Two fans at Saturday night’s University of Wisconsin football game wore a costume featuring President Obama in a noose, with Donald Trump holding the rope.
One of the pair sported an Obama mask and had a noose around their neck. They also had a Hillary Clinton mask. The other person wore a Trump mask and held the noose to give the appearance Trump was hanging either Obama or Clinton.
University officials became aware of the costume and asked the pair to remove the offensive parts of it.
But the two weren’t kicked out of the game. As university officials repeatedly explained on Twitter, they were allowed to stay because officials viewed the costume as “free speech.”
The University of Wisconsin later released a statement denouncing the costume as “counter to the values of the University and athletic department,” but reiterating that it constituted “an exercise of the individual’s right to free speech.”
Tinker v. Des Moines established that in order to justify the suppression of speech, a public school must be able to show that the speech in question would “materially and substantially interfere” with the learning environment. “Hate speech” — speech that offends, threatens, or insults groups, based on race, color, religion, national origin, sexual orientation, disability, or other traits, as the American Bar Association puts it — isn’t addressed by the Constitution, but is usually understood to be protected speech.
As Michael Herz, co-director of the Floersheimer Center for Constitutional Democracy at Cardozo Law, told Politifact last year, “the overwhelming understanding is that ‘hate speech’ is constitutionally protected in the United States… Indeed, that protection makes this country different from most other countries in the world.”