Colleges and universities have always portrayed themselves as the bastions of free speech and expression. However, in the growing diversity of college communities, more universities struggle to maintain the balance between protecting free speech and providing a welcoming learning environment for all its constituents.
As a result, many campuses have initiated speech codes, intended to protect people and groups from hate speech, which is often accompanied by violence. This in turn has given rise to charges that though hate speech may be offensive, it is also free speech and therefore deserves protection under the First Amendment.
The first part of this paper examines arguments that hate speech deserves constitutional protection. The next part then examines how hate speech hurts victims and destroys tolerance. In the conclusion, this paper argues that the First Amendment protects even hate speech. Thus, campus speech codes and other restrictions on freedom of expression violate the Constitution.
Hate speech is free speech
In the 1980s, the growing diversity in many campuses has also prompted a rise in verbal abuse directed at minorities, such as women and people of color. In response, many universities developed codes geared towards regulating any speech that "offends any group based on race, gender, ethnicity, religion or sexual orientation" (ACLU 1996: 94).
These broad-based policies, however, did not stop the harassment. Instead, the ACLU argues that the regulation of hate speech has simply driven the problem underground. After all, hate speech is merely symbolic of the greater problem of bigotry.
Instead of focusing on speech codes or other cosmetic changes, the ACLU believes that universities should tackle the real problems that contribute to bigotry - such as the lack of minorities on campus, raising awareness among current students and devising more inclusive approaches to different subjects (ACLU 1996).
The fact that courts have consistently ruled against even well meaning speech codes, argues the ACLU, shows the futility of addressing unpopular or unwelcome speech through restrictive policies.
Such experiences run the gamut of the political spectrum. In 1969, for example, the Supreme Court held that a public school student had the right to wear a black armband to protest the Vietnam War.
Similarly, an individual could burn a flag to protest government policies (ACLU 1966).
On the other hand, the Court has also ruled that the wearing of swastikas and burning crosses are protected by the First Amendment as well. In a 1989 case involving students of the University of Michigan, the Supreme Court also struck down a university ruling that punished an African-American student for calling a Caucasian students "white trash" (ACLU 1996).
These diverse examples show the unconstitutionality of any restrictions or policies designed to regulate freedom of speech and expression. In fact, these restrictions can have an unintended opposite effect. In Great Britain, for example, a 1965 Racial Relations Act that supposedly outlaws racial defamation has often been used instead to persecute trade unionists, anti-nuclear protesters and ironically, people of color (ACLU 1996).
In this light, many campuses have tried to come up with policies designed to initiate dialogue, protect free speech and promote tolerance. The University of Arizona, for example, assembled a team of faculty, students and administrators into a "Campus Environment Team," which provides information and referral services to its campus constituents. Other universities are actively working to recruit minority students as well as faculty. More significantly, many universities have taken steps to integrate the experiences and knowledge of other cultures into their curricula.
Hate speech is merely a symptom of the greater problems underlying society. Attempting to erase bigotry through regulating freedom of expression merely addresses the symptom and not the cure. Instead, as the ACLU suggests, "where racist, sexist and homophobic speech is concerned...more speech - not less - is the best revenge" (ACLU 1996: 95).
Hate speech should be restricted
While the ACLU frames the issue of speech codes as a violation of the First Amendment, supporters of speech codes focus on the responsibility of universities to provide equal learning opportunities.
Instead of the First Amendment, Charles R. Lawrence III (1990) uses the legal framework of Brown vs. Board of Education to study and justify the need for speech codes on campus. Lawrence argues that part of the reason the Supreme Court struck down segregation in the 1954 landmark case was the inherent message of inequality presented by separate schools.
The implication was that separate schools were messages or expressions that signified the inferiority of black children, who were somehow not fit to go to school with white children. By declaring segregated schools as unconstitutional, the Supreme Court thus ruled that the signs and symbols of the racial inferiority of black children are unconstitutional as well.
Lawrence (1990) extends this principle to cover the issue of hate speech on college campuses. He argues that the spirit of the First Amendment was to foster discussion and to initiate dialogue. By their very nature, however, racist speech is akin to "a pre-emptive strike" (Lawrence 1990: 100).
The "assaultive" nature of such speech often cows minorities into silence and submission, because trying to engage the perpetrator into dialogue will only lead to an escalation of words and to physical violence.
For Lawrence (1990), hate speech and expressions foster an atmosphere of fear and contribute to the silencing of minorities on university campuses. The minority student's right to feel safe in her dormitory, for example, can be severely compromised by racist flyers and graffiti in bathrooms and other common areas. Furthermore, it is difficult to maintain equal education opportunities when minority students run the risk of racist assaults as they pass through a university's hallways en route to class.
Furthermore, Lawrence (1990) argues that the First Amendment does not provide blanket protection to all forms of expression. For example, courts have ruled that obscene speech, libel, slander and the dissemination of official secrets were exempted from First Amendment protection.
Similarly, Lawrence (1990) points to the "fighting words" exception of the Fist Amendment as a provision relevant to hate speech.
The Supreme Court ruled that the First Amendment did not protect words which "by their very utterance inflict injury or tend to incite an immediate breach of the peace" (qtd in Lawrence 1990: 100). For Lawrence, this "fighting words" provision clearly includes racist speech aimed at inciting individuals and groups into violent confrontation.
Lawrence thus argues that when they argue for the tolerance of all forms of expression, the ACLU and other civil rights activists place an unfair burden on the people of color who are the inordinate victims of hate speech. It is people of color who must suffer the emotional scars of such tolerance. It is people of color who must then give up their equal opportunity to learn in a welcoming educational environment.
Because of this effect, Lawrence argues that those who protect hate speech in the name of the First Amendment "risk making the First Amendment (into) an instrument of domination rather than a vehicle of liberation" (Lawrence 1990: 101).
Position: Hate Speech must be protected
While Lawrence presents powerful arguments on the importance of equal education opportunities, his writings fail to address the importance of defending the First Amendment from detractors of "offensive" forms of expression.
Throughout the history of this country, groups have fought to restrict unpopular and offensive speech. In the 1920s, for example, Margaret Sanger was jailed on obscenity charges after she distributed pamphlets on birth control. In the 1930s, efforts were made to ban representatives of Jehovah's Witnesses from excessive proselytizing.
More recently, American citizens who questioned the Bush administration's "war on terror" campaign have been characterized as traitors.
These diverse examples show a common thread. Time and time again, interest groups have tried to address unpopular ideas through various degrees of silencing and censorship. Instead of facing their opponents in a spirit of dialogue and debate, history is replete with examples of how a conservative status quo had tried to silence the voices of its dissenting members. Often, the only thing that stood in their way was the tenacity of civil rights activists and the courage of judges who interpreted the law.
In the case of speech codes on campus, the tide seems to be reversed. Many women, for example, seem to have acquired some power by no longer being subject to phrases ranging from "Women cannot be good doctors" to "You have a nice ass." Racial minorities can bring charges against people who use racial epithets.
However, policies restricting racist speech are necessarily broad and vague. As a result, the examples discussed previously can easily get out of hand.
In the book The Shadow University, Alan Charles Kors and Harvey A. Silvergate (1999) chronicles how the nation's best universities have enacted blatantly unconstitutional speech codes to restrict politically incorrect forms of thinking. These examples include a resident assistant who was relieved of his position for after he refused, on religious reasons, to watch a sexually explicit film on gay life. A student was threatened with…