Analyzing the Validity of Constitutionally Protected Hate Speech

One of our society’s most privileged pastimes involves the outstanding and relentless defense of the Constitution as the founding principles of this nation, unwavering in its authority, and righteous in its demand for justice for all. Justice, however, is capable of taking on many different forms. The First Amendment of the Constitution deals primarily with protecting free expression, asserting that “Congress shall make no law… abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble” but these protections offer little nuance when discussing more radicalized forms of hate speech. Historical precedent clearly shows the institutionalized protections on hate speech, from Supreme Court affirmations on public displays of burning crosses in Virginia v. Black as well as R.A.V. v. City of St. Paul, claiming that the First Amendment “prevents government from punishing speech and expressive conduct because it disapproves of the ideas expressed.” The law of the land consistently takes priority over preventative measures against the development of a hostile social environment, one in which hate speech is able to embolden its base of listeners towards stronger inclinations of division and intolerance.

This ongoing debate regarding the boundaries of free speech manifests itself within institutions of higher education, particularly American universities that grapple with ensuring free and open civil dialogue alongside cultural tolerance and inclusivity. First Amendment protection often conflict with University mission statements that claim to uphold diversity as a core value, as hate speech excludes and further marginalizes communities based on discriminatory biases. Hate speech takes on many forms, from verbal slurs and edgy jokes toeing the boundaries of racism, to the defacement of property and utilizing symbols such as swastikas or Confederate flags to convey a message of intimidation towards the groups that have historically been targeted by those symbolized movements. Victims of hate speech experience a trauma that extends long after the time of the incident, as William Kaplin writes in Racial Harassment on Campus, “feelings of vulnerability, insecurity, and alienation that repeated incidents of hate speech engender in the victimized groups may undermine the conditions necessary to constructive dialogue on campus” (519). Dealing specifically with college campuses, however, the Supreme Court has declared academic communities to be “special environments” that highlight the nuance of total freedoms of expression, that “although First Amendment principles do apply with full force to the campus, their application may be affected by the unique interests of academic communities” (Kaplin 521).

We can look to precedent established by lower court cases on campus hate speech, such as Doe v. University of Michigan which declared that a campus policy prohibiting discriminatory speech and harassment violated constitutional rights to free speech, with a similar case replicated in UWM Post v. Board of Regents, and even going so far as to protect fraternity members dressing in racially charged drag costumes in Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University. These cases divulge the larger question at hand in this paper, leading us to a thesis that challenges the status quo of institutionalized freedoms on university grounds. Allowing hate speech to develop and spread in public discourse directly contradicts the cultural values that Universities implement to foster a safe space for the expression of ideas. The intellectual realms of freedom of speech and diversity of thought disproportionately impact communities of color with cultural histories steeped in discrimination and prejudice.

The lessons we learn from legal precedent fall firmly on the line of established jurisprudence without much room for flexibility amidst a rapidly evolving political climate. There is often little to no discussion on the ramifications that these acts of intolerance and prejudice have on the very communities that they target. Any potential consideration for the safety or security of these marginalized communities is outweighed by a blind commitment to First Amendment rights that contribute to the creation of a hostile environment on campus. Universities will not make exceptions for limiting freedoms of speech, which then invalidates any claim made in mission statements to preserve the importance of diversity and equity. There cannot exist a genuine dedication to reforming institutionalized bias and discrimination affecting marginalized student experiences without acknowledging the detrimental impacts of boundless freedoms of speech on these communities. Freedoms of speech ultimately protect a superior class’ right to discriminate, intimidate, and provoke hateful behavior, all while influencing receptive observers to embrace intolerance out of a fear of persecution by liberal agendas of University academia.

On the other hand, critics of diversity measures claim that Universities should not be held accountable for protecting the fragility of student communities that argue against opposing viewpoints, invalidating a “diversity of thought” to emerge on campus. While this argument may sound legitimate at first, it is important to contextualize the emphasis on diversity of thought as a mask for supremacist ideals to rise to prominence once again in the history of American discourse. It is dangerous to claim that political correctness is responsible for the victimization of conservative ideals, that measures towards cultural competency contradict intellectual diversity, or that such conservative notions can even be considered a protected minority class, as critical race theorist Michael Harriot elaborates:

“It is a pseudo-cerebral catchphrase for maintaining the same white power structure that has always existed. Mediocre white men run the world, and the only way they can keep doing so is to concoct a fictional alternate universe where they are the oppressed class. In their contrived version of reality, they’re discriminated against—not because they are unqualified propagandists who either misunderstand or misconstrue the facts, but because they are victims of the liberal agenda. They don’t view their racism, sexism and homophobia as wrong because they “diversify thought” by playing the role of an intellectual devil’s advocate.”

