Can Penn State expel students accused of hate speech? Here’s what the experts said
Outrage over two discriminatory incidents involving Penn State students spilled over to the university itself last week, when anger was directed toward the school after it released a statement saying it “does not have the power” to expel such students.
More than 29,000 people signed an online petition demanding disciplinary action against Sean Setnick, who was accused of yelling the n-word and supporting the KKK while driving past a group of peaceful protesters last Sunday. Another student, Ryann Milligan, elicited anger when a photo surfaced that appeared to show her sporting a swastika in Sharpie on her exposed shoulder. A petition to expel her has exceeded 100,000 signatures.
But, according to lawyers and experts at the local, state and national levels, the university is almost certainly correct on its inability to discipline the students.
“The university is on very strong ground by concluding they would have problems under the First Amendment in disciplining the students,” said Andrew Shubin, a State College lawyer who represented several victims of Jerry Sandusky and argued a First Amendment case in front of the Supreme Court. “If Penn State was not a state school, it would be a different analysis. But because Penn State is a state school (for the purposes of constitutional law), they are constrained by the First Amendment, and it is virtually impossible to discipline someone for political speech.”
Added Gene Policinski, chief operating officer of the Freedom Forum Institute’s First Amendment Center in Washington, D.C.: “No matter how vile or disgusting, ignorant or stupid, the remarks themselves are protected speech.”
Both of the involved students have either denied, or downplayed, the acts. On May 30, a Jeep with three men sped past protesters in Aston, Pennsylvania, with one unknown passenger shouting: “You better watch out, you n*****. The Klan is coming!” Setnick told Onward State he did not use any derogatory terms, although another video does appear to show him yelling, “The Klan!” Milligan told the Centre Daily Times in a written statement that the photo of the swastika was taken when she was 16 years old — five years ago — and claimed the symbol was the religious icon swastika, which represents good luck and peace.
The religious swastika, which predates Nazi Germany, is not angled and can motion counterclockwise, unlike the clockwise and angled Nazi swastika. The swastika on Milligan’s shoulder motions counterclockwise, but is also angled.
“This confusion has given a false impression of who I am,” she said. “I do not endorse and have never intended to express hatred or ignorance. In hindsight, I wish the symbol was never drawn on my shoulder, and I deeply regret that the photo was taken. I can understand how people can misinterpret the photo and be offended. To them, I would like to apologize.”
But, even if both students unapologetically admitted guilt, experts said it wouldn’t matter. Because Penn State is not a private university, and both cases occurred off-campus, the university is beholden to the First Amendment.
“It’s protected speech,” added Marc Scaringi, a speaker on constitutional law and the founding attorney of Harrisburg’s Scaringi Law. “It’s ugly, it’s nasty, but it’s protected.”
Differences in the cases
Experts pointed to a case like Milligan’s as open-and-shut, in terms of lacking a criminal aspect or something the university could legally discipline. The other case is potentially more nuanced, but each of the four experts interviewed by the CDT remained confident the university could not successfully discipline the student.
The nuance enters into the equation because shouting about the Klan coming to protesters — which Setnick denied he said — could be argued to be a threat, which would be open to discipline. But to fit the legal definition of a threat, it has to be immediate, direct and realistic — and the experts felt that likely wouldn’t meet the threshold based on past precedents.
“If I’m holding a knife and I say I’m going to slit your throat right now, that’s a true threat,” Policinski explained. “If I don’t have a knife and I say those words, that’s less of a true threat. In that case, the court might look at the circumstances — is there a knife nearby? — so I think the issue is very much the intent of the speaker and the perception of the other end.”
Both the setting and the context are also important when it comes to hate speech. If the speech occurs in the classroom, that could potentially qualify as a Title IX violation if the victim’s access to education was interfered with. If a group of white students stands outside a residence hall every day and shouts the n-word at African American students, that would also fit the legal definition of harassment.
If it was a singular incident, however, it would be harder to prosecute. But, in that case, the use of the n-word could potentially meet the legal definition of “fighting words,” a category of free speech not protected by the First Amendment.
