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Church State Issues

ASU students have a constitutional right to be offensive

Jan 25, 2014

Arizona Republic

By Robert Leger The Republic | Fri Jan 24, 2014 12:41 PM

Americans love the First Amendment, at least in principle.

I get to say whatever I want. Yeah. Oh, but you do, too? That could be a problem.

We’re seeing that dichotomy again in the wake of the insensitive party hosted by an Arizona State University fraternity. White members of Tau Kappa Epsilon celebrated Martin Luther King Jr. Day by wearing what they considered “black” clothing and posing with hollowed-out watermelon cups. Then, displaying even worse judgment, they posted photos on social media for all the world to see.

The offensive party drew quick and vociferous criticism, as it should have. The Rev. Jarrett Maupin threatened a boycott of ASU athletics if the university didn’t ban the frat and expel students who attended the party. The university took care of the first demand, revoking recognition of the frat. That’s easy to defend. Simply by hosting a party with alcohol, the TKE broke the conditions of earlier disciplinary action.

But expelling the students for their off-campus party attire? That goes too far because the students, like all Americans, have a First Amendment right to be offensive.

The idea the Constitution protects the students upset Maupin, who told The Arizona Republic’s Anne Ryman, “Are we now legitimizing or giving permission to or endorsing racist behavior?”

It’s not an unusual reaction.

The First Amendment Center since 1997 has surveyed American attitudes about the five freedoms guaranteed by the amendment. Every year, sizable percentages say it goes too far. In last year’s survey, half or more of African-Americans and Hispanics took that position.

Previous surveys broke it down further. From 1997 through 2008, people were asked if people should be allowed to say things in public that might be offensive to racial groups. A majority always said no, ranging from 53 percent to 75 percent. Smaller but still significant percentages said no one should be able to offend religious groups.

Americans are kind, generous people. We want everyone to be nice.

But freedom, to be truly free, doesn’t work that way. We don’t need a First Amendment to protect polite speech. Or safe speech. Or speech a majority of us agree with.

We need a First Amendment to protect freedom for those on the fringes and for those who would challenge conventional wisdom. The First Amendment allowed King to challenge segregation, a policy that in its day enjoyed majority support. The guarantee of free speech allowed the rightness of his cause to gain a foothold and prevail.

That’s really what the First Amendment is about. All ideas, sublime or offensive, have an opportunity to jostle in the marketplace without government interference. If they’re good ideas, they rise to the top. They become the majority opinion. If they’re bad ideas, they sink – often under the fire of withering criticism.

Sixty years ago, the TKE party wouldn’t have drawn a comment. Today, it is rightly seen as offensive. That’s a First Amendment victory.

Kicking students out of ASU for acting like doofusses would be a setback for freedom. It would establish that the government — ASU — can determine which ideas and opinions are suitable for students and which are not.

That is anathema to the ideals of freedom. These students, as individuals, have a right to be offensive. The government cannot keep them from mocking King, as angry as that makes most of us. This is the glory of the First Amendment — and why a kind, polite people will always be uncomfortable with this freedom.

Contact opinions editor Robert Leger at