COLUMBIA — After the MU Police Department said Tuesday that students and staff should call them after hearing "hateful and/or hurtful speech," two attorneys took issue with the suggestion.

The department, in its email, said: "While cases of hateful and hurtful speech are not crimes, if the individual(s) identified are students, MU's Office of Student Conduct can take disciplinary action."

Sandy Davidson, an adjunct professor at the MU School of Law who teaches communications law, said that the email could lead to infringement of First Amendment rights.

"You can't restrict free speech based on concepts of decency," Davidson said. "The First Amendment is not to protect 'pretty' speech; it's designed to protect offensive speech."

Gregory Magarian, a Washington University in St. Louis law professor who specializes in free-speech issues, said the vagueness of the email is problematic. The email only says that students should report "hateful and/or hurtful speech," but doesn't define what that is.

"One cardinal rule in law on deciding what speech can be restricted is: Don't be vague," Magarian said. "If you are trying to strike the balance between what is restricted and what is not, you can't be vague and you can't leave authorities with too much latitude to interpret what speech is OK, and what speech is not."

Magarian said that there could be a "chilling effect" on free speech at MU.

He said that when speech is restricted, but it's not clear which speech is restricted, people are more cautious about what they say.

"It's important to make sure you don't chill, punish or deter speech that is protected and (speech) that doesn't fall into that zone of being threatening or unduly aggressive," Magarian said.

On Tuesday night, the American Civil Liberties Union of Missouri voiced its "disappointment" in the new MU Police Department initiative.

"The ACLU of Missouri is disappointed with the recent request by the University of Missouri Police to report ‘hurtful speech,’ which simultaneously does too much and too little," Jeffrey Mittman, Executive Director of the ACLU of Missouri, said in a statement. "Racial epithets addressed to a specific person in a threatening or intimidating manner can be illegal, and may require action by police and/or university administrators. But, no governmental entity has the authority to broadly prohibit ‘hurtful’ speech — or even undefined ‘hateful’ speech, or to discipline against it."

Magarian said though he is not an expert on university discipline, he's puzzled as to why calling the police would be encouraged when no crime is committed.

"Intuitively, you would think that if an incident happens on campus that's not a crime, then that should go to the university first," Magarian said. "And then, if the incident is of such outrageous conduct that it's illegal, too, then the university would refer it to law enforcement."

He added, "Whenever police get involved in any kind of action against someone's conduct, or behavior of speech, it ups the ante — the police are involved, that's serious stuff. And the fact that police are taking the lead here, maybe they're trying to send the message that the university takes this stuff seriously, but it seems like an odd place to start."

MU has definite race problems, but the new suggestion isn't the best way to handle the problem, Magarian said.

"This is not how to handle this problem in the best way," he said. "The vagueness of the terms, and the way the process works as described in the email is a real problem for some people who want to say things within their First Amendment rights."

Davidson took issue with the accuracy of the email itself. The email states that harmful and hurtful speech isn't illegal, but that's not always the case, Davidson said.

"If you put a person in fear of his or her own life, that is a crime," Davidson said. "The email is too broadly stated when it says 'cases of hateful and/or hurtful speech are not crimes.'"

She cited the Missouri Peace Disturbance Statute, which states when someone's free speech can be restricted. Included in this statute is "offensive language addressed in a face-to-face manner to a specific individual and uttered under circumstances which are likely to produce an immediate violent response from a reasonable recipient."

Davidson said she understands the intent to make MU a more pleasant place, but the freedom of speech still exists.

"At a state university, you do have a right to free, even offensive speech," she said.

Supervising editor is Jack Suntrup.

  • Missourian reporter, fall 2015 Studying journalism and Spanish Reach me at: jeafk2@mail.missouri.edu or in the newsroom at (573) 882-5720

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