each chalk message to determine whether there were issues of vandalism and whatnot. For today's purposes, let's presume a general condition that the chalk messages were in public, in an area that is generally permitted for speech expressions. Naturally, it would change the analysis if you were trying to chalk up the floor of your classroom, especially in the middle of a lesson. But this wouldn't help advance our constitutional free speech tort analysis. It suffices to say that if one vandalizes property, that's an entirely separate - and criminal - issue.

So, it seems as though these particular chalk messages are being singled out for possible censorship or punishment. Can the schools do this? Can a public university censor or punish these political expressions upon complaints from protesting students? The long and short of it is this: absolutely not. In fact, the public universities should shiver in their boots at the mere prospect of such actions. It risks huge constitutional liability, no matter which rationale they try to advance for such adverse action.

Let's get down to the details.

Endorsing a political candidate is clearly a political opinion. That's the easy part of this analysis. If and when we see signs, billboards, or chalk messages for "Trump 2016," "I'm with Her: Clinton 2016," or "Feel the Bern: 2016," we know that we're dealing with people voicing their political opinions. However, the aggrieved students at Emory felt differently about these pro-Trump political endorsements. Perhaps because of Trump's controversial status, they indicated that they felt intimidated, unsafe, and threatened by these messages, which they claimed were designed to be divisive, encourage hate, or foster discrimination.

This is an argument I see a lot in favor of censorship. And I understand how it, on an instinctual level, feels right: "Someone is trying to upset me. That's not very nice." However, when dealing with constitutional protections, mere intent and mere feelings aren't enough.

The frank, bottom line is that these messages are nowhere near threats in any legally cognizable way, even if many people feel uncomfortable or even threatened by them. By way of contrast, let's take a look at a case study of Watts v. United States, 394 U.S. 705 (1969), where the United States Supreme Court discussed "true threats."

In Watts, the issue revolved around a public rally in 1966. There, the Defendant was asked what he would do if drafted, to which he responded, "I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L. B. J. [...] They are not going to make me kill my black brothers." Defendant was arrested, having violated a law which forbid making a knowing and willing threat against the President. He was convicted, and Defendant appealed. The Supreme Court, perhaps surprisingly, held that the comments in question were not true threats.

Why was this the result? The Court laid it out clearly. It noted that, in America, there is "profound national commitment that debate [...] should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks[.]"

In short, the Court acknowledged the reality that, oftentimes, on heated political topics, people get a little... excited. And that's okay, the Court held. We don't want the government coming down and micromanaging every exaggeration, joke, or over-the-top declaration. The Court held that true threats have to be taken in context.

The context of these pro-Trump messages is obvious; moreover, there's nothing explicitly threatening about them, especially when you consider how much more threatening the rhetoric in Watts was. The argument that these chalk messages can be censored or punished as true threats falls flat.

Then, add in the fact that the Courts give great deference to political speech, and those who wish to censor or punish it would likely face strict scrutiny - the highest burden of proof, which is incredibly difficult to meet. There's also a possibility that such an attempt at censorship or punishment would be considered viewpoint discrimination, as I discussed in my last constitutional tort blog post. In that case, such a measure would most certainly be deemed unconstitutional.

Lastly, there isn't even a constitutional exception for banning or punishing speech that's merely intended to incite hatred, discrimination, or division. Those are completely legitimate reasons to protest, or to write in rebuttal, or to engage in persuasive argumentation with your opponents, but they alone have no legal weight when it comes to state-sanctioned punishment for or censorship of speech. The intent of a message can play into whether something is a threat, for sure, as in the hallmark case of Virginia v. Black, 538 U.S. 343 (2003). However, intent without a threatening message is probably not going to be held as a threat by the Court; at that point, we're getting into the territory of possible thought crimes.

Know your rights, especially on public university campuses. It's true that schools, generally, can restrict speech a bit to ensure the educational mission, but, when it comes to public spaces designed for the expression of free speech, censorship and punishment for speech just don't fly.

If you feel as though your rights have been violated by a public entity, don't hesitate to contact Cohen, Feeley, Altemose & Rambo for a consultation.

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