Hate Speech on Campus: Free Speech vs. Speech Codes

Introduction: Free Speech and the Campus Dilemma

Colleges and universities have long portrayed themselves as bastions of free speech and expression. However, amid 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 their 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 examines how hate speech hurts victims and undermines tolerance. In conclusion, this paper argues that the First Amendment protects even hate speech, and that campus speech codes and other restrictions on freedom of expression therefore violate the Constitution.

Hate Speech Is Free Speech: The ACLU Argument

In the 1980s, the growing diversity on many campuses prompted a rise in verbal abuse directed at minorities, including women and people of color. In response, many universities developed codes geared toward 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. Rather than 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 minority representation 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 1996). On the other hand, the Court has also ruled that the wearing of swastikas and the burning of crosses are protected by the First Amendment. In a 1989 case involving a university student, the Supreme Court struck down a university ruling that punished an African-American student for calling a Caucasian student "white trash" (ACLU 1996).

These diverse examples illustrate the unconstitutionality of restrictions or policies designed to regulate freedom of speech and expression. In fact, such restrictions can produce unintended opposite effects. In Great Britain, for example, a 1965 Racial Relations Act that was intended to outlaw racial defamation was often used instead to persecute trade unionists, anti-nuclear protesters, and, ironically, people of color (ACLU 1996).

In light of these complications, many campuses have tried to develop policies designed to initiate dialogue, protect free speech, and promote tolerance. One university, 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 have actively worked to recruit minority students and 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 by regulating freedom of expression addresses only the symptom rather than the cure. 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: Lawrence's Framework

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.

Rather than invoking the First Amendment directly, Charles R. Lawrence III (1990) uses the legal framework of Brown v. 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 landmark 1954 case was the inherent message of inequality conveyed by separate schools. Segregated schools were expressions that signified the inferiority of Black children — that they were somehow not fit to attend school alongside white children. By declaring segregated schools unconstitutional, the Supreme Court effectively ruled that the signs and symbols of racial inferiority are unconstitutional as well.

Lawrence (1990) extends this principle to cover hate speech on college campuses. He argues that the spirit of the First Amendment was to foster discussion and initiate dialogue. By its very nature, however, racist speech functions as "a pre-emptive strike" (Lawrence 1990: 100). The "assaultive" character of such speech often cows minorities into silence and submission, because attempting to engage the perpetrator in dialogue risks escalating the confrontation into physical violence.

For Lawrence (1990), hate speech fosters an atmosphere of fear and contributes to the silencing of minorities on university campuses. A 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 educational opportunity when minority students face the risk of racist assaults as they walk through campus hallways to class.

Lawrence (1990) further argues that the First Amendment does not provide blanket protection to all forms of expression. Courts have ruled, for example, that obscene speech, libel, slander, and the dissemination of official secrets are exempted from First Amendment protection. Similarly, Lawrence points to the "fighting words" exception as a provision relevant to hate speech. The Supreme Court ruled that the First Amendment does 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 encompasses racist speech aimed at inciting individuals and groups to violent confrontation.

Lawrence thus argues that when they defend tolerance for all forms of expression, the ACLU and other civil rights activists place an unfair burden on people of color, who are the disproportionate victims of hate speech. It is people of color who must bear the emotional scars of such tolerance, and who must sacrifice their equal opportunity to learn in a welcoming educational environment. Because of this, Lawrence warns that those who protect hate speech in the name of the First Amendment "risk making the First Amendment an instrument of domination rather than a vehicle of liberation" (Lawrence 1990: 101).

Conclusion: Dialogue Over Censorship

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. However offensive hate speech may be, the solution involves long-term processes — dialogues, class discussions, seminars, and more inclusive school curricula. These steps can only be taken in an atmosphere of open, rather than restricted, communication.