In the wake of three recent decisions, one by the U.S. Supreme Court dealing with punishment for hate crimes (Wisconsin v. Mitchell), two by the Canadian Supreme Court upholding limitations on hate speech and pornography (Regina v. Keegstra and Regina v. Butler), and a fourth by the U.S. Supreme Court permitting punishment for cross burning (Virginia v. Black), interest in campus anti-racism measures has revived. In the late 1980s, a number of U.S. campuses had responded to a wave of racist incidents by enacting student conduct codes forbidding certain types of racist expression. Then, federal courts struck down codes that were in effect at two midwestern universities. And a short time later, the Supreme Court invalidated a Saint Paul, Minnesota, hate-speech ordinance under which a white youth had been convicted of burning a cross on the lawn of a black neighbor (R.A.V. v. St. Paul). Many institutions that had been considering hate-speech rules put them on hold.
But the more recent decision upholding enhanced sentences for defendants convicted of racially motivated crimes, coupled with the above-mentioned Supreme Court decision approving punishment for cross burning, together with recent scholarship on tort-based solutions, has spurred renewed interest in hate-speech regulation. Today, many authorities believe that properly drafted prohibitions could now be put in place. But will they be?
Not without a fight. No longer certain that wooden, mechanistic First Amendment jurisprudence will hold sway, opponents of hate-speech rules are beginning to argue that even if they could be put in place, they should not be. In short, good policy argues against it. This chapter addresses one form that resistance takes, namely the deployment of paternalistic objections to regulatory responses. In this approach, opponents of hate-speech rules simply announce that equality and freedom are really not opposed. If minorities truly understood their situation, they would not be clamoring for hate-speech rules, but would instead embrace the civil libertarian/free-speech position. Often these objections issue from the moderate left, sometimes from libertarians. Many of them are paternalistic in nature, reasoning that the best interest of minorities, properly understood, militates against protecting them from hate speech.
Our decision to focus on these objections is sparked by more than mere theoretical interest. Respected writers and commentators, including the former national president of the ACLU, make such arguments. Audiences listen and nod agreement. Unless challenged, these arguments may have more effect than they deserve.
In order to understand the interplay of arguments raging in the hate-speech debate, it is necessary briefly to review the development of anti-racism rules. That history has both social and legal aspects. Beginning some time ago, many campuses began noticing a sharp rise in the number of incidents of hate-ridden speech directed at minorities, gays, lesbians, and others. Experts have been divided on the causes of the upsurge. A few argue that the increase is the result of better reporting or heightened sensitivity on the part of the minority community. Most, however, believe that the changes are real, noting that they are consistent with a sharp rise in attacks on foreigners, immigrants, and ethnic minorities occurring in many Western industrialized nations. This general rise, in turn, may be prompted by deteriorating economies and increased competition for jobs. It may reflect an increase in populations of color, due to immigration patterns and high birthrates. It may be related to the ending of the Cold War and competition between the two superpowers.
Whatever its cause, campus racism is of great concern to many educators and university officials. At the University of Wisconsin, for example, the number of black students dropped sharply in the wake of highly publicized incidents of racism. Faced with negative publicity and declining minority enrollments, some campuses established programs aimed at racial awareness. Others broadened their curriculum to include more multicultural offerings, events, and theme houses. Still others enacted hate-speech codes that prohibit slurs and disparaging remarks directed against persons on account of their ethnicity, religion, or sexual orientation. Sometimes these codes are patterned after existing torts or the fighting-words exception to the First Amendment. One at the University of Texas, for example, bars personalized insults that are severe enough to create a hostile environment that interferes with the ability to work or study on campus. Another, at the University of California, prohibits words or contacts that incite violence or prejudicial action based on any of a number of characteristics.
