The Right Coast

May 31, 2004
Steve Hinkle and the First Amendment
By Gail Heriot

Now and then justice really does triumph. Some of you might remember Steve Hinkle, the Cal Poly student who was ordered by university officials to write an apology to his fellow students or face stiffer penalties. What had he done to cause offense? He posted a flier advertising a College Republican event. Yes, that's it, he posted a flier--and a pretty inoffensive one at that. Fortunately, through the efforts of the Center for Individual Rights (CIR) and the Foundation for Individual Rights in Education (FIRE), Hinkle's First Amendment rights have been vindicated in federal court.

Hinkle was attempting to publicize a talk by Mason Weaver, a Southern California radio personality and author of the book, "It's OK to Leave the Plantation." Weaver, with whom I've shared a podium in the past, is one of those most-reviled creatures on college campuses today--a Black conservative. He states on his web site that he believes in "independence, not co-dependence" and "equal rights, not special rights." You can agree with him or not, but these views are pretty much in line with the average American's (and, yes, they are pretty much in line with mine). The flier posted by Hinkle simply contained Weaver's name and photo, the title of his book, and the time and place of the talk.

When students at the campus multi-cultural center saw Hinkle distributing the flier, however, they called campus police to report "a suspicious white male passing out literature of an offensive racial nature." Hinkle was put through a seven-hour hearing after which he was found guilty of disruption and ordered to write letters of apology to the offended students. He was told he risked stiffer penalties up to expulsion if he refused. This is pretty scary stuff.

When CIR and FIRE came to Hinkle's rescue, Cal Poly made it clear that it would not back down easily. A lawsuit was therefore brought, which, after six months of litigation was finally settled. Cal Poly agreed to expunge the offense from Hinkle's record and pay $40,000 in attorneys' fees.

I'm happy with the result (although having the Cal Poly officials write Hinkle a letter of apology would have been a nice touch). Obviously, cases like this shouldn't happen, but they do, so at least it's comforting to know that there are organizations like CIR and FIRE out there to jump in. Fortunately for Hinkle, he knew enough to call them.

There is one thing, however, that troubles me. Beverly Eakman writes about the Hinkle settlement and makes a comparison between Hinkle (with whom she is rightly sympathetic) and John Rocker. She writes, "Think of the numerous phony hate-speech accusations that have been hurled at individuals over the past decade for spouting only controversial opinions - some of them, like baseball star John Rocker's, admittedly less tactful than others." It's worth noting that for many reasons the Rocker case was quite different from the Hinkle case. Rocker made a few boorish statements--statements that surely were protected by the First Amendment--but which were in fact likely to offend a significant number of people. And, unlike Hinkle, he was not punished by any governmental authority for his statements. Instead, two things happened. First, a number of people--rightly or wrongly, but in the full exercise of their own First Amendment rights--responded that John Rocker is a jerk. That's not an abridgement of the First Amendment. That's the First Amendment in all its glory; everybody gets their say, the good, the bad, and the ugly. Second, the Atlanta Braves--Rocker's employer--required him to undergo psychiatric treatment. Such an action may again be wise or foolish, but it is not a violation of Rocker's First Amendment rights. The Atlanta Braves are in the entertainment business. Their profits depend upon their ability to stay in the good graces of the their fans. They are thus perfectly within their rights to demand that their players refrain from making statements that will be regarded as boorish in public by any significant number of people, even if those statements are protected by the First Amendment and hence would be protected againt government interference. One could argue about whether the Braves over-reacted, but the law does not forbid an employer to over-react.