Inside Higher Ed reports that “It’s OK to Be White” posters have appeared on more campuses:
The posters, which also appeared a year ago at this time, are put up without permission [from college officials]. Posters have been seen this year at Christopher Newport University, East Tennessee State University, Oklahoma City University’s law school, Susquehanna University and Western Connecticut State University.
The sentiment that “it’s OK to be white” is obviously protected by the First Amendment.
But at Western Connecticut State University, President John Clark has threatened the unknown persons who posted flyers saying “It’s OK to Be White.” He says if they are students or faculty, they will face the “severest disciplinary actions, including dismissal as well as possible civil and criminal actions.”
The university says its officials immediately reported the flyers to local and state police and the FBI office in New Haven, all of whom are investigating where the posters came from and who posted them.
Law professor Eugene Volokh, whose writings have been cited by the Supreme Court, notes “that the flyers consisted solely of the messages ‘It’s OK to be white’ and ‘Islam is right about women,'” and that “such messages are of course fully protected by the First Amendment.”
Volokh is right. Even if these messages are viewed as racially or religious inflammatory, they are still protected by the First Amendment.
The federal appeals court with jurisdiction over Connecticut ruled in 1992 that a professor’s derogatory beliefs about black people were protected by the First Amendment. (See Levin v. Harleston, 966 F.2d 85 (2d Cir. 1992)). In 1990, it ruled that a professor had a First Amendment right to teach that Zionism is racism, even though that caused a “furor” on his campus. (See Dube v. State University of New York, 900 F.2d 587 (2d Cir. 1990)).
It is unclear what possible basis the FBI would have for investigating here. Federal law doesn’t forbid flyers that people find racially or religiously offensive, and laws against things such as littering are state laws, not federal laws enforced by the FBI.
In any event, Federal officials such as FBI agents must comply with First Amendment limits on their investigations. In 2000, a federal appeals court ruled that federal officials had violated the First Amendment by investigating citizens for 8 months over flyers and speech about a housing project for disabled people that allegedly exhibited prejudice. (See White v. Lee, 227 F.3d 1214 (9th Cir. 2000)).
The court ruled that even if their speech was prejudiced, it was still protected by the First Amendment because it did not incite imminent lawlessness. Thus, it violated the First Amendment to subject them to a prolonged, speech-chilling investigation, even if federal officials thought that their speech violated a federal civil-rights law. The FBI should heed such rulings by not investigating flyers that say “It’s OK to Be White.”
These flyers may well have been posted in unauthorized places, the way flyers often are on college campuses. Violating such rules seldom carries any serious penalty, much less the “severest disciplinary action” that the university president threatens for the “It’s OK to Be White” flyers.
The university cannot discriminate against these flyers based on their viewpoint by expelling or dismissing people for posting them, when it obviously would never expel or dismiss someone for posting flyers with a different viewpoint the university likes better, such as “It’s OK to Be Black.”
Even valid school rules, such as against posting flyers in the wrong place, or against littering or harassment, cannot be enforced against someone based on their viewpoint. A federal appeals court ruled that a conservative student could not be punished for violating a college’s broad harassment rule by videotaping someone in their office, when a liberal student would not have been punished for the same kind of videotaping. (See O’Brien v. Welty, 818 F.3d 920 (9th Cir. 2016)).
(Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department.)