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Independent Student Newspaper Since 1969

The Badger Herald

Independent Student Newspaper Since 1969

The Badger Herald


First Amendment discourses must supersede ideology

Comprehensive free speech education must include discussion of marginalized groups’ resistance
Eddie Kustner

Madison365 recently reported the University of Wisconsin added several additions to the “Our Wisconsin” online course, which was required for all incoming students starting in fall of 2023. 

The new sections largely deal with concepts of free speech, and while most of the course was created by a third party, UW officials have added a number of customizations to the course, according to Madison365. For one, the modules mention student protest following the surfacing of a video expressing racist slurs and ideas in May 2023.

Another customization, which is causing concern for some, refers to the value of the First Amendment, particularly on a college campus.


“We recognize that it can be difficult and sometimes even painful to hear points of view with which individuals powerfully disagree,” the customizations said. “Even hate speech is protected speech.”

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The customizations went on to explain that tolerating speech that is hateful is the tradeoff of creating a campus community that fosters academic excellence and progress. Despite this caveat, the language used in the customizations presents warranted concerns about presenting an accurate, useful portrayal of the First Amendment and how it can be employed on college campuses.

At the most basic level, proclaiming that hate speech is protected under the First Amendment is not entirely false, but it’s also misleading and lacks the context necessary to prevent this information from being weaponized against marginalized communities.

In the 2011 decision Snyder v. Phelps, the Supreme Court of the United States ruled that hateful speech, on its own, is protected under the First Amendment. The Snyder ruling, however, does not extend to speech that involves illegal action. For example, hateful speech that incites violence, communicates true threats or rises to the level of a hate crime is unprotected.

There is a clear distinction between unbridled protection of hateful speech in any context, and the existence of limitations in some contexts. Yet, this distinction is not made clear in the customizations that proclaim the protection of hate speech.

Further, just because in certain circumstances hate speech does have protections from government censure, it doesn’t mean that kind of speech should be socially tolerated. This highlights the other major problem with the language in UW’s customizations — though hateful speech is generally protected under the First Amendment, this does not mean it is not harmful.

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In reality, hateful speech does not occur in a vacuum. Much of hateful speech is backed by historical or present-day oppression, so the use of speech as a weapon reinforces systems that commit institutional violence against marginalized people. 

When slurs, epithets or “othering” language is used against individuals, that language has wide reaching impacts, according to the Oxford University Press.

To this end, the First Amendment is much more complex than what the customizations imply. On its own, the notion that the tolerance of harmful speech is the price we pay for academic freedom leaves out a critical function of free speech in America.

All too often, contemporary discourses about free speech and expression position the First Amendment as a tool to protect bigoted speakers from government censure. But the First Amendment is also a critical tool of resistance against elite narratives. UW’s customizations offer some of the history of resistance to racism on campus, particularly led by Black students. But the explicit connection between this resistance and the exercise of First Amendment rights is lacking.

Over the course of American history, marginalized groups who have experienced discrimination at the hands of the government have used their First Amendment rights to criticize the people, institutions and legislation that contributed to their persecution.

The 1982 U.S. Supreme Court case NAACP v. Claiborne Hardware Company decided that nonviolent boycotts of racist, white business owners by members of the NAACP was protected expression under the First Amendment. The court held that protesters were acting within their rights to advocate for social change.

The constitutional basis of the NAACP decision was the 1969 ruling in Brandenburg v. Ohio. In this case, the Supreme Court upheld a KKK leader’s right to advocate for the teaching of racist doctrines — as long as the speech is not likely to produce “imminent lawless action.”

In short, First Amendment rights are complicated. We can disagree with certain applications of free speech without dismissing the concept altogether.

The First Amendment is not directed at protecting speech at one end of the political spectrum, but instead on protecting all kinds of speech from government persecution. Since racist speech is tolerated in certain cases, speech that decries racism must also be permitted. But the latter portion of this concept has been losing traction.

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Recently, First Amendment challenges have been controlled by conservatives on the Supreme Court, according to the New York Times. Since the 1970s, the Supreme Court has agreed to hear a growing number of First Amendment cases relating specifically to conservative speech, and rulings increasingly affirms people’s right to exclude and discriminate on the basis of free speech. As a result, discourses around the First Amendment, which were intended to not be ideological, are becoming much more dominated by conservative interests.

But when free speech is presented only as a conservative talking point, a critical function of the First Amendment is forgotten — the protection of the right to resist oppression. The association of free speech with conservatism coupled with experiences of harm as a result of protected speech has led some — especially those on the left — to resent the First Amendment altogether.

But now is not the time to give up on free speech. To empower people to exercise their rights, we must not convolute the First Amendment itself with the kind of speech it protects. As an institution looking to teach the importance of the First Amendment, UW has a responsibility to push back against mainstream narratives that free speech rights are intended to shield conservative expression alone.

It’s good that UW thinks it’s necessary to integrate a more comprehensive First Amendment education into every student’s college career. But without additional context, the new course may alienate people who have been disillusioned by modern free speech discourses — and threaten support for First Amendment rights.

Celia Hiorns ([email protected]) is a junior studying journalism and political science.

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