1st Amendment protects free speech, even when it is jarring and hateful

by Daniel Gutman -- ANR guest columnist
There’s a saying among lawyers that “bad facts make bad law.” The idea is that courts respond to emotionally charged cases with overcorrections in the law. 
A similar theme applies to the First Amendment. Communities sometimes respond to speech — especially hateful speech — with swift and punitive policies. The result is less speech for everyone. 
A little more than a week ago, a picture circulated depicting two Aurora students holding a Nazi flag in a locker room. The image is jarring. Although their faces are covered, one student has a thumbs up, seemingly approving the hateful message. 
The incident sparked outrage on social media and online message boards, with calls for expulsion and arrest. The school’s superintendent has vowed to investigate the incident “in conjunction with local law enforcement.”
For me, the incident hits close to home. My wife is a graduate of Aurora High School and we spend significant time in the community. Also, like many American Jews, my family came to the United States in the 1920s to escape rising antisemitism in Eastern Europe. After he left, my grandfather’s hometown became ground zero of the Nazi Holocaust. 
I don’t know what prompted the students’ alleged actions, or how the school will respond. But the incident underscores the inherent tension in balancing the need for robust public debate with the harm caused by hate speech. 
So where do we go from here? 
As the U.S. Supreme Court has instructed, “in public debate [we] must tolerate insulting, and even outrageous, speech in order to provide adequate ‘breathing space’ to the freedoms protected by the First Amendment.” In the context of public schools, administrators cannot prohibit student speech solely because the speech is offensive. 
Whatever the response, we should ensure open and free dialogue in our schools and communities, even if (particularly if) we vehemently disagree with the message. After all, the free flow of information and ideas is essential to effective self-government. 
Particularly with students, we should endeavor to counter speech with which we disagree with more speech, not less. 
Daniel Gutman is the director of the Stanton First Amendment Clinic at the University of Nebraska College of Law.