Scarp: What results from offensive speech is the real issue - East Valley Tribune: Columnists

QCHS Investigation Scarp: What results from offensive speech is the real issue

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Mark J. Scarp is a contributing columnist for the Tribune. Reach him at mscarp1@cox.net.

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Posted: Sunday, July 28, 2013 8:12 am

What educational goals are exactly being met by holding “Redneck Day” at a high school are uncertain.

But an event by that name held a few months ago at Queen Creek High School is being investigated by federal civil rights authorities, reminding us of some important things about the First Amendment right of free speech.

That guarantee says you generally have the right to say something that’s untrue, being responsible for whatever injury or other fallout that occurs as a result.

It also means that you generally have the right to say things that are insulting, so long as your remarks are not intended as an incitement to imminent harm to particular persons at an identifiable time or place, or to set up a hostile environment in workplaces or schools.

This interpretation, upheld by several U.S. Supreme Court decisions — the latest ruling just two years ago — is what those investigators should have in mind as they look into things at Queen Creek High.

Merely using the term “redneck,” as much as some people find it unflattering, even derogatory, isn’t against the law. Nor is the merely having a Confederate flag — the display of which occurred at the Queen Creek event — as much as many people understandably find it to be an enduring symbol of a society that once embraced the disgusting practice of slavery.

While most of us focus on the symbols, even the words, what the federal authorities should be closely looking at is the intentions behind and the results of speech.

In other words, they’ll be looking at whether that Confederate flag was observably intended to set up a racially hostile environment at the school. It’s one thing, to paraphrase another Supreme Court ruling in 2003, to set up a burning cross in a remote field; it’s another to set up that cross in the front yard of your neighbor’s home.

The justices have time and again said vile and offensive speech isn’t automatically denied First Amendment protection, recently saying it in their 2011 ruling involving the Kansas-based Westboro Baptist Church.

Westboro’s small congregation is given to protests around the country at funerals, notably those of American troops, asserting that the deceased met his or her demise as the result of God’s profound disgust at what church members see is an immoral society. Their signs bear harsh and ugly words.

But the high court determined that the First Amendment protects such speech, as disquieting and unnerving as it is, though the justices did set forth parameters for the protests to allow mourners some ability to hold the funerals without interference.

U.S. Sen. Jeff Flake’s teenaged son wasn’t arrested — nor should he have been — when it became known in June that he had posted online demeaning remarks about people of certain races, religions and sexual orientation. Father and son since have made a public apology.

No identifiable individuals were targeted by the teenager’s remarks. They were merely his misguided opinion, as much as most of us strongly disagree with such views. So Flake’s son had the right to be wrong and suffer consequences once he utters his opinions, on the theory that we should tread lightly when seeking to preventspeech with which we don’t agree. The reason is that the slippery slope we get on is producing lists of things you can and cannot say.

An Associated Press report in the Tribune this week about the federal investigation into “Redneck Day” says that civil rights activists believe the Confederate flag display set up “a racially hostile environment.”

The AP report quotes the U.S. Department of Education Office of Civil Rights as saying in a letter that “the display of the Confederate flag concerns rights protected by the First Amendment,” also saying its probe “will be limited to whether a racially hostile environment was created due to language and actions that were not protected by the First Amendment.”

Now, the Supreme Court has in some ways treated schools differently than other places, notably in a 1988 decision upholding a principal’s right to censor a high school newspaper under certain circumstances, applying the idea that student and adult speech rights are similar, but student speech that interferes with a school’s purpose to educate may not be free.

So it may be legal — although not exactly smart — to hold “Redneck Day” in a way that does not result in an intimidating environment. Maybe they did in Queen Creek. Maybe they didn’t.

We can only hope that whatever the federal investigators determine, that there’s a lesson for students, parents, teachers and administrators at Queen Creek High School and elsewhere about the power of speech to help and to harm and the ability to know the difference.

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