Harriot’s critique highlights the motivations of white men in positions of power, historically the most severe perpetrators of bias and discrimination, and how these motivations can project themselves within the bubble of campus life. It is a difficult discussion to facilitate, given the clash of interests between cemented legal precedent on protections of speech and the influence of fluid campus policies that appeal to broad, often abstract conceptions of diversity and equity. We as a society may never conclude this debate with a satisfactory answer that would prove effective enough in addressing every facet of the conversation surrounding the extent of freedom of speech protections at the expense of minority communities on college campuses.

However, it is important now more than ever for students on every college campus to seriously reflect on the guiding principles of their institutions, and decide whether or not collective action and advocacy is required to bring to light such issues of prejudiced campus policies in hopes of reform. Should First Amendment rights continue to be extended towards students that wish to perpetrate discriminatory rhetoric and behaviors into campus discourse? Despite the fact that hate speech may be perceived as being restricted to verbal epithets and provocative dialogue, there is no denying the vast influence of such dialogue in radicalizing a base that is predisposed to notions of conservatism and white supremacy. When given a venue for right-wing extremism to foster and be accepted into the collective discourse, we legitimize the pining of the forgotten white male, dripping in all his various societal privileges, and we further legitimize his antagonism towards minority communities that he sees as having attacked his historically superior authority over the world and all its resources.

When we validate the argument for a diversity of thought, therein lies the potential for serious, dangerous repercussions to arise. As it stands, diversity of thought often goes unchallenged by the neo-liberal consensus that supports a vibrant discussion of differing perspectives, one that respects each side choosing to engage in a rational debate that ultimately serves to uncover the underlying truths and issues of any situation. Some groups and ideologues should not be extended that same level of protection and civility. Groups that don’t have any meaningful contributions to the intellectual sphere of thought, Nazi Party remnants for example, should not be freely welcomed into that space solely to spout hateful rhetoric and incite violence against classes of people. Academic freedoms allow professors to clearly judge the merit of ideas presented in assignments, constrained within a particular field of study, as there exists a mutual set of expectations for the caliber of the work performed in such an academic environment. The same should ring true for freedoms of speech, where the content of student speech may be judged on the basis of its intention to discriminate, intimidate, or threaten against any particular subset of groups vulnerable to the hostility of Constitutional protections. We would be remiss if we did not also note the influence of our nation’s violent foundations of indigenous genocide as well as the founding fathers’ intended primary beneficiaries of Constitutional protections at the time of its conception: white male landowners.

The evolution of such hate speech manifests itself into larger public demonstrations where just one spark can set off a powder keg of energy, prompting acts of racially motivated violence to occur and threaten the safety and well-being of individuals. Last summer, a white supremacist rally organized by far-right group Unite the Right in Charlottesville, Virginia quickly devolved into a deadly battle involving many physical altercations and a driver who rode directly into a crowd of counter-demonstrators. The President of the United States, instead of offering words of solace and condemning the violent hate crimes at Charlottesville that day, chose to spread the blame to both sides, further humanizing the white supremacists that came to protest the removal of Confederate statues as “very fine people”. To remain neutral in such instances of oppression and wide-scale injustice is to take the side of the oppressor. When a University administrator does not actively condemn the early roots of supremacist ideals through hate speech, then they endanger the lives of marginalized students on campus that do not have in their possession any form of institutionalized protections. When the University of Southern California’s Provost Quick releases a memorandum that protects the freedom of speech of a known white supremacist student who was involved in the Charlottesville riots, the entire administration participates in the invalidation of minority students by stripping away any ounce of security or dignity that once belonged to them under the guise of a campus commitment to diversity and equity.

Ultimately, the argument in favor of blanket protections for hate speech under the First Amendment is not justifiable nor is it responsible to uphold on college campuses that promise a space for its students to learn, grow, and thrive in every aspect. The promiscuity of unrestricted speech threatens an inclusive academic environment, placing a disproportionate target on marginalized communities that hate speech “silences both physically, through intimidation and threats of further harassment or actual violence, and spiritually, by demoralizing its victims” (Ma 703). There cannot exist an expectation for open and civil dialogue to occur when one side is empowered in their desire to exert superiority while the victims are further oppressed in a cyclic and harmful model that only serves to solidify 18th-century ideals in a 21st-century society while learning nothing from our national history rooted in violent discrimination and racial injustice.

