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Volume 13, 2000.
An examination of relevant United States Supreme Court decisions indicates that freedom of expression is not absolutely free. The justices have restricted such forms of speech as obscenity, defamation, fighting words, incitement to criminal activity, and advertising. A recent public debate questioned whether "hate speech" should be added to the list of speech forms that warrant regulation. The court system rejected restrictive codes established by the University of Michigan, University of Wisconsin, and city of St. Paul, Minnesota. This article identifies reasons why the codes were declared unconstitutional and offers a rationale for formulating acceptable codes. The study concludes that a constitutional code must be framed from a narrow perspective in order to avoid flaws of overbreadth and content-based regulation.
Historical analysis of the United States Supreme Court's view of the First Amendment reveals that freedom of expression is not absolutely free. Various justices have applied limiting judicial tests to the right of expression. In Gitlow v. New York (1925), Justice Edward Sanford espoused the "bad tendency" test, a standard that conferred low priority to freedom of expression. According to Sanford, any expression that had a tendency to lead to substantial evil should be "nipped in the bud." Justice Oliver Wendell Holmes introduced the "clear and present danger" test, in Schenck v. United States (1919), noting that a government may punish expression "that produces or is intending to produce a clear and imminent danger that it will bring about forthwith certain substantive evils." Holmes cited a classic example: "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic." The "balancing" test, fashioned by Justice Fred Vinson in American Communications Association, C.I.O. v. Douds (1950), recognizes that when other rights conflict with the right to free expression--for example, the right to a fair trial, right to privacy, right to peace and order--the competing rights should be balanced to determine which has priority. Another standard, the "preferred position" test, places expression in a position of prominence but acknowledges that free speech is not absolutely free. In Kovacs v. Cooper (1949), Justice Stanley Reed noted:
The preferred position of freedom of speech in a society that cherishes liberty for all does not require legislators to be insensible to claims by citizens to comfort and convenience. To enforce freedom of speech in disregard of the rights of others would be harsh and arbitrary in itself.
The opinions of Justices Sanford, Holmes, Vinson, and Reed recognize that while individuals are entitled to the right of free expression, failure to use that right responsibly may lead to restriction of the freedom to communicate.
In addition, Supreme Court decisions have identified specific forms of expression that are subject to regulation. In Konigsberg v. State Bar of California (1961), Justice John Harlan acknowledged that "certain forms of speech, or speech in certain contexts, has been considered outside the scope of constitutional protection." In Chaplinsky v. New Hampshire (1942), Justice Frank Murphy identified "certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem." He cited as examples "the lewd and obscene, the profane, the libelous, and the insulting or fighting words." In Roth v. United States (1957), Justice William Brennan affirmed that libel and obscenity fall "outside the protection intended for speech and press." In Valentine v. Chrestensen (1942), Justice Owen Roberts limited the protection awarded to "commercial speech." The Brandenburg v. Ohio (1969) per curiam held that speech may be restricted when "such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." The conclusion to be drawn from this survey of judicial opinions is that expression which falls within specific categories--obscenity, defamation, fighting words, advocacy of criminality, commercial speech--enjoys less protection than other forms of expression.
The debate over "hate speech"
Recently, a public debate questioned whether "hate speech" should be added to the list of speech forms that warrant limited protection. The controversy began in the 1980s and continued throughout the 1990s while academic institutions served as the setting for numerous instances of hate speech. Hate epithets were directed at individuals who represented specific races, ethnic backgrounds, genders, sexual orientations, and physical attributes. For example, African Americans were addressed as "nigger," "jigaboo," "porch monkey," "saucer lips," and "coon"; Jews as "kike"; Asians as "gook," "Jap," and "chink"; females as "bitch" and "cunt"; homosexuals as "queer," "faggot," and "dyke"; overweight persons as "fatso" and "lard-ass"; and disabled individuals as "crips."(1) In an effort to combat such incidents, colleges and universities passed codes designed to prevent and/or punish hate speech.(2 )Eventually, attempts by academic institutions to enforce the codes led to judicial resolution. The codes established by the University of Michigan and the University of Wisconsin were declared unconstitutional in John Doe v. University of Michigan (1989) and UWM Post v. Board of Regents of the University of Wisconsin System (1991). In addition, an ordinance formulated by the city of St. Paul, Minnesota, was overturned in R.A.V. v. City of St. Paul (1992).
In this article, the judicial decisions in John Doe, UWM Post, and R.A.V. are examined in order to accomplish two purposes. First, the study explicates why the regulatory codes were found to be unconstitutional. Detailed perusal of