Last updated on: 6/4/2008 1:22:00 PM PST
Do University Regulations Against Offensive Speech Often Inhibit Freedom of Expression?
The American Civil Liberties Union (ACLU) stated in its Dec. 31, 1994 paper "Hate Speech on Campus":
"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...
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."
Dec. 31, 1994 - American Civil Liberties Union (ACLU)
American Association of University Professors (AAUP) adopted a statement in Nov. 1994 titled "On Freedom of Expression and Campus Speech Codes," which stated:
"In response to verbal assaults and use of hateful language some campuses have felt it necessary to forbid the expression of racist, sexist, homophobic, or ethnically demeaning speech, along with conduct or behavior that harasses...
Rules that ban or punish speech based upon its content cannot be justified. An institution of higher learning fails to fulfill its mission if it asserts the power to proscribe ideas... Indeed, by proscribing any ideas, a university sets an example that profoundly disserves its academic mission...
A college or university sets a perilous course if it seeks to differentiate between high-value and low-value speech, or to choose which groups are to be protected by curbing the speech of others... [F]reedom of expression requires toleration of 'ideas we hate.'... It is the very precondition of the academic enterprise itself."
Nov. 1994 - American Association of University Professors (AAUP)
Kermit L. Hall, PhD, Former President of University at Albany, State University of New York, wrote in the "Overview of Free Speech on Public College Campuses," posted on the First Amendment Center website (accessed June 7, 2006):
"Speech codes... are the most controversial ways in which universities have attempted to strike a balance between expression and community order...
Courts have viewed [speech codes]... as failing on two important points. First, they have been deemed to be overly broad and vague, reaching groups and persons not appropriately covered by such codes... Second... the speech codes have been attacked successfully because they involve a regulation of either the content or viewpoint, not just its time, place and manner. While advocates of speech codes argued that they were essentially content neutral and protected by the fighting-words doctrine, federal judges found otherwise...
The debate over speech codes reminds us of the ongoing importance of free expression on campus and the often controversial nature of its practice. Universities above all other institutions must welcome a broad range of views and protect speech that has a strong viewpoint or content in its message... Efforts to restrict the viewpoint or message of anyone on a campus puts the institution at odds with its primary educational mission: to give students the opportunity to sort through opposing ideas."
June 7, 2006 - Kermit L. Hall, PhD
The Foundation For Individual Rights in Education (FIRE) stated in an article posted on its website, "About Speech Codes" (accessed June 7, 2006):
"Colleges and universities'... administrators create and enforce speech codes in an attempt to outlaw free speech and free expression that do not conform to various new campus orthodoxies. For example, in recent years... speech codes [have notably]... banned 'verbal behavior' that produces 'feelings of impotence, anger, or disenfranchisement,'... outlawed 'inconsiderate jokes,' 'stereotyping' and even 'inappropriately directed laughter...'
These codes... lead students to believe they have an absolute right to be free from offense, embarrassment, or discomfort. As a result, other students begin the compromise of self-censorship... If students on our nation's campuses learn that jokes, remarks, and visual displays that 'offend' someone may rightly be banned, they will not find it odd or dangerous when the government itself seeks to censor and to demand moral conformity in the expression of its citizens.
A nation that does not educate in freedom will not survive in freedom, and will not even know when it has lost it."
June 7, 2006 - Foundation For Individual Rights in Education (FIRE)
Paul Gottfried, PhD, Professor of Humanities at Elizabethtown College, and Richard Delgado, JD, Professor of Law at the University of Pittsburgh School of Law, wrote in their June 26, 1994 article for Insight on the News, "Do Prohibitions of Hate Speech Harm Public Discourse?":
"More than 200 American universities have.. enact[ed] student-conduct codes penalizing face-to-face insults and epithets... Are these measures a good idea? Emphatically, yes: Racist and similar taunts convey little of value. They demean the victim while communicating to all who hear the message that equal personhood is of little value in American society. Campuses and workplaces wherein a climate of racial or sexual terror thrives are unattractive and unwelcoming for members of the victimized groups...
A[n]... objection [to speech codes] is that prohibitions against verbal abuse and assault encourage minorities to see themselves as victims. Instead of running to campus authorities every time something wounds their feelings, persons of color ought to learn either to confront or ignore the offensive behavior... Will hate-speech rules have these effects? No, because other alternatives, such as talking back, will remain. No gay or minority student is required to file charges under the rules when targeted by abuse. The rules merely provide one more avenue of recourse for those who wish to take advantage of them. Filing a complaint might, indeed, be seen as one way of taking charge of one's destiny...
Hate-speech rules are wholly consistent with the spirit of free inquiry. Indeed, by demoralizing the victim and excluding him or her from the human community, hate speech reduces participation and dialogue. Far from diminishing the values of the First Amendment, hate-speech rules may be necessary for their full flowering and effectuation."
June 26, 1994 - Richard Delgado, JD
Paul Gottfried, PhD
Charles R. Lawrence III, JD, Professor of Law at Stanford University, in his chapter titled "If He Hollers Let Him Go: Regulating Racist Speech on Campus," published in the 1993 book Words That Wound: Critical Race Theory, Assaultive Speech, and the First Amendment, wrote:
"Requiring civility and respect in academic discourse encourage rather than discourage the fullest exchange of ideas. Regulations that require minimal civility of discourse in certain designated forums are not incursions on intellectual and political debate...
When racist speech takes the form of face-to-face insults, catcalls, or other assaultive speech aimed at an individual or a small group of persons, then it falls within the 'fighting words' exception to first amendment protection... A second factor that distinguishes racial insults from protected speech is... [that] words of response to such verbal attacks may never be forthcoming because speech is usually an inadequate response...
Blacks and other people of color are equally skeptical about the absolutist argument that even the most injurious speech must remain unregulated because in an unregulated marketplace of ideas the best ideas will rise to the top and gain acceptance. Our experience tells us the opposite."
1993 - Charles R. Lawrence, III, JD
Jae-Jin Lee, PhD, Former Director of the Department of Journalism and Mass Communication at Hanyang University, wrote in his 1997 article for Communications And The Law, titled "Understanding Hate Speech As a Communication Phenomenon: Another View On Campus Speech Code Issues":
"Proponents of speech codes... maintain that [racist and sexist] speech inevitably creates an intimidating, hostile, or demeaning environment for education and university-related work... Minority students are far more likely to feel overwhelmed by the numerical superiority of white students and realize that a violent response to fighting words will result in a risk to their own life and limb, they are forced to remain silent and submit...
The Supreme Court... without considering the [one-way] communication process of hate speech, extended [protection] to hate speech, adhering to the content neutral rules...
[I]t is becoming difficult for courts to resolve increasing hate-speech issues on campus with the content-neutral doctrine alone. Speech codes are not so destructive of academic freedom of speech as the courts noted, because most of them were made for the purpose of preventing speech that is not exchangeable and not protected as pure speech. In this sense, special exceptions for the content-neutral principle should be allowed on campus."
1997 - Jae-Jin Lee, PhD