American Civil Liberties Union Briefing Paper Number 16
HATE SPEECH ON CAMPUS
In recent years, a rise in verbal abuse and violence directed at people of
color, lesbians and gay men, and other historically persecuted groups has
plagued the United States. Among the settings of these expressions of
intolerance are college and university campuses, where bias incidents have
occurred sporadically since the mid-1980s. Outrage, indignation and
demands for change have greeted such incidents -- understandably, given the
lack of racial and social diversity among students, faculty and
administrators on most campuses.
Many universities, under pressure to respond to the concerns of those who
are the objects of hate, have adopted codes or policies prohibiting speech
that offends any group based on race, gender, ethnicity, religion or sexual
That's the wrong response, well-meaning or not. The First Amendment to the
United States Constitution 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. And the ACLU believes that all campuses should adhere to
First Amendment principles because academic freedom is a bedrock of
education in a free society.
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.
Since its founding in 1920, the ACLU has fought for the free expression of
all ideas, popular or unpopular. That's the constitutional mandate.
Where racist, sexist and homophobic speech is concerned, the ACLU believes
that more speech -- not less -- is the best revenge. This is particularly
true at universities, whose mission is to facilitate learning through open
debate and study, and to enlighten. Speech codes are not the way to go on
campuses, where all views are entitled to be heard, explored, supported or
refuted. Besides, when hate is out in the open, people can see the
problem. Then they can organize effectively to counter bad attitudes,
possibly change them, and forge solidarity against the forces of
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. The ACLU believes that instead of opting for gestures that only
appear to cure the disease, universities have to do the hard work of
recruitment to increase faculty and student diversity; counseling to raise
awareness about bigotry and its history, and changing curricula to
institutionalize more inclusive approaches to all subject matter.
I just can't understand why the ACLU defends free speech for racists,
sexists, homophobes and other bigots. Why tolerate the promotion of
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 you. Conversely,
laws that defend free speech for bigots can be used to defend the rights of
civil rights workers, anti-war protesters, lesbian and gay activists and
others fighting for justice. For example, in the 1949 case of Terminiello
v. Chicago, the ACLU successfully defended an ex-Catholic priest who had
delivered a racist and anti-semitic speech. The precedent set in that case
became the basis for the ACLU's successful defense of civil rights
demonstrators in the 1960s and '70s.
The indivisibility principle was also illustrated in the case of Neo-Nazis
whose right to march in Skokie, Illinois in 1979 was successfully defended
by the ACLU. At the time, then ACLU Executive Director Aryeh Neier, whose
relatives died in Hitler's concentration camps during World War II,
commented: "Keeping a few Nazis off the streets of Skokie will serve Jews
poorly if it means that the freedoms to speak, publish or assemble any
place in the United States are thereby weakened."
I have the impression that the ACLU spends more time and money defending
the rights of bigots than supporting the victims of bigotry!!??
Not so. Only a handful of the several thousand cases litigated by the
national ACLU and its affiliates every year involves offensive speech.
Most of the litigation, advocacy and public education work we do preserves
or advances the constitutional rights of ordinary people. But it's
important to understand that the fraction of our work that does involve
people who've engaged in bigoted and hurtful speech is very important:
Defending First Amendment rights for the enemies of civil liberties and
civil rights means defending it for you and me.
Aren't some kinds of communication not protected under the First Amendment,
like "fighting words?"
The U.S. Supreme Court did rule in 1942, in a case called 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."
Say, a white student stops a black student on campus and utters a racial
slur. In that one-on-one confrontation, which could easily come to blows,
the offending student could be disciplined under the "fighting words"
doctrine for racial harassment.
Over the past 50 years, however, the Court hasn't found the "fighting
words" doctrine applicable in any of the hate speech cases that have come
before it, since the incidents involved didn't meet the narrow criteria
stated above. Ignoring that history, the folks who advocate campus speech
codes try to stretch the doctrine's application to fit words or symbols
that cause discomfort, offense or emotional pain.
What about nonverbal symbols, like swastikas and burning crosses -- are
they constitutionally protected?
Symbols of hate are constitutionally protected if they're 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 doesn't 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 dorm.
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 makes many people feel "anger,
alarm or resentment." Instead of prosecuting the cross-burner for the
content of his act, the city government could have rightfully tried him
under criminal trespass and/or harassment laws.
