On the plaque outside the Free Expression Tunnel, prominently displayed in gold letters below several lines of fine print, are the words “Express yourself!” But after what Chancellor James Oblinger called “hateful language” has been written on the tunnel’s walls twice in four months, the University has painted a new picture of the tunnel – one that seems to proclaim anything but “Express yourself!”
When controversial comments were painted in November about then President-Elect Barack Obama, Oblinger summoned a task force to “examine and articulate what boundaries, if any, should be imposed on the Free Expression Tunnel” and to consider “university practices for maintaining the Free Expression Tunnel.”
This isn’t the first time in this country that free speech at school has caused a stir. In 1965, three Iowa teenagers, led by John Tinker, wore black armbands to their public schools as a silent protest of the Vietnam War. Although none of the teens created a disruption, they were suspended from school.
Three years later, the case reached the U.S. Supreme Court, which gave a 7-2 decision in support of First Amendment rights. Justice Abe Fortas, who wrote the court’s opinion for Tinker v. Des Moines, noted that the decisions of the school principals were based upon “fear of a disturbance.”
“But, in our system,” held Fortas, “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.”
“Any variation from the majority’s opinion may inspire fear,” he wrote.
Concerns about the Free Expression Tunnel have largely been based on “undifferentiated fear” as well. The comments did not put anyone, Obama included, in imminent danger – at least no more than Tinker’s armband did.
Fortas also wrote that sheltering people from such comments is not a sufficient reason for intervention.
“In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint,” his opinion said.
The Supreme Court has repeatedly decided that suppression of free expression, no matter how controversial, is unconstitutional, so long as the expression does not incite “imminent lawless action,” as Justice William Douglas wrote in the 1969 decision for Brandenburg v. Ohio.
The consequences of removing or regulating the tunnel would be far more harmful than a few instances of “hateful language” spray-painted on its walls. The tunnel was created to stop illegal graffiti on campus. If it was decommissioned in one way or another, opinionated students would simply return to painting illegal graffiti on campus.
In suggesting the University “maintain” – Orwellian Newspeak for painting over comments deemed inappropriate – the tunnel, Oblinger has seemingly forgotten that remarks about Kay Yow were painted over by students, not University officials. Such self-policing, a form of silent argument, epitomizes freedom of speech. But when the state steps in, either with a paintbrush or bulldozer, it becomes no different than the Chinese government’s Golden Shield Project, known colloquially as the Great Firewall of China, which keeps surveillance on the Internet.
Similar surveillance of the Free Expression Tunnel would make it the State-Approved Expression Tunnel. And neither the Supreme Court nor the likes of Washington, Henry and Revere fought to uphold freedom at the convenience of the state.
If the boundaries and maintenance envisioned by Oblinger are put into place, University officials would have at least one other change to make to the tunnel: The plaque outside might as well read “Express yourself, but Big Brother is watching.”
