It started with an invitation and ended with pepper spray and Tasers.

This past April, the University of North Carolina-Chapel Hill chapter of Youth for Western Civilization, a student group dedicated to the survival of Western civilization, invited former Colorado state congressman Tom Tancredo to come offer his opinions on tuition assistance for undocumented immigrant students. Tancredo, honorary chair of the YWC, is well-known for his radical anti-immigrant platform; he has called for the deportation of every undocumented immigrant in the country and a moratorium on all unsponsored immigration to the United States. His plan for national security included bombing Mecca and other holy sites in retribution for any future attacks, placing him too far right for even the conservative publication, The National Review, (whose commentator John Podhoretz knighted him “an idiot” on the magazine’s blog).

On April 16, 2009, Tancredo arrived at Bingham Hall, welcomed by the sight of student protesters. Before the event began, two students unfurled a banner at the front of the classroom where Tancredo was standing that read, “No dialogue with hate.” They were escorted out of the room by campus police, who released pepper spray and threatened the crowd waiting in the hallway with Tasers. Several students inside the classroom where Tancredo was scheduled to speak shouted and chanted. As the former congressman was about to start speaking, another banner was unfurled in front of him. Soon thereafter, the sound of glass shattering from a window breaking brought the event to a close.

Several protesters, including one UNC student, were arrested and face criminal charges. The Students for a Democratic Society (SDS) the group affiliated with the protest, has called for a university hate speech code policy that would presumably be broad enough to keep unsavory speakers such as Tancredo off campus. At the end of the day, the question worth asking is: Is silencing a form of speech?

If so, let’s see who was heard in the aftermath of the UNC protest. The campus police played a role in quickly resorting to pepper spray and threats of using Taser, which seems rather excessive for controlling a crowd of 30 students (an investigation is pending). The school administration has indicated that it plans to pursue criminal charges against at least one of its own students. Given that the student was arrested as she left her class over a week after the event, this action that is no doubt meant to send a chilling message to future would-be student protesters. The school administration’s concerns regarding free speech also seem misplaced – the school chancellor Holden Thorp quickly leapt to issue an apology to Tancredo, not recognizing that perhaps the “right to hear” of UNC students was more aggrieved. Finally, the invocation of university hate speech codes merits a word of caution to SDS and other campus groups.

Student speech on university campuses does not date back to the beginning of the university and it stands on precarious ground. Initially, universities were seen as in loco parentis, the surrogate parents of students who went to seek their education there; this is due to the fact that university students tended to be much younger until about the middle of the nineteenth century. Then, the demographic of universities shifted so that it was majority adult when the voting age dropped from twenty to eighteen years old with the ratification of the Twenty Sixth Amendment; the amendment acknowledged that the Vietnam conflict was fought with an unprecedented number of young people. The rising maturity of the college student gave new relevance and reach to the developing concept of academic freedom, which had been articulated for professors in 1913 by the American Association of University Professors.

Universities developed speech codes in the 1980s and 1990s, with the laudable intention of creating a safe and civil learning environment for learning by extending protection to certain groups who had previously been excluded from universities. Challenges to speech codes have revealed that they tended to be unconstitutionally overbroad and vague in targeting speech that was “offensive” or “hostile” – two concepts that sound the death knell of statutes in First Amendment doctrine. A Supreme Court decision in 1992, R.A.V. v. City of St. Paul, seemed to indicate that the codes would not pass constitutional muster for their viewpoint-based discrimination of certain, albeit odious, ideas. Universities have since attempted to reach the same ends through anti-harassment policies, which focus more on conduct than speech; however there are still legitimate concerns that the policies may suffer from vagueness and overbreadth.

Supporters of speech codes unsuccessfully likened the restrictions to the constitutionally permissible ban of “fighting words,” words likely to provoke a violent response. The problem is that in the university context, the speech at issue is often meant to provoke debate, albeit contentious, highly controversial and highly charged debate. It is rarely uttered to start a fistfight.

Speech codes may be an efficient way of controlling the fire, but they are hardly an effective means of tackling the difficult issues burning at the center of the tensions. Universities would do better to open up this dialogue rather than to push it underground where arguably hateful speech festers unresolved and unchallenged.

The AAUP has stated as its position on hate speech codes,

An institution of higher learning fails to fulfill its mission if it asserts the power to proscribe ideas—and racial or ethnic slurs, sexist epithets, or homophobic insults almost always express ideas, however repugnant. Indeed, by proscribing any ideas, a university sets an example that profoundly disserves its academic mission.

The argument that certain groups lack the means or the power to fend off hate ignores the point that a campus community that really wanted to address hate could throw the full force of its faculty and student body behind fighting it, just as Columbia University’s campus rallied against the noose that was found hanging from an African-American professor’s door.

Speech codes might even be seen as patronizing to the “protected class” in that they leave these leave these students without a forum where they can address the antagonistic views. The vice president of the Carolina Hispanic Association, Lizette Lopez sought exactly this kind of opportunity when she asked the hecklers to give the former congressman a chance to speak: “We are the children of immigrants, and this concerns us. So we would at least like to hear what [Tancredo] has to say if you want to hear what we have to say.” And for a moment, a space was created for dialogue. Unfortunately, then a window was broken, chaos ensued… and where there might have been speech, there was, instead, unproductive silencing in many different forms.

It is clear that Tancredo’s visit exposed a hornet’s nest of issues in the Chapel Hill university community, none of which got discussed that day. It may be an uncomfortable journey for students, faculty and administrators, but unfortunately, some dialogue with “hate” may be necessary at the UNC campus.