Hate Speech on College Campuses

Introduction to the Panel

• The panel is discussing the difficulties of responding to hate speech on college and university campuses.
• The panel consists of legal experts, professors, and advocates for free speech.
• Wayne Batchest is the moderator, a professor of political science and director of the Legal Studies program at UD.

Panelists

• Rod Smola: Dean of the Widener Delaware Law School.
  • Former president of Furman University and Dean of Washington and Lee and University of Richmond law schools.
  • Author of books on freedom of speech.
  • Has argued First Amendment cases in state and federal courts.
  • Lead counsel in Virginia versus Black, a Supreme Court case challenging Virginia's cross-burning law.
  • Constitutional law advisor to the Virginia governor's task force investigating the events in Charlottesville.
• Samantha Harris: Attorney with the Foundation for Individual Rights in Education.
  • Advises on free speech and due process on campus for over 13 years.
  • Lectures on student rights at campuses and conferences.
  • Op-ed contributor and commentator on student rights issues.
• Keith Whittington: Professor of Political Science at Princeton University.
  • Author of "Speak Freely: Why Universities Must Defend Free Speech".
  • Completing two books: "Constitutional Crisis Crises Real and Imagined" and "The Idea of Democracy in America".
• Timothy Sheol: Professor of Philosophy and Director of the Center for the Study of Institutions and Innovation at the University of Wisconsin Stout.
  • Focuses on free speech and civil liberty.
  • Center funds events at 22 universities and colleges in Wisconsin.
  • Author of "Campus Hate Speech on Trial" and "African-Americans and the First Amendment (forthcoming)".

Complexity of Free Speech Law

• Free speech law is complex and multifaceted, not a single concept.
• Legal treatises on freedom of speech can be extensive, such as multiple volume works with thousands of pages.
• The doctrinal density of First Amendment law is comparable to tax law.

Two Competing Ideas of Free Speech

• American history's debate over free speech can be distilled to a contest between two ideas: the order and morality theory and the marketplace theory.

Order and Morality Theory

• Has been a part of American thinking for at least 200 years.
• Most famous moment came in the 1942 case Chaplinsky versus New Hampshire.
  • Walter Chaplinsky, a Jehovah's Witness, was arrested for upsetting people while preaching.
  • He insulted a police officer, leading to his arrest.
• Justice Frank Murphy articulated the theory: certain kinds of speech has never been protected.
  • Examples include the profane and libelous.
  • Speech that results in immediate breach of peace or inflicts injury is not protected.
  • Such expressions are not a serious contribution to the exposition of ideas.
  • Any slight contribution to the discovery of truth is outweighed by society's interest in order and morality.

Beauharnais versus Illinois

• Involved a racist group distributing attacks on African Americans in Chicago.
• Illinois had a law making it a crime to disparage groups based on religion and race.
• Mister Beauharnais, the leader of the group, was convicted for distributing racist leaflets.
• The Supreme Court upheld his conviction stating that the leaflets were not protected by the First Amendment.
• Justice Felix Frankfurter alluded to the Holocaust and the potential for racist speech to cause societal degeneration.
• Racist speech eats at the fabric of society's values and undermines decency, inclusion, and equality.
• In 1952, at the time of Beauharnais versus Illinois, the order and morality theory was dominant.

The Rise of the Marketplace Theory

• The 1960s brought significant changes to constitutional law, including free speech.
• The marketplace theory, previously a less favored idea, gained prominence.
• Associated with justices Holmes and Brandeis.
• Justice Holmes in Abrams versus the United States: speech should be tolerated unless an immediate check is necessary to save the country.
• Justice Brandeis emphasized the dangers of submitting to fear and paranoia.
• Suppressing hateful speech can make it stronger

Free Speech & Supreme Court

• Supreme Court has issued a number of strong pro-free speech rulings in a series of cases spanning from the 1960s to the recent decade.
• New York Times v. Sullivan (1964) and Brandenburg v. Ohio (1969) are examples of pro-free speech cases from the 1960s.
• This contrasts with cases like Roe v. Wade and Brown v. Board of Education, which were singular, decisive rulings.
• The speaker's daughter, a Yale student, aligns more with Frank Murphy and Felix Frankfurter's views on order and morality regarding speech.
• Charlottesville events influenced a personal reexamination of free speech perspectives.

Campus Environment

• Bart Giamatti, former Commissioner of Baseball and Yale president, described the campus as a "free and ordered space."
• College campuses often struggle to balance being a "marketplace of ideas" with prioritizing inclusion, human dignity, and equality.
• The speaker's daughter debated Bob Horne Revere, a lawyer for FIRE (a free speech organization).

