Viral Videos and Violations: The First Amendment on University Campuses

By Rachel LaBruyere, Staff Member (Vol. 16)

On MLK Day this year, University of Alabama student Harley Barber posted two expletive-laden videos to her finsta account. The first video featured Barber saying “I love how I act like I love black people because I fucking hate niggers.” After students threatened to inform Barber’s sorority about the video, she posted a second video ranting “[n]igger, nigger, nigger. I don’t care if it’s Martin Luther King Day. I’m in the south now bitch, so everybody can fuck off. I’m from New Jersey so I can say nigger as much as I want.”

After the videos went viral, Barber was kicked out of her sorority and expelled. She is not the first, and will certainly not be the last, student to face repercussions for offensive campus speech. Recent months have seen a series of similar cases — and the history of these cases stretches back decades. While the expression and language involved in these cases is certainly abhorrent, it is also constitutionally protected by the First Amendment. Which begs the question: does a university punishing students for protected speech violate the constitution?

The Doctrinal Line

Experts have opined that if Barber were to bring a First Amendment case against the university, it would likely be successful. Former ACLU attorneys penned an open letter to UA’s President expressing concern over Barber’s expulsion. They noted that UA is a public institution and therefore an agent of the state under the purview of the First Amendment. They also expressed dismay at the decision to expel Barber, noting “if the First Amendment allows the state to punish someone for ugly remarks that are profoundly offensive, as in this case, then it acquires the power to do the same for other speech that is offensive to those in power.”

This slippery slope argument is a persistent thread running through nearly all First Amendment case law. If the state can punish speech it finds offensive, where is the line demarcating offensive and non-offensive speech drawn? And, perhaps more importantly, who draws that line? If UA is allowed to punish Barber for this kind of speech, could another public university punish a student for claiming that Black Lives Matter? Justice Holmes once wrote that “[I]f there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought-not free thought for those who agree with us but freedom for the thought that we hate.” In the case of Harley Barber, it is not that her speech wasn’t worthy of full-throated denouncement, rather that such a denouncement cannot be coupled with punishment doled out by a state actor.

Barber seems unlikely to consider taking legal action against her former school. Her mother believes Barber got “what she deserved” and Barber herself has spoken out in remorse. Notwithstanding legal action, this would not only have been a constitutional violation, but also a missed opportunity.

Public Policy Arguments

That this punishment is unconstitutional may be a hard pill to swallow. There are many of you (myself included) whose first instinct is to call for swift and public punishment of this speech — an impulse that may be even stronger given the current tone and tenor of public discourse about race in this country. But not only do First Amendment principles militate against this impulse, public policy makes an even better case for why this impulse is counterproductive.

College campuses, courts have argued, are places where the marketplace of ideas is on full display, and therefore First Amendment protections are of even greater import. On campus, students constantly debate one another as they form, destroy, and re-form opinions about the world. If students like Barber are shunned from this space, they are also shut out from hearing the challenging opinions and engaging in the debates that were likely to occur as a result of their hateful (but protected speech) in the first place.

Rather than expel students like Barber, the Fourth Circuit has argued that public universities have “many constitutionally permissible means to protect female and minority students.” While the court doesn’t expound on what these alternatives might entail, it’s worth exploring a few possibilities.

Alternative Solutions

While there is no perfect solution to ending racism on college campuses, there are alternatives to addressing situations like Barber’s videos that stay within the bounds of the constitution, while addressing — rather than avoiding — the issue.

(1) Conversations between the student and campus groups.

What would it have looked like if, instead of leaving campus, Barber had to meet with leaders from black fraternities and sororities to talk about her behavior? What might she have learned in the process? Or what if, instead, she had been required to meet with the University of Alabama’s Intercultural Diversity Center staff to discuss the incident? It is likely that either of these options — while not perfect — could have led to more productive (and constitutional!) outcomes for both Barber and other students on campus.

(2) Anti-oppression/cultural literacy training conducted by a third party.

There is a strong argument that students who are the most affected should not be forced to confront their peers or be forced to perform the labor of teaching others why racist epithets are dehumanizing. Third-party groups could be contracted out to conduct intensive trainings for students who are being disciplined. These trainings often dig into things like structural racism and systems of oppression in ways that force students to unpack their own assumptions in a controlled, calm environment. In fact, this solution is one of the suggestions often raised by students themselves.

(3) Academic exploration of race.

Universities are, after all, places for knowledge and learning. Why not honor that in this situation as well? A quick search shows that the University of Alabama has a Department of African American Studies. Barber could be required to take a course with a professor in this department with the goals of education and accountability in mind. Imagine a world in which Barber had to research and write a paper about Alabama’s Black Belt communities or the Tuskegee Air Men, rather than being forced off campus. What would it look like to hold students accountable by making them explore their own biases and expand their knowledge of the communities they have offended?

Barber is just the latest student to catapult to infamy. But, unlike her, the next student in this situation might be ready to sue (and win) against a public university’s infringement on his or her First Amendment rights. Public universities should explore alternative solutions to incidents of campus racism. Not only does this avoid the risk of courting a lawsuit, it may allow for meaningful conversations and might just create room for real transformations on campus.