“That’s something so insulting and directed to you right here and right now that a reasonable person would probably look the other way if you slapped the guy who said it,” said Adam Steinbaugh, who works for the Foundation for Individual Rights in Education (FIRE) and is a member of the First Amendment Lawyers Association.
Confused yet? There are numerous rules, laws, exceptions and precedents. “It’s a constant source of academic scrutiny and legal scrutiny,” Shubin said. But, when it comes to hate speech at colleges, experts generally agreed on two things: Incidents that occur off-campus are harder to legally discipline, and hate speech alone is exceedingly difficult to legally discipline.
Other universities’ responses
Penn State isn’t alone in experiencing racist or anti-Semitic acts from a handful of its students — or in experiencing the accompanying outrage.
The University of Wisconsin-Whitewater announced Wednesday that it was investigating a social-media post that featured a video containing several white men shouting the n-word, though it declined to brand the content as “racist.” Clemson faced several incidents, including one in which a student posted a photo of a man lying on the ground at a protest with the caption, “hang them all.” (The student told the Greenville News he was cleared of any wrongdoing.)
Temple faced a similar issue but initially took a different tack. A video on Twitter was posted June 1, with an alleged student egging on her younger brother to say the n-word. Temple quickly responded, condemning the video and adding it would be “reported for disciplinary action.”
When reached by the Centre Daily Times on Friday, and asked about the inherent problems in disciplining such students due to First Amendment issues, a Temple spokesperson paused before adding: “You know, I have to check. ... The question’s a good one. I’m not saying it’s not a valid question.”
Two hours later, the spokesperson reached out to issue an amended statement.
“The tweet was in error,” he said. “Temple respects the First Amendment rights of all, including those that express unpopular and even hateful speech that is antithetical to the university’s mission.”
Within four hours of posting a similar correction on Twitter, Temple received more than 400 responses — most decrying the decision. But experts said the university could not have legally disciplined the offending student.
A university’s code of conduct does not supersede the First Amendment, they said, and Shubin noted that Penn State even includes a note about the amendment in its code: “Further, the First Amendment of the United States’ Constitution assures the right of free expression. In a community which recognizes the rights of its members to hold divergent views and to express those views, sometimes ideas are expressed which are contrary to University values and objectives. Nevertheless, the university cannot impose disciplinary sanctions upon such expression when it is otherwise in compliance with university regulations.”
For private universities, Steinbaugh added, the dynamic is different because the First Amendment does not necessarily apply. But most private universities still include “freedom of speech” in their respective codes of conduct.
“The law is fairly clear,” he said. “If you enroll at a private institution and they make promises in a handbook, they have a contractual obligation to adhere to those promises. So if they promise free speech, they must adhere to that promise.”
Why protect hate speech?
None of those the CDT interviewed supported the hate speech that the two Penn State students were accused of making. In fact, they all condemned it by using words like “disgusting,” “offensive” and “ignorant.”
But to protect free speech, they said, hate speech must also be protected.
Penn State President Eric Barron labeled the incidents as “vile” and “appalling.” But, in an open letter to the community on Wednesday, Barron acknowledged he could not discipline any offenders for hate speech alone, while still calling free speech “the single most important right” that protects democracy.
“And, as much as we want it to stop,” Barron wrote, referring to hate speech, “we cannot exact a legal punishment without both violating the law or giving up the rights that protect our democracy.”
The correct response to hate speech isn’t to demand the repeal of the First Amendment or to ratio Temple’s Twitter account into oblivion, advocates say. Nadine Strossen, the former ACLU president, wrote a book titled, “Hate: Why we should resist it with free speech, not censorship.” In it, she argues the best way to resist hate is through counterspeech and activism.
Policinski agreed.
“The antidote is not to shut down the speaker, absent a true threat, but to speak out yourself,” he said. “So, I think if this is producing a campus debate over the two incidents, that’s kind of a positive reaction, so to speak — to say why this is incorrect, why this is vile, why this is hateful and why this is hurtful.”
This story was originally published June 8, 2020 at 7:20 AM.
