LAST MONTH, messages from two African-American organizations were painted over on Beta Bridge. Despite the FBI's finding that the incident was not racially motivated, there are lingering doubts. As any lawyer and student of the First Amendment will quickly point out, however, the issue was not whether the act was related to race. The problem was that, technically, no crime was committed.
Beta Bridge, which is situated on Rugby Road and owned by the City of Charlottesville, has become a classic example of what courts call a "public forum." Although it was not always so, the city has gradually ceded so much control that Beta Bridge has become a free-for-all. There is thus no legal recourse against messages that appear on the bridge -- no matter how offensive they may be. By the same token, however, students can always paint over messages they disagree with, and this may be the most powerful remedy of all.
The "public forum" doctrine generally asks whether a public area has been used from "time immemorial" for people to express themselves, in which case the government is prohibited from exercising any control whatsoever over the content of the messages expressed therein. And sure enough, as far back as anyone can remember, University students have used Beta Bridge indiscriminately as their public message board.
Charlottesville Mayor David Brown noted in an e-mail that he participated in painting the bridge as a University student in the 1970s. A search of University Web pages reveals that the bridge has been consistently used to express messages about everything from gay rights to violence against women, career services announcements, AIDS awareness, memorials for deaths in the community and, of course, fraternity and sorority events. There is no indication that the city has ever restricted messages on the bridge, nor could Brown recount any such instances.
Since the city has opened Beta Bridge to any and all messages, it has also tied its hands from preventing or removing particular messages -- even patently racist ones. This is because our society and our laws are based on the idea expressed by the French philosopher Voltaire, who stated that "I disapprove of what you say, but I will defend to the death your right to say it." Similarly, liberal groups like the American Civil Liberties Union have defended the legal rights of Nazis to march on public streets, despite the utterly incompatible values the Nazis hold.
Voltaire's fear -- and many Americans' fear -- was that once government starts prohibiting racists from advocating hate, it could also prohibit civil rights leaders from advocating change. In light of this very real threat, it is better to prevent government from controlling speech altogether. The price we pay for liberty is that we also have to allow for license.
Understandably, these ethereal First Amendment notions take a back seat to the visceral, emotional punch in the gut of a hateful message. However, any attempts at finding a legal cure may be worse than the cold. For example, even assuming that a racist message could be criminally prosecuted, the Law School's Prof. Robert O'Neil noted in an interview that "you'd have to leave it up as evidence
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