Largely unnoticed in the recent clashes between black and white students over free speech rights at the University of Pennsylvania was a fundamental conflict between two groups of lawyers _ one white and the other black. The First Amendment issues raised go well beyond the University of Pennsylvania.
Sixteen members of the university's law school wrote an open letter to university President Sheldon Hackney concerning the confiscation of a day's run of the student newspaper, the Daily Pennsylvanian _ 14,200 copies _ by black students who consider the paper racist.
One of the law professors told me he could not recall that many members of the law faculty ever before publicly chastising a president of the university _ a president, moreover, who had just been nominated by the president of the United States to be head of the National Endowment for the Humanities.
The letter to Hackney began by stating that "the removal of the newspaperwas a direct denial of the principle which is most basic to the university. It was conduct which cannot be excused or tolerated. The fact that the newspapers were confiscated as an act of protest cannot excuse it or make it any less intolerable. Those who disagree, of course, are entitled to protest, but not by attempting to silence those with whom they disagree."
Hackney had responded to the destruction of the newspaper by not condoning the act, but he also did not condemn it. Instead he said, in a pass at even-handedness, that "two important university values _ diversity and open expression _ seem to be in conflict."
The law professors would have none of that: "The important university values of diversity and open expression were not in conflict here. The offensive columns in no way prevented the university from carrying out its policy of diversity and its many programs to promote understanding. Removal of the newspapers struck at the very heart of the most fundamental diversity which the university should foster _ diversity of thought, views and expression."
There was a dissent. Law professor Ralph Smith, who is black, wrote, "The right to protest injustice and oppression deserves no less protection than the right to publish."
Meanwhile, Sheldon Hackney received another letter. It was from the National Conference of Black Lawyers and was signed by Lorray Brown, president of the Philadelphia chapter. Among the arguments of the black lawyers group is that the material published by the student newspaper was "intended to inflict psychic injuries" on black students. And in a closed campus environment this is not protected speech. Accordingly, its perpetrators cannot hide "behind the First Amendment. Speech that would ordinarily be protected is subject to regulation when the speech invades the privacy of the unwilling listener's home, or when the unwilling listener cannot avoid the message."
So that should mean that psychically-injured Jewish students can destroy certain publications of the Nation of Islam distributed on campus.
Even in "a closed campus environment," cannot a student just ignore the newspaper? No, says the black lawyers group. "A student need not read the paper. The knowledge of the newspaper's consistent publication of offensive material makes mere observation of its presence a disturbing experience."
If that bold innovation in First Amendment law is ever affirmed by the courts, a huge swath may be cut through all sorts of publications by all sorts of groups claiming to be in "closed environments."
As for the destruction of the 14,200 newspapers, the National Conference of Black Lawyers described that act as "the justified, constitutionally protected protest of the university's African-American community." It was "a demonstration protected by the First Amendment. The law has long recognized that "speech' is not limited to the spoken or written word."
After all, the letter went on, in Texas vs. Johnson, the Supreme Court ruled that burning an American flag as a symbolic protest is protected speech. So, too, said the black lawyers group, was the hijacking of newspapers a symbolic political protest. However, burning the flag only offends. It does not violate, for instance, the constitutional right to a free press as well as the reader's right to freely read the press.
These black lawyers have provided distorted mentoring to the university's black students. Instead of reminding them of how Malcolm X, Martin Luther King, Fannie Lou Hamer and Jesse Jackson, among many others, have powerfully used free speech that inflicted psychic injury on many whites, the National Conference of Black Lawyers keeps on teaching the politics of victimization _ not empowerment.
Nat Hentoff is a nationally renowned authority on the First Amendment and the rest of the Bill of Rights.