PREMIUM LEGAL RESOURCES
ASK A LAWYER
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
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 orientation.
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 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. 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 intolerance?
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
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
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
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 punishable
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
*** 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
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."
American Civil Liberties Union, 132 West 43rd Street, New York, N.Y.
Brought to you by - The 'Lectric Law Library
The Net's Finest Legal Resource For Legal Pros & Laypeople Alike.