Academic Sources
Gould, Jon B. “The Precedent That Wasn’t: College Hate Speech Codes and the Two Faces of Legal Compliance.” Law & Society Review, vol. 35, no. 2, 2001, pp. 345–392. JSTOR, JSTOR, www.jstor.org/stable/3185406.
Juhan, S. Cagle. “FREE SPEECH, HATE SPEECH, AND THE HOSTILE SPEECH ENVIRONMENT.” Virginia Law Review, vol. 98, no. 7, 2012, pp. 1577–1619. JSTOR, JSTOR, www.jstor.org/stable/23333530.
Kaplin, William A. “A Proposed Process for Managing the First Amendment Aspects of Campus Hate Speech.” The Journal of Higher Education, vol. 63, no. 5, 1992, pp. 517–538. JSTOR, JSTOR, www.jstor.org/stable/1982092.
Ma, Alice K. “Campus Hate Speech Codes: Affirmative Action in the Allocation of Speech Rights.” California Law Review, vol. 83, no. 2, 1995, pp. 693–732. JSTOR, JSTOR, www.jstor.org/stable/3480951.
Noorani, A. G. “Hate Speech and Free Speech.” Economic and Political Weekly, vol. 27, no. 46, 1992, pp. 2456–2456. JSTOR, JSTOR, www.jstor.org/stable/4399116.
Advertisements

4 Comments

  1. I agree with the sentiment that hate speech is not free speech, and that implying such, particularly on university campuses, only serves to perpetuate the toxic, divisive, and discriminatory rhetoric that is embedded in the history of many of these institutions already. I grew up in Massachusetts, where so-called ‘elite’ boarding school culture has its roots, and this issue is always hot-button there because of their notorious intolerance of non-white students in these settings. There used to be an app called Yik-Yak where kids would anonymously annihilate their peers, especially those that were from marginalized communities, and the school would do nothing because technically they were protected under the guise of ‘free speech’. Eventually, cyberbullying laws became enacted to prevent this app from wreaking more havoc, but this wasn’t until several kids across these boarding schools had already committed suicide or dropped out.
    I think the addition of cyberbullying laws to combat the equivalent of middle/high school ‘hate speech’ is pretty reminiscent of the change we need to see in institutions of higher education today. It is absolutely impossible to create universities, high schools, or institutions of any sort that are equally safe for every member of our community until we recognize the deep offense and trauma that certain discourse can bring to members of our student body. To not understand or sympathize with the notion that speech can be demonizing is a privilege in and of itself, and because most of the people making these decisions about regulating free speech on campuses don’t have an experience of being marginalized or targeted, they don’t understand the necessity for it. The argument that education will be affected if speech is regulated is a moot point–education is more severely affected when members of minority communities don’t feel safe on their own campus or voicing their ideas in classroom settings than it would be if we were to make small mandates on campus discourse to protect marginalized groups.

    Like

    Reply

  2. Diverging a bit from the examples explicitly laid out in your essay and focusing more on the Ben Shapiro situation; Do you think it is the job educational institutions to call out “free speech” that is not based in fact? I point to your mention of Ben Shapiro saying the perils of the Black community come from hip-hop culture. We know that that is false due to the country’s history of institutionalized racism. But is it USC’s role as a sponsor or the event and an educational institution to dispel false notions presented by Shapiro?
    In your piece when you said, “there cannot exist a genuine dedication to reforming institutionalized bias and discrimination affecting marginalized student experiences without acknowledging the detrimental impacts of boundless freedoms of speech on these communities.” I think the best way to reform this bias and discrimination you speak of is to actively break down the ideas presented by said groups.

    Like

    Reply

    1. I’d like to build further on the point you bring up, Ellice. Much of the argument against hate speech involves its spread of a narrative that works like a “powder keg”. To be fair, there is a certain level of emotion that words, especially words spoken aloud to a mass audience, tend to evoke that could escalate the physical reality of a situation. But to what extent should the solution be to curtail certain types of speech, given the gray area in which definitions of hate speech usually operate? The existence of various movements now regarded as more socially acceptable can be attributed to the policy of maintaining free speech – judgment of this content comes much easier with hindsight.

      I’m especially interested in your response as a diversity officer with USG. How effective would you consider literacy programs that seek to educate others on the interpretation of rhetoric in limiting conflict?

      Like

      Reply

  3. Diverging a bit from the examples explicitly laid out in your essay and focusing more on the Ben Shapiro situation; Do you think it is the job educational institutions to call out “free speech” that is not based in fact? I point to your mention of Ben Shapiro saying the perils of the Black community come from hip-hop culture. We know that that is false due to the country’s history of institutionalized racism. But is it USC’s role as a sponsor or the event and an educational institution to dispel false notions presented by Shapiro?
    In your piece when you said, “there cannot exist a genuine dedication to reforming institutionalized bias and discrimination affecting marginalized student experiences without acknowledging the detrimental impacts of boundless freedoms of speech on these communities,” I agree that we must address the impact that freedom of speech plays especially in the minds and lives of young, impressionable college students. I think educational communities play the biggest role in breaking down these biases. The best way to reform this bias and discrimination you speak of is to actively break down the ideas presented by said groups.

    Like

    Reply

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s