Free Speech vs. Civil Rights: Hate Speech on Campus

Introduction: Two Perspectives on Hate Speech

A gay couple walks hand-in-hand across campus. A man driving by in a car sees them and shouts, "Fags!" A Black student is working late at a local coffee shop. A professor from one of her classes comes in and tries to order a meal. She explains that the coffee shop is closing. He insists, becomes more and more upset, and eventually calls her a "bitch" and the n-word before stalking away.

Both the gay couple and the young woman have been subjected to extreme verbal abuse. But should the people who said these hateful things be punished? According to Thomas Grey's article, "Civil Rights vs. Civil Liberties: The Case of Discriminatory Verbal Harassment," whether or not the speakers should pay a price for their words depends on whether one adopts a civil liberties point of view or a civil rights point of view.

The civil liberties point of view holds that the speakers, though undeniably obnoxious, did not do any "real" harm. To punish them for their words would be a violation of their rights under the First Amendment.

The civil rights point of view disagrees. It holds that members of traditionally stigmatized and marginalized groups — such as African Americans, women, and LGBT people (lesbian, bisexual, gay, and transgender) — have a right to be free of a hostile environment. The speakers violated this right with their hostile, harmful words; therefore, the speakers should face punishment.

Clearly, these are two diametrically opposed points of view. In his article, Grey briefly outlines some of their major differences. These include disagreements about whether "psychic injury" is sufficient reason to curtail the right of free speech; differences in ideal realm of influence (public vs. private); differences in belief about whether any viewpoint can be deemed incorrect or invalid; and differences in focus — for example, action versus speech, and consequences of speech versus content of speech.

What Counts as Real Harm?

Perhaps the most obvious difference between civil liberties proponents and civil rights proponents is that civil liberties proponents believe words have a very limited ability to cause tangible injury. The government, they argue, has no right or duty to protect people from being offended or having their feelings hurt. Their philosophy, as explained by Grey, is the classic formulation: "Sticks and stones can break my bones, but words will never hurt me" (p. 339).

Civil rights proponents, however, believe that hateful words do inflict great harm, and that the phrase "hurt feelings" does not adequately address the agony endured by stigmatized groups. Civil rights proponents argue that, just as one person's right to swing his or her arm stops at another person's nose, so the right of one person to speak freely stops when the words uttered cause — or are likely to cause — psychic harm to another person. As Grey explains, "[T]he civil-rights approach, with its roots in anti-discrimination law and social policy, is centrally concerned with injuries of stigma and humiliation to those who are the victims of discrimination — conduct generating 'feelings of inferiority' that damage 'hearts and minds'..." (pp. 339–340).

Public vs. Private Spheres of Influence

Civil liberties and civil rights proponents also differ on the realms they wish to influence. According to Grey, "The active state is traditionally conceived as the sole or dominant threat to civil liberties" (p. 340). Thus, civil liberties proponents generally concern themselves with government or "formal" censorship and make little effort to protect people from "informal" expressions of disapproval.

Civil rights proponents, on the other hand, are concerned with both formal and informal instances of discriminatory speech. As Grey explains, "This 'anti-discrimination principle' goes beyond cleansing government action of bias; it also attacks discrimination on the suspect bases of race, sex, and so on, in other major institutions of civil society" (p. 340). Civil liberties proponents bristle when private citizens, as well as people acting in an official capacity, are banned from making racist, sexist, or homophobic remarks.

Conclusion: Incommensurable Values and Campus Policy

With so many opposing beliefs, it should be clear that the civil rights point of view and the civil liberties point of view are dramatically opposed, with little if any room for compromise. In his article, Grey describes the obstacles he encountered when drafting an anti-harassment policy at a university: "Many students of color and other civil-rights advocates...have opposed it...as too weak an anti-discrimination measure. At the same time, narrow as it is, the proposal retains enough of the civil-rights approach to trouble most civil libertarians" (p. 344).

Grey, refreshingly, does not try to manufacture common ground where none exists. He describes the conflict between civil libertarians and civil rights proponents as a "plural, sometimes incommensurable, structure [of] clusters of values and principles..." (p. 341). He reiterates that "[T]hey seem to me to be really sides — mutually incommensurable perspectives — rather than the poles of a well-defined continuum along which negotiators may approach each other in search of a solution that measurably splits the difference between them" (p. 344).

Grey's solution in crafting the university's campus anti-harassment policy was to try to acknowledge both sides of the issue. As he explains, "The provision is an attempt to accommodate competing values, to mediate the incommensurable conflict of civil-liberties and civil-rights approaches on this issue...I do believe that some such accommodating solution, as against a 'principled' choice implementing one approach to the exclusion of the other, is needed" (p. 344). The policy — which states the contradiction between civil liberties and civil rights upfront and severely limits the types of speech considered discriminatory or harassing — has drawn criticism from both civil libertarians and civil rights proponents alike.

In the end, there is no perfect solution. But as Grey makes clear, and as any serious engagement with this debate confirms, it is important to remain aware of both sides of the issue rather than putting on blinders against one viewpoint or the other. The tension between freedom of expression and protection from discrimination is not a problem to be solved so much as a conflict to be honestly navigated.