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University Gazette

The University of North Carolina at Chapel Hill

Mark Merritt on freedom of speech

Mark Merritt General Counsel, The University of North Carolina at Chapel Hill

Mark Merritt

Veteran Charlotte attorney Mark Merritt was named vice chancellor and general counsel at Carolina, effective Sept. 6, 2016.

Formerly a partner at the Charlotte law firm Robinson Bradshaw, Merritt is president-elect of the North Carolina State Bar. He has been named to the Woodward/White Inc. “The Best Lawyers in America” list and Business North Carolina’s Legal Elite Hall of Fame.

Serving as the University’s chief legal officer, Merritt provides legal advice and counsel to the Board of Trustees, the Chancellor, the administration, faculty and staff on legal matters involving or affecting the institution, as well as direct outside counsel on all cases and issues. Merritt also analyzes laws, regulations, proposed legislation and policies to assess their possible impact and serves as a liaison with the UNC system president, state Attorney General and other authorities on legal issues.

How do you know when a comment has crossed the line from free speech to hate speech?

That question is difficult to answer in the abstract. Political speech is at the core of the protections of the First Amendment. The Supreme Court has protected speech that addresses political and social issues aggressively, including speech that many people would find offensive or hurtful. When speech crosses the line into unprotected speech, which has been historically limited to so-called “fighting words” that are so offensive as to invoke a violent response, threats or intimidation, the ability of a University to regulate speech comes more strongly into play.  Speech of an ongoing or harassing nature that is targeted toward a particular individual can also give the University the ability to invoke its policies against harassment or discrimination.

Are faculty members allowed to express political opinions in the classroom? Are students allowed to express opposing opinions?

Students and faculty are allowed to express political opinions in the classroom as part of class discussions. That is expected to occur at a University where robust discussions and diversity of opinion is part of the educational process. What is not allowed is speech that is made in a way that disrupts the classroom learning environment. Views can be strongly held and expressed, but are best made in a respectful and open-minded manner that allows informed debate and that does not devolve into personal attacks. Our faculty has to exercise good judgment over when speech in a classroom crosses the line from spirited debate to disruptive speech.

What should the University do to protect the free speech rights of a controversial guest speaker?

The University has a long tradition of being a place where a diversity of views are respected and speakers are allowed to express views that may be controversial. The University has rules in place that are designed to prevent speakers who are invited here from being disrupted and to make sure that events are conducted respectfully of speakers and opposing views.

What if the speaker promotes racism, anti-Semitism or violence? 

The Supreme Court has been clear that the best response to hate speech is not to attempt to restrict it but to promote speech that counters the hate and appeals to our highest and best values. Sometimes we have to hear the hate speech to know what we are up against, to understand the societal forces that promoted that hate speech and to learn how to address and remediate what led to the hate speech in the first instance. We do not want to live in a society where the government determines what speech is allowed based on its content. The First Amendment was intended to prevent governments from becoming censors of free speech. The responsibility that comes with free speech is that it requires that at times we have thick skins and understand that good speech is the antidote to bad speech.

Is a protest that prevents a controversial speaker from making a speech a suppression of free speech?

The answer is yes. The irony is that the suppression of a controversial speaker often raises that speaker’s profile and promotes broader dissemination of the controversial message. If you disagree with someone’s speech that is protected by the First Amendment but offensive to you, the best response is to counter that speech with a forceful, well-reasoned and thoughtful rebuttal that addresses the issue at hand.  UNC is one of two universities in the state and the only public university that has a green light rating from FIRE, the organization that monitors and rates respect for the First Amendment on campuses. I hope that we can keep that rating and maintain our historical respect for the important values the First Amendment protects.