The University of Missouri Police Department is asking students to report constitutionally protected speech that is “hateful” or “hurtful,” alarming First Amendment experts.

Legal experts say the request – blasted in a Tuesday email to students – risks chilling the exercise of student speech rights and that police officers and administrators at the public university generally cannot punish offensive speech anyhow.

In the email asking students to “call the police immediately” if they hear hateful or hurtful speech, the police department concedes "cases of hateful and hurtful speech are not crimes," but says "if the individual(s) identified are students, MU’s Office of Student Conduct can take disciplinary action.”

The higher education-focused news publication Campus Reform published a screenshot of the email, which quickly was denounced by UCLA law professor Eugene Volokh on his popular legal blog and by the state chapter of the American Civil Liberties Union.

A day later, scholars piled on, noting the university may be risking lawsuits with its request for reports, which one scholar says called to mind McCarthyism.

“This tells me this university is totally without governance at this point and is wandering into major, major constitutional problems,” says University of Missouri law professor Josh Hawley, who is on leave from the school as he campaigns to be Missouri’s next attorney general.

Indeed, the university is without a president as a result of a protest movement that forced the previous office holder to resign Monday over what students deemed a weak response to incidents of racism, including at least two cases of black students – one of them the student body president – allegedly being called the N-word by passersby and a swastika being drawn with feces.

But John Inazu, a law professor at Washington University in St. Louis, says it’s perfectly legal to say many things that hurt the feelings of others, even on college campuses.

“First Amendment law is clear that 'hateful' and 'hurtful' speech cannot be regulated on those bases alone,” Inazu says. “Speech that incites an immediate breach of the peace can be regulated, but targeting less imminent and more vaguely defined categories of speech is worrisome.“

One such example of illegal speech, an alleged threat of violence, resulted in an arrest by the campus police department Wednesday.

University of Missouri police asked students to report "hurtful" speech Tuesday in this campus email.

Courtesy of Campus Reform

Ari Cohn, an attorney for the highly litigious Foundation for Individual Rights in Education, says it’s shocking that the university would make the broad solicitation.

Cohn says FIRE would like to hear right away from any student punished by the university for so-called “hurtful” or “hateful” speech.

“The fact that [campus police] said, 'If you have your feelings hurt, give us a call’ is completely inappropriate,” Cohn says. “A large percentage of hateful or hurtful speech is protected by the First Amendment.”

Cohn says the school could face a substantial lawsuit if it actually punishes a student for simply hurtful speech.

“To insinuate in an email from the police department that such speech should be reported to the police is deeply chilling,” Cohn adds. “What student would want to say something that would remotely risk having a police report filed against them?”

Hawley, too, says the school should be “very, very concerned about First Amendment litigation.” He believes if the school stands by the apparent policy and there’s a significant chill to student speech rights, the school could face a lawsuit on those grounds alone, even without a reported incident.

“This is absolutely shocking, it needs to be rescinded immediately and whomever approved this in the administration needs to be called to account,” he says. “That this comes from law enforcement is absolutely jaw-dropping.”

Cohn says that, contrary to the police statement, the college’s Office of Student Conduct likely cannot discipline students for offensive speech such as a one-time utterance of the N-word. He says schools can punish discriminatory harassment, but that the Supreme Court’s definition of harassment in its 1999 Davis v. Monroe County Board of Education decision appears to protect one-time insults.

In that ruling about sexual harassment, schools were put on the hook for behavior "so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.”

“Mean speech happens and it’s unfortunate and it shouldn’t happen,” Cohn says. “But it does, and if we turn a single instance of offensive or hurtful speech into harassment we’re going to end up with not much we can say given how easily people take offense these days."