It was not long until these codes began to be challenged in court. In Doe v. University of Michigan, the university unsuccessfully defended a student conduct code that prohibited verbal or physical behavior that “stigmatizes or victimizes” any individual on the basis of various immutable and cultural characteristics, and that “[c]reates an intimidating, hostile or demeaning environment.” Citing Supreme Court precedent that requires speech regulations to be clear and precise, the district court found Michigan’s code fatally vague and overbroad. Two years later, in UWM Post, Inc. v. Board of Regents, a different federal court considered a University of Wisconsin rule that prohibited disruptive epithets directed against an in1dividual because of his or her race, religion, or sexual orientation. The court invalidated the rule, finding the measure overly broad and ambiguous. The court refused to apply a balancing test that would weigh the social value of the speech against its harmful effect, and found the rule’s similarity to Title VII workplace doctrine insufficient to satisfy constitutional requirements.
More recent decisions, however, have supported the efforts of authorities to take action against racist conduct. In Wisconsin v. Mitchell, a black man was convicted of aggravated battery for severely beating a white youth. Because the defendant selected the victim for his race, the defendant’s sentence was increased by an additional two years under a Wisconsin penalty-enhancement statute. The U.S. Supreme Court affirmed, holding that motive, and more specifically racial hatred, can be considered in determining the sentence of a convicted defendant. The Court explained that while “abstract beliefs, however obnoxious” are protected under the First Amendment, they are not protected once those beliefs express themselves in commission of a crime.
In Canada, two recent decisions also upheld the power of the state to prohibit certain types of offensive expression when they cause societal harm. In Regina v. Keegstra, a teacher had described Jews in disparaging terms to his pupils and declared that the Holocaust did not take place. The Supreme Court of Canada upheld the national criminal code provision under which the defendant was charged. The court emphasized that this type of hate speech harms its victims and society as a whole, sufficiently so to justify criminalizing it. In Regina v. Butler, the Supreme Court of Canada reversed a trial court dismissal of criminal pornography charges, based on the social harm caused by the speech and the minimal impairment of legitimate speech that the prohibition presented. Both decisions are notable because Canada’s legal and free-speech traditions are similar to those of the United States, and because the Canadian Charter protects speech in terms similar to those of its U.S. counterpart.
The recent scholarly interest in torts-based approaches provides a final development suggesting the feasibility of regulating hate speech. Several scholars advocate regulating hate speech through the torts of intentional infliction of emotional distress or group defamation (see chapter 1). These scholars observe that the law of tort can supply models for harm-based codes that would pass constitutional muster. They emphasize that tort law’s historic role in redressing personal wrongs, its neutrality, and its relative freedom from constitutional restraints are powerful advantages for rules aimed at curbing hate speech.
At present, then, case law and scholarly commentary, although divided, suggest that carefully drafted hate-speech restrictions may comply with the First Amendment. The future thus seems to lie in the hands of policymakers.
Because of the seeming feasibility of drafting constitutional hate-speech regulations, the debate over such rules has shifted to the policy arena. Four arguments made by opponents of anti-racism rules are central to this debate:
Each of these arguments is paternalistic, invoking the interest of the group seeking protection. Each is seriously flawed; indeed, the situation is often the opposite of what its proponents understand it to be. Racist speech, far from serving as a pressure valve, deepens minorities’ predicament. Moreover, except in authoritarian countries like South Africa, authorities generally do not apply anti-racism rules against minorities. Free speech has not always proven a trusty friend of racial reformers. Finally, talking back is rarely a realistic possibility for the victim of hate speech.
The pressure valve argument holds that rules prohibiting hate speech are unwise because they increase the danger racism poses to minorities. Forcing racists to bottle up their dislike of people of color means that they will be more likely to say or do something even more hurtful later. Free speech thus functions as a pressure valve, allowing tension to dissipate before it reaches a dangerous level. Pressure valve proponents argue that if minorities understood this, they would oppose anti-racism rules.
The argument is paternalistic; it says we are denying you what you say you want, and for your own good. The rules, which you think will help you, will really make matters worse. If you knew this, you would join us in opposing them.
But is this really so? Hate speech may make the speaker feel better, at least temporarily, but it does not make the victim safer. Quite the contrary, psychological evidence suggests that permitting one person to say or do hateful things to another increases, rather than decreases, the chance that he or she will do so again. Moreover, others may believe it is permissible to follow suit. Human beings are not mechanical objects. Our behavior is more complex than the laws of physics that describe pressure valves, tanks, and the behavior of a gas or liquid in a tube. In particular, we use symbols to construct our social world, a world that contains categories and expectations for “black,” “woman,” “child,” “immigrant,” “criminal,” “wartime enemy,” and so on. Once the roles we create for these categories are in place, they govern the way we speak of and act toward members of those categories in the future.