The Supreme Court has ruled that symbolic expression, whether swastikas,
burning crosses or, for that matter, peace signs, is protected by the First
Amendment because it's "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 in school to protest the Vietnam War.
And 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.
Aren't speech codes on college campuses an effective way to combat bias
against people of color, women and gays?
Historically, defamation laws or codes have proven ineffective at best and
counter-productive at worst. For one thing, depending on how they're
interpreted and enforced, they can actually work against the interests of
the people they were ostensibly created to protect. Why? Because the
ultimate power to decide what speech is offensive and to whom 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. But throughout its existence, the Act has
largely been used to persecute activists of color, trade unionists and
anti-nuclear protesters, while the racists -- often white members of
Parliament -- have gone unpunished.
Similarly, under a speech code in effect at the University of Michigan for
18 months, white students in 20 cases charged black students with offensive
speech. One of the cases 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 and, to date, the ACLU has
brought successful legal challenges against speech codes at the
Universities of Connecticut, Michigan and Wisconsin.
These examples demonstrate that speech codes don't 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."
But don't speech codes send a strong message to campus bigots, telling them
their views are unacceptable?
Bigoted speech is symptomatic of a huge problem in our country; it is not
the problem itself. Everybody, when they come to college, brings with them
the values, biases and assumptions they learned while growing up in
society, so it's unrealistic to think that punishing speech is going to rid
campuses of the attitudes that gave rise to the speech in the first place.
Banning bigoted speech won't end bigotry, even if it might chill some of
the crudest expressions. The mindset that produced the speech lives on and
may even reassert itself in more virulent forms.
Speech codes, by simply deterring students from saying out loud what they
will continue to think in private, merely drive biases underground where
they can't be addressed. In 1990, when Brown University expelled a student
for shouting racist epithets one night on the campus, the institution
accomplished nothing in the way of exposing the bankruptcy of racist ideas.
Does the ACLU make a distinction between speech and conduct?
Yes. The ACLU believes that hate speech stops being just speech and
becomes conduct when it targets a particular individual, and when it forms
a pattern of behavior that interferes with a student's ability to exercise
his or her right to participate fully in the life of the university.
The ACLU isn't opposed to regulations that penalize acts of violence,
harassment or intimidation, and invasions of privacy. On the contrary, we
believe that kind of conduct should be punished. Furthermore, the ACLU
recognizes that the mere presence of speech as one element in an act of
violence, harassment, intimidation or privacy invasion doesn't immunize
that act from punishment. For example, threatening, bias-inspired phone
calls to a student's dorm room, or white students shouting racist epithets
at a woman of color as they follow her across campus -- these are clearly
Several universities have initiated policies that both support free speech
and counter discriminatory conduct. Arizona State, for example, formed a
"Campus Environment Team" that acts as an education, information and
referral service. The team of specially trained faculty, students and
administrators works to foster an environment in which discriminatory
harassment is less likely to occur, while also safeguarding academic
freedom and freedom of speech.
Well, given that speech codes are a threat to the First Amendment, and
given the importance of equal opportunity in education, what type of campus
policy on hate speech would the ACLU support?
The ACLU believes that the best way to combat hate speech on campus is
through an educational approach that includes counter-speech, workshops on
bigotry and its role in American and world history, and real -- not
superficial -- institutional change.
Universities are obligated to create an environment that fosters tolerance
and mutual respect among members of the campus community, an environment in
which all students can exercise their right to participate fully in campus
life without being discriminated against. Campus administrators on the
highest level should, therefore,
- speak out loudly and clearly against expressions of racist, sexist,
homophobic and other bias, and react promptly and firmly to acts of
- create forums and workshops to raise awareness and promote dialogue on
issues of race, sex and sexual orientation;
- intensify their efforts to recruit members of racial minorities on
student, faculty and administrative levels;
- and reform their institutions' curricula to reflect the diversity of
peoples and cultures that have contributed to human knowledge and society,
in the United States and throughout the world.
ACLU Executive Director Ira Glasser stated, in a speech at the City College
of New York: "There is no clash between the constitutional right of free
speech and equality. Both are crucial to society. Universities ought to
stop restricting speech and start teaching."
A C L U
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