Hate Speech, the First Amendment, and Campus Speech Codes

Constitutional Foundations of Free Speech

The Constitution of the United States was drafted in 1787, ratified in 1788, and put into operation in 1789. The ten amendments constituting the Bill of Rights were adopted in 1791. The First of these restricted the new government's powers with regard to speech and the press: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Interpretations of the First Amendment are at the center of legal debates about free speech and hate speech. Like many provisions in the Constitution, the exact meaning of the First Amendment and the implications it held for the Founding Fathers are unclear. It provides a general orientation for federal action, but how it is to be made operational is open to discussion. The conclusion reached will depend on the overall interpretive framework one uses. These frameworks, in turn, merge into one's political and social philosophy. For example, at the time of its adoption, many thoughtful people believed that government should not prohibit the publication of one's views but could and should punish writers for the harmful effects of such publication. This view, while plausible, is not the dominant interpretation today.

The Constitution does not offer a rationale or ground for a broad principle of free speech. Should speech be unrestricted because efficient democracy requires it? Because it will facilitate the discovery of truth? Because people have a natural right to speak their minds? The Constitution itself offers little guidance. The rationale may be crucial when applying the general principle to difficult cases, and it is supplied by one's interpretive framework, which is closely associated with one's political and social philosophy.

College Campus Hate-Speech Codes

Many universities, under pressure to respond to the concerns of those who are the targets of hate, have adopted codes or policies prohibiting speech that offends any group based on race, gender, ethnicity, religion, or sexual orientation.

However, the First Amendment protects speech no matter how offensive its content. Speech codes adopted by government-financed state colleges and universities amount to government censorship in violation of the Constitution. How much we value the right of free speech is put to its severest test when the speaker is someone we disagree with most. Speech that deeply offends our morality or is hostile to our way of life warrants the same constitutional protection as other speech because the right of free speech is indivisible: when one of us is denied this right, all of us are denied. Where racist, sexist, and homophobic speech is concerned, the ACLU believes that more speech — not less — is the best remedy. This is particularly true at universities, whose mission is to facilitate learning through open debate and study. Speech codes are not the way to go on campuses, where all views are entitled to be heard, explored, supported, or refuted. When hate is out in the open, people can see the problem, organize effectively to counter bad attitudes, and forge solidarity against intolerance.

College administrators may find speech codes attractive as a quick fix, but as one critic put it: "Verbal purity is not social change." Codes that punish bigoted speech treat only the symptom; the problem itself is bigotry. Instead of opting for gestures that only appear to cure the disease, universities must do the hard work of recruitment to increase faculty and student diversity, provide counseling to raise awareness about bigotry and its history, and change curricula to institutionalize more inclusive approaches to all subject matter.

Free speech rights are indivisible. Restricting the speech of one group or individual jeopardizes everyone's rights, because the same laws or regulations used to silence bigots can be used to silence anyone. Conversely, laws that defend free speech for bigots can be used to defend the rights of civil rights workers, antiwar protesters, lesbian and gay activists, and others fighting for justice.

Historically, defamation laws and codes have proven ineffective at best and counterproductive at worst. Depending on how they are interpreted and enforced, they can actually work against the interests of the people they were ostensibly created to protect, because the ultimate power to decide what speech is offensive rests with the authorities — the government or a college administration — not with those who are the alleged victims of hate speech.

In Great Britain, for example, a Racial Relations Act was adopted in 1965 to outlaw racist defamation. Throughout its existence, however, the Act was largely used to persecute activists of color, trade unionists, and antinuclear protesters, while racists — often white members of Parliament — went unpunished.

Similarly, under a speech code in effect at one university for eighteen months, white students in twenty cases charged black students with offensive speech. One case resulted in the punishment of a black student for using the term "white trash" in conversation with a white student. The code was struck down as unconstitutional in 1989. These examples demonstrate that speech codes do not really serve the interests of persecuted groups. The First Amendment does. As one African-American educator observed: "I have always felt as a minority person that we have to protect the rights of all because if we infringe on the rights of any persons, we'll be next."

Speech codes, by simply deterring students from saying out loud what they will continue to think in private, merely drive biases underground where they cannot be addressed. In 1990, when Brown University expelled a student for shouting racist epithets on campus, the institution accomplished nothing in the way of exposing the bankruptcy of racist ideas.

Fighting Words and Hate Symbols

The U.S. Supreme Court ruled in 1942, in Chaplinsky v. New Hampshire, that intimidating speech directed at a specific individual in a face-to-face confrontation amounts to "fighting words," and that the person engaging in such speech can be punished if "by their very utterance [the words] inflict injury or tend to incite an immediate breach of the peace." For example, if a white student stops a black student on campus and utters a racial slur, that one-on-one confrontation — which could easily come to blows — could be the basis for disciplinary action under the "fighting words" doctrine for racial harassment.

Over the past fifty years, however, the Court has not found the "fighting words" doctrine applicable in any of the hate-speech cases that have come before it, since those incidents did not meet the narrow criteria stated above. Those who advocate campus speech codes have tried to stretch the doctrine's application to fit words or symbols that cause discomfort, offense, or emotional pain — a stretch the courts have consistently rejected.

Symbols of hate are constitutionally protected if they are worn or displayed before a general audience in a public place — say, in a march or at a rally in a public park. But the First Amendment does not protect the use of nonverbal symbols to encroach upon or desecrate private property, such as burning a cross on someone's lawn or spray-painting a swastika on the wall of a synagogue or dormitory.

In its 1992 decision in R.A.V. v. St. Paul, the Supreme Court struck down as unconstitutional a city ordinance that prohibited cross-burnings based on their symbolism, which the ordinance said made many people feel "anger, alarm, or resentment." Rather than prosecuting the cross-burner for the content of his act, the city could have rightfully charged him under criminal trespass or harassment laws.

The Supreme Court has ruled that symbolic expression — whether swastikas, burning crosses, or peace signs — is protected by the First Amendment because it is "closely akin to 'pure speech.'" That phrase comes from a landmark 1969 decision in which the Court held that public school students could wear black armbands to protest the Vietnam War. In another landmark ruling in 1989, the Court upheld the right of an individual to burn the American flag in public as a symbolic expression of disagreement with government policies.