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 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.

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Questions

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Q: I just can't understand why the ACLU defends free speech for

racists, sexists, homophobes and other bigots. Why tolerate the

promotion of intolerance?

A: 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."

Q: I have the impression that the ACLU spends more time and money

defending the rights of bigots than supporting the victims of

bigotry!!??

A: 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.

Q: Aren't some kinds of communication not protected under the

First Amendment, like "fighting words?"

A: 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.

Q: What about nonverbal symbols, like swastikas and burning

crosses -- are they constitutionally protected?

A: 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.

Q: Aren't speech codes on college campuses an effective way to

combat bias against people of color, women and gays?

A: 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."

Q: But don't speech codes send a strong message to campus bigots,

telling them their views are unacceptable?

A: 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.

Q: Does the ACLU make a distinction between speech and conduct?

A: 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

punishable acts.

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.

Q: 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?

A: 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 discriminatory harassment;

* 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."