A CENTRAL TENET OF THE FIRST AMENDMENT COMMANDS THAT THE GOVERNMENT REMAIN NEUTRAL IN THE FREE FLOW OF IDEAS. AMERICAN BAR ASSOCIATION, ABA JOURNAL JUNE 2017.
ON WEDNESDAY, JUNE 30, 2020, Colorado State University announced that it has expelled an incoming student for "racist social media posts." The University further claimed, "Due to the violent and threatening language used, this post moved beyond the protections of the First Amendment." I have scoured the internet for the language used in the social media post and I have not found the actual language. The actual language is necessary for a full First Amendment analysis; however, I will make a few observations.
Colorado State University is a state (government) university pursuant to the Colorado Constitution. Art. VIII Section 5. As a state institution, the 1st Amendment protections apply to protect students and faculty from an overreaching censoring governmental body. This is not a private university but rather a public university censoring and punishing an incoming student for this student's speech. They don't like the content of the speech.
Can the university label the speech as "racist" or "homophobic" and punish this person by expelling them prior to even starting his/her first semester? Once again, I do not know the language in the post. But the salient test is found in the US Supreme Court case of Brandenburg v. Ohio, 395 U.S. 444 (1969). Speech may be prohibited if (1) the speech is "directed at inciting or producing imminent lawless action" and (2) it is "likely to incite or produce such action."
Clarence Brandenburg was a Klu Klux Klan member who was filmed by a local news station in his KKK hooded uniform standing with other KKK members around a burning cross. Mr. Brandenburg spoke on camera and stated that "Personally, I believe the N word should be returned to Africa, the Jew returned to Isreal." Mr. Brandenburg then indicated there would be a KKK march "on Congress" on the 4th of July. Pursuant to an Ohio criminal statute, Mr. Brandenburg was prosecuted for advocating political change through the use of force. He was convicted and sentenced to ten (10) years in prison.
Eventually the case was heard by the United States Supreme Court. The Court found that the statute in question proscribed the content of a person's speech as well as the person's right to peacefully assemble. Therefore the statute was unconstitutional and the criminal conviction of Mr. Clarence Brandenburg was overturned. Of note, the Court developed the two prong test in looking at whether speech may be banned.
No doubt Mr. Brandenburg's speech was reprehensible. However, the test is not whether we find the speech acceptable but whether (1) it was directed to cause an IMMINENT lawless action and (2) the speech was LIKELY to cause that action.
The speech at issue in the CSU debate was posted on social media in June 2020. There was not an immediate violent or lawless action. Because we do not know the actual language used, we cannot analyze whether the language would likely cause that action. However, the fact there was not lawlessness speaks volumes.
Although this young person may have some reprehensible ideas about race or homosexuality, the fact the government has come in and punished him/her for his/her speech (his/her ideas and thoughts) is wrong. The quote for the American Bar Association fits perfectly - the Government must remain neutral in the free flow of ideas.