Even simple barnyard animals act on the basis of categories. Poultry farmers know that a chicken with a single speck of blood may be pecked to death by the others. With chickens, of course, the categories are neural and innate, functioning at a level more basic than language. But social science experiments demonstrate that the way we categorize others affects our treatment of them. An Iowa teacher’s famous “blue eyes / brown eyes” experiment showed that even a one-day assignment of stigma can change behavior and school performance. At Stanford University, Philip Zimbardo assigned students to play the roles of prisoner and prison guard, but was forced to discontinue the experiment when some of the participants began taking their roles too seriously. At Yale University, Stanley Milgram showed that many members of a university community could be made to violate their conscience if an authority figure invited them to do so and assured them this was permissible and safe.
The evidence, then, suggests that allowing persons to stigmatize or revile others makes them more aggressive, not less. Once the speaker forms the category of deserved victim, his or her behavior may continue and escalate to bullying and physical violence. Further, the studies demonstrate that stereotypical treatment tends to generalize—what we do teaches others that they may do likewise. Pressure valves may be safer after letting off steam; human beings are not.
Others argue that enactment of hate-speech rules is sure to hurt minorities because the new rules will be applied against minorities themselves. A vicious insult hurled by a white person to a black will go unpunished, but even a mild expression of exasperation by a black motorist to a police officer or by a Latino student to a professor, for example, will bring harsh retribution. The argument is plausible because certain authorities are indeed racist and dislike minorities who speak out of turn, and because a few incidents of people of color charged with hate speech for innocuous behavior have occurred. The former president of the ACLU, for example, asserts that in Canada, shortly after the Supreme Court upheld a federal hate-speech code, prosecutors began charging blacks with hate offenses.
But the empirical evidence does not suggest that this is common, much less the rule. Police and FBI reports show that hate crimes are committed much more frequently by whites against blacks than the reverse. Statistics compiled by the National Institute Against Violence and Prejudice confirm what the police reports show, that a large number of minorities are victimized by racist acts on campus each year. Moreover, the distribution of enforcement seems to be consistent with commission of the offense. Although an occasional minority group member may be charged with a hate crime or with violating a campus hate-speech code, these prosecutions seem rare.
Racism, of course, is not a one-way street; some minorities have harassed and badgered whites. And a study showed that in repressive societies, such as South Africa and the former Soviet Union, laws against hate speech have indeed been deployed to stifle dissenters and members of minority groups. Yet this has not happened in more progressive countries. The likelihood that officials in the United States would turn hate-speech laws into weapons against minorities thus seems remote.
Many absolutists urge that the First Amendment historically has been a great friend and ally of social reformers. They point out that without free speech, Martin Luther King Jr. could not have moved the American public as he did. Other reform movements also are said to have relied heavily on free speech. This argument, like the two earlier ones, is paternalistic. It is based on the supposed best interest of minorities; if they understood that interest, the argument goes, they would not demand regulations to bridle speech.
This approach ignores the history of the relationship between racial minorities and the First Amendment. In fact, minorities have made the greatest progress when they acted in defiance of the First Amendment. The original Constitution protected slavery in several of its provisions, and the First Amendment existed contemporaneously with slavery for nearly one hundred years. Free speech for slaves, women, and the propertyless was simply not a major concern for the drafters, who appear to have conceived the First Amendment mainly as protection for the kind of refined political, scientific, and artistic discourse they and their class enjoyed.
Later, of course, abolitionism and civil rights activism broke out. But examining the role of speech in reform movements shows that the relationship of the First Amendment to social advance is not so simple as some believe. In the civil rights movement of the 1960s, for example, Martin Luther King Jr. and others did use speeches and other symbolic acts to kindle America’s conscience. But as often as not, they found the First Amendment did not protect them from arrest and conviction. Their speech was seen as too forceful, too disruptive. To be sure, their convictions would sometimes be reversed on appeal many years later. But the First Amendment, as then understood, served more as an obstacle than a friend.
