“Silent Sam” and Freedom of Speech. An intersection of the “marketplace of ideas,” viewpoint discrimination, and government speech

By Robert Daniel

 

A. Tumbling Down

Bronze meets the dirt. On August 20, 2018, protesters forced “Silent Sam” down to the ground. In 1913, the Daughters of the Confederacy erected the statue in memory of UNC students who fought for the Confederacy in the Civil War. Silent Sam has been a point of controversy since the 1960’s. The movement to remove the statue gained significant strength in the past decade, especially in light of recent acts of violence by white supremacists in Charleston and Charlottesville. A focal point of protests has been the racist rhetoric used by one speaker at Silent Sam’s dedication. After the toppling of Silent Sam from his 100-plus-year perch, the school is grappling with its next move. What the school does may be impacted by an intersection of freedom of speech doctrines.

B. A Visit to the Highest Court — an Educational Marketplace or Government Speech?

The idea of freedom of speech in public schools and the idea of what constitutes government speech may be influential in Silent Sam’s future. In Tinker v. Des Moines Independent Community School Dist., the Court held that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” The Court ruled the paramount function of the American school is to facilitate a “marketplace of ideas.” The idea was that the government should refrain from participating in viewpoint discrimination. The Court noted, however, that a school could restrict speech when that speech would “materially and substantially interfere” with school safety and discipline.  Later, in Bethel School District No. 403 v. Fraser, the Court ruled that speech could be restricted if that speech is lewd, obscene, disruptive, or contrary to the educational mission of the school. The “freedom to advocate unpopular and controversial views in schools . . . must be balanced against the society’s countervailing interest in teaching students the boundaries of socially appropriate behavior.”

On the other hand, “Government speech” is not subject to scrutiny under a First Amendment claim. In Pleasant Grove City, Utah v. Summum, the Court held that a permanent monument in a public park was government speech. One would reasonably think that the monument represented the city’s viewpoints, and thus was not subject to scrutiny under the Free Speech clause. “Permanent monuments displayed on public property typically represent government speech.” Further, the Court held, privately financed or gifted monuments on public land also speak for the government. More recently, the Court in Walker v. Texas Div., Sons of Confederate Veterans, Inc., ruled that specialty license plates, in this case Sons of Confederate Veterans license plates adorned with a Confederate battle flag, also constituted government speech. The license plates, like the monument in Pleasant Grove, were so closely associated with the government, rendering them government speech immune from First Amendment challenges.

C. Sam’s Future—A Crossroads of Freedom of Speech in Public Schools and Government Speech

The Court has recognized the importance an educational “marketplace of ideas,” and that schools should avoid “viewpoint discrimination” by choosing sides on controversial issues. Those North Carolinians in the Silent Sam restoration camp may argue that the school’s taking sides would start a slippery slope of viewpoint discrimination, a common theme with speech regulation. Those in the removal camp would likely counter by arguing that removal should prevail to avoid “material and substantial interference” and because speech that is lewd, obscene, disruptive, or contrary to the educational mission of the school can and should be restricted.  Too, the removal camp may say, restoring the statue is just as much viewpoint discrimination as leaving it down.

The case of Silent Sam is most analogous to Pleasant Grove. Silent Sam is on the public ground of North Carolina’s flagship public university—thus many consider the statue government speech. “Public parks are often closely identified in the public mind with the government unit that owns the land.” Based on the Court’s rulings in Pleasant Grove, and Walker, the school may take whatever course of action it believes to be best, either removal or restoration, supported by the idea that a statue on state owned grounds is seen by many as speech endorsed by the state of North Carolina. In response to the episodes of violence surrounding Confederate symbols, the state may elect to distance itself from the Confederate controversy. Removing the statue would take away the argument that the state is endorsing speech that many may see as racist.

Alternatively, if a court does rule that Silent Sam is not government speech, those advocating removal seem to have a stronger argument for the prevention of “material and substantial interference” to UNC-Chapel Hill’s educational mission, in light of recent protests and violence.  Safety and striving for the school’s mission of preparing a diverse community for leadership likely will outweigh arguments for an educational “marketplace” and “viewpoint discrimination.”

In a controversial debate that, in reality, many North Carolinians may be divided on, there should certainly be concern over the slippery slope of government “viewpoint discrimination.” But it seems like the statue’s removal is the likely course Chapel Hill’s leaders will chart for the flagship school. Under the government speech doctrine, the government would be free to remove or restore the statue as it pleases in order to choose the speech it wishes to endorse.  Likely, racist rhetoric that has surrounded many Confederate statues is not speech the school wants to appear to support.