Law professor breaks down legal options for K-State amid tweet controversy

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TOPEKA, Kan. (KSNT) – Student-athletes at K-State have promised to not return to school activities until consequences are brought down on a student who mocked George Floyd’s death on Twitter last week.

While legally, the viral tweet isn’t hate speech, K-state’s administration is doing what they can to support their student-athletes, but the options are limited. In 1969, the US Supreme Court made a landmark decision in Brandenburg vs Ohio, essentially saying the government can’t punish inflammatory speech unless it’s producing imminent danger. That applies to the tweet seen by thousands last week, but the school can make a difference going forward.

“I think it goes without saying but I guess it should be said that the tweets we’re talking about are deeply offensive and reprehensible but freedom of speech is an important right so it’s hard to know exactly how to deal with this,” Washburn Law School professor Craig Martin said.

While coaches, athletes, and the university can verbally take a stand, legally, things are more complex, and the damage has been done.

“In terms of responding to this particular incident, it’s not possible for K-State to develop a new policy that would apply retroactively but, of course, part of the demands are from the athletes, that K-State develop policies to govern this kind of conduct going forward and of course, I think public institutions need to explore those options.”

As a public school, the options can be limited.

“In contrast to other countries like Canada or many of the countries in western Europe that do limit hate speech, the United States has protected hate speech and so that leaves public institutions like K-State, which is a public university, in a bit of a bind,” Martin continued.

That tough situation stretches much farther than the school, and in the eyes of the professor, it may be time for change.

“We’re in a moment in the united state where we are starting to grapple with its legacy of racism and systemic and structural racism that has included condoning of a problem of hate speech, and so it may be for us that the time is right to rethink how you strike that balance between the rights of freedom of speech on one hand and the rights of victims of hate speech on the other.”

Hate speech may be protected, but it has its consequences.

“While we tend to protect in the name of freedom of speech, hate speech is itself undermining the value of freedom of speech, so these are big issues we need to be talking about in the context of this moment where we’re trying to grapple with all of the aspects of systemic and structural racism in this country.”

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