An examination of the current landscape of First Amendment exceptions to protecting free speech bears out this observation. Our legal system has carved out or tolerated dozens of “exceptions” to the free-speech principle: conspiracy; libel; copyright; plagiarism; official secrets; misleading advertising; words of threat; disrespectful words uttered to a judge, teacher, or other authority figure; and many more. These exceptions—each responding to some interest of a powerful group—seem familiar and acceptable, as indeed perhaps they are. But a proposal for a new exception to protect eighteen-year-old black undergraduates immediately produces consternation: the First Amendment must be a seamless web.
It is we, however, who are caught in a web, the web of the familiar. The First Amendment seems to us useful and valuable. It reflects our interests and sense of the world. It allows us to make certain distinctions, tolerates certain exceptions, and functions in a particular way we assume will be equally valuable for others. But the history of the First Amendment, as well as the current landscape of doctrinal exceptions, shows that it is far more valuable to the majority than to the minority, more useful for confining change than for propelling it.
Defenders of the First Amendment sometimes argue that minorities should learn to talk back to the aggressor. One prominent civil libertarian, for example, writes that conduct codes teach minorities to depend on whites for protection, while talking back clears the air, emphasizes self-reliance, and strengthens one’s self-image as an active agent in charge of one’s own destiny. The “talking back” approach draws force from the First Amendment more-speech principle according to which additional dialogue is always a preferred response to speech that is problematic for some reason. Some believe that it is good for minorities to learn to speak on their own behalf. Moreover, a minority who speaks out may be able to educate the speaker who has uttered a racially hurtful remark. Racism, at least in some cases, results from ignorance or fear. If a victim of racist hate speech takes the time to explain matters, he or she may alter the speaker’s perception so that she will act more appropriately in the future.
How valid is this argument? Like many paternalistic arguments, it is offered without evidence, virtually as an article of faith. In the nature of paternalism, those who make the argument are in a position of authority, and therefore believe themselves able to make things so merely by asserting them. The social world is as they assert because it is their world: they created it that way.
In reality, those who hurl racial epithets do so because they feel they can get away with doing it. Often, their principal objective is to reassert and reinscribe that power. One who talks back is perceived as issuing a direct challenge to that power. The action is seen as outrageous, calling for a forceful response. Often racist remarks are delivered in several-on-one situations, in which responding in kind is foolhardy. Indeed, many cases of racial homicide began in just this fashion. A group began badgering a black person. The person talked back, and paid with his life. Other racist remarks are delivered in a cowardly fashion, by means of graffiti scrawled on a campus wall late at night or on a poster placed outside of a black student’s dormitory door. In these situations, more speech, of course, is impossible.
Racist speech is rarely a mistake, something that could be corrected or countered by discussion. After all, what would be the answer to “Nigger, go back to Africa. You don’t belong at the university”? “Sir, you misconceive the situation. Prevailing ethics and constitutional interpretation hold that I, an African American, am an individual of equal dignity and entitled to attend this university in the same manner as others. Now that I have informed you of this, I am sure you will modify your remarks in the future”?
The idea that talking back is safe for the victim or educative for the racist simply does not correspond with reality. It ignores the power dimension to racist remarks, forces minorities to run very real risks, and treats a hateful attempt to force the victim outside the human community as an invitation for discussion. Even when successful, talking back is a burden. Why should minority undergraduates, already charged with their own education, be responsible for educating others?
In the wake of recent court decisions, the task of drafting such rules is technically quite feasible. Consider two simple ways this could happen. Campus rules could be drafted either to prohibit expressions of racial hatred and contempt directly through a two-step approach, or to regulate behavior currently actionable in tort. In either case, the rules must be neutral and apply across the board, that is, must not single out particular forms of hateful speech for punishment while leaving others untouched. Moreover, any campus considering enacting such rules should be certain to compile adequate evidence of their necessity.
The direct approach would couple two provisions. The first would prohibit face-to-face invective calculated seriously to disrupt the victim’s ability to function in a campus setting. This provision, which must be race-neutral, could be tailored to capture the content of any recognized First Amendment exception, such as fighting words or workplace harassment. Because of the university’s special role and responsibility for the safety and morale of students, even the precaution of working within a recognized exception might not be necessary.