Hate Speech

• It is important to acknowledge and address the real dangers and harms associated with hate speech.
• The term "hate speech" is vague and encompasses a wide range of issues, some more easily regulated than others.
• True threats, incitement to lawless action, and harassment are examples of hate speech more amenable to regulation.
• Concerns arise when "hate speech" expands to include ideas that some find disturbing, potentially stifling important discourse.

Risks of Regulation

• Policies aimed at regulating hate speech can broaden over time, encompassing more speech than initially intended.
• Empowering individuals to identify and suppress hateful speech involves discretionary decisions that can be controversial.
• Decisions about regulating speech will likely be made in the context of disagreements about what speech is valuable vs. dangerous.
• Cautions against empowering individuals to make decisions about suppressing speech, as the power might be misused by those with differing values.

University Context

• Free speech rubric is awkward in the university context because it doesn't capture a lot of concerns relative to speech.
• Tensions exist between free speech and academic freedom within universities.
• Responses to hate speech should vary depending on the specific context within the campus (classroom, public square, dorm, dining hall).
• Expectations for student speech should differ across campus environments
• A single approach to addressing speech issues is unlikely to be appropriate across the entire campus.

Balancing Free Speech & Equality

• Universities have legal and ethical obligations to protect and promote both free speech and equality for historically disadvantaged groups.
• Courts tend to strike down campus speech policies and enforcement that go beyond standard existing categories of banned speech.
• Robust free speech requires a robust diversity of ideas.
• Conversely, Diversity of ideas requires strong protections for free speech

The Role of Free Speech

• Historically marginalized groups are most in need of free speech protections because they will suffer most from censorship.
• Free speech played a crucial role in advancing equality rights for the LGBTQ community.
• Future gains for the LGBTQ community depend on strong First Amendment protections.
• The speaker's forthcoming book will discuss African Americans and the First Amendment.

Practical Examples of Campus Speech Issues

• Incidents on campus often revolve around speech that some find subjectively offensive, beyond widely condemned hate speech.
• The concept of what is considered hateful or offensive is vague and subjective, lacking clear self-limiting principles.
• FIRE deals with a spectrum of censorship cases from nuanced situations rather than extreme incidents that are easy to agree restrict.
• A professor at Yale sparked controversy by asking students to discuss the appropriateness of universities supervising Halloween costumes.
• At the University of Georgia, a graduate student instructor was investigated for tweets critical of white people.
• Rutgers University initially punished a tenured professor for an anti-gentrification Facebook post before reversing the decision after FIRE intervened.
• An Augsburg University professor was suspended for using the n-word in discussing James Baldwin's work.
• Emory Law Professor Paul Zwier was suspended for using the n-word in discussing a civil rights case.
• The student newspaper at Texas State University faced backlash for publishing an editorial arguing that whiteness is an abomination.
• Syracuse University fraternity brothers were disciplined for a private satirical roast containing offensive jokes.

Private vs. Public Universities

• Private schools should be transparent about their values regarding speech.
• Private schools have the right to associate around shared values, including defining hate speech differently.
• Problems arise when private universities promise free speech but subjectively limit debate on certain topics.
• Universities are not stuck in time and can evolve on the conception of free speech.
• Transparency and openness are still important.
• Concerns about faculty and the evolution of university context.

The Speaker as Former President:

• Former president of Furman University (once religiously affiliated).
• When free speech controversies arise, he would state how it would turn out at state universities and then lead campus discussions about the college's own community standards.

The dangers of today

• The sophistication and slickness with which messages are spread.
• The ability to organize with the internet.
• Menace has evolved since the 1970s with hate group activity.

Editor in Chief asks panel:

• Social media posts tend to be more spontaneous and meet certain criteria of what generally qualifies as hate speech.
• Whereas an editorial is going to be promoted it's pre-meditated it's going to be fully argued generally, and ideally adhere to some of the ethical and professional constraints of journalism.
• Insofar as publications are meeting that criteria, could that even be considered hate speech still?

Student Question About N-Word:

• Student recalls discussion w/ Frederick Douglass autobiography.
• Argues n-word does not need to be used to convey themes from lessons to students.

Law Professor Jeff Stone

• Law professor at University of Chicago.
• Used n-word in illustrative purposes.
• As a result of recent conversations with students, he has decided he is no longer going to do that.

Question on the campus

• Discusses difficulty in dealing w/ polarizing speech on campus.
• Mentions stickers saying "okay to be white".
• Questions whether taking down the stickers can be a form of "no platforming".