Hard Cases Make Bad Law

It is often said that hard cases make bad law, because when something particularly awful or unusual happens, logic is often subjugated by a judge’s, a jury’s, or a legislature’s desire to address the particular situation at hand.

 

It seems now that the admittedly very hard case of the Virginia Tech massacre is beginning to make some bad law at colleges and universities. Yesterday, Inside Higher Ed reported that administrators at Yale University banned the use of any realistic-looking weapons in theatrical productions at the school. This means that students wishing to stage productions like Hamlet, or any of the other significant theatrical works that have pivotal scenes involving violence, will have to settle for crude wooden swords, at the expense of their art. One student involved in Yale theater told Inside Higher Ed that “[t]his is an inappropriate way to show support [for Virginia Tech]. It’s an empty gesture and censorship of the arts.” While Yale, under public scrutiny, has since backed away from the ban, they will still require audiences to be “notified in advance of the use of fake guns, swords and knives.” Moreover, at least one production was affected by the ban before it was modified.

 

Elsewhere, the Associated Press reported that a professor at Emmanuel College in Boston was “fired after leading a classroom discussion about the Virginia Tech shootings in which he pointed a marker at some students and said ‘pow.’” According to the professor,

The professor has stated that administrators had specifically asked faculty to address the incident with students, but that because of the manner in which he chose to express himself on the topic, he received a letter stating that he had been fired and ordering him to stay off campus.

 

These incidents are reminiscent of a number of instances of campus censorship that occurred after 9/11, when students and faculty were investigated and/or punished for showing both too much and too little patriotism. It is not surprising that, when emotions are running high in the wake of such horrible events, people want to censor expression that they find insensitive (in the case of Professor Winset) and/or dangerous (in the case of stage weapons). But this is precisely why the First Amendment exists: because some rights—including the right to free expression—are so important that they must be removed from majoritarian consideration lest they be compromised by sways in public opinion. We cannot let a tragic event undermine the fundamental freedoms that define us as Americans.