A second provision would provide enhanced punishment for any campus offense (including the one just described) which was proven to have been committed with a racial motivation. Such a two-step approach would satisfy all current constitutional requirements. It would promote a compelling and legitimate institutional interest. It would not single out particular types of expression, but rather particular types of motivation at the punishment stage. And it would not abridge rules against content or viewpoint neutrality, since it focuses not on the speaker’s message but on its intended effect on the hearer, namely to impair his or her ability to function on campus.
Alternatively, a hate-speech rule could be patterned after an existing tort, such as intentional infliction of emotional distress or group libel, with the race of the victim a “special factor” calling for increased protection, as current rules and the Restatement of Torts (a recognized guidepost) already provide. Tort law’s neutrality and presumptive constitutionality strongly suggest that such an approach would be valid. Harm-based rationales for punishing hate speech should be valid whenever the social injury from the speech outweighs its benefits.
The strongest reason for enacting hate-speech rules on campuses with a history of disruption is that they are necessary to promote equality. But even putting this aside and viewing the question purely through the free-speech lens, the policy concerns underlying our system of free expression are largely absent with hate speech. Targeted racist vitriol scarcely advances self-government or the search for consensus. It does not promote the search for truth, nor help the speaker reach self-actualization, at least in any ideal sense. Racist speech thus does little to advance any of the theoretical rationales scholars and judges have advanced as reasons for protecting speech.
Looking at the hate-speech problem from the perspective of enforcement yields no greater support for scathing speech. Our system distrusts any form of official speech regulation because we fear that the government will use the power to insulate itself from criticism. This danger is absent, however, when the government sets out to regulate speech between private speakers, especially about subjects falling outside the realm of politics. When the government intervenes to tell one class of speakers to avoid saying hurtful things to another, governmental aggrandizement is at best a remote concern. This is the reason why regulation of private speech—libel, copyright, plagiarism, deceptive advertising, and so on—rarely presents serious constitutional problems. The same should be true of hate speech.
Another political process concern is also absent. Our legal system resists speech regulation in part because of concern over selective regulation or enforcement. If the state received the power to declare particular speakers disfavored, it could effectively exclude them from public discourse. We would forfeit the benefit of their ideas, while they would lose access to an important means for advancing their own interest. But none of these dangers is present with hate speech. Allowing the government to create a special offense for a class of persons (even racists) is indeed troublesome, as the Supreme Court recognized in the first cross-burning case (R.A.V. v. St. Paul). But the direct approach we have outlined introduces the racial element only at the sentencing stage, where the dangers and political-process concerns of selective treatment are greatly reduced. The same would be true if the tort approach were adopted. In tort law, it is the intent and injury that matter, not the content of the speech. Enforcement comes from private initiative, not state action. Prevention of harm is the goal, with no speech disfavored as such. But will it happen?
In light of recent cases, there is little reason today in First Amendment jurisprudence for leaving campus hate speech unregulated. Censorship and governmental nest feathering are not serious problems when authorities seek to regulate speech between private citizens. Nor does racial vilification promote any of the theoretical rationales for protecting free speech. Far from acting as a pressure valve that enables rage to dissipate harmlessly, epithets make matters worse. Pernicious images create a world in which some come to see others as proper victims. Like farmyard chickens with a speck of blood, they may be reviled, mistreated, denied jobs, slighted, spoken of derisively, even beaten at will.
The Greeks used the term hubris to describe the sin of believing that one may “treat[ ] other people just as one pleases, with the arrogant confidence that one will escape any penalty for violating their rights.” Those who tell ethnic jokes and hurl racial epithets are guilty of this kind of arrogance. But some who defend these practices, including First Amendment purists, are guilty of it as well. Insisting on free speech over all, as though no countervailing interests were at stake, and putting forward transparently paternalistic justifications for a regime in which hate speech flows freely is also hubristic.
Some words, we have argued, have little purpose other than to subordinate, injure, and wound. Tinged with more than a little hubris, the liberals’ paternalistic arguments do not hold. What about those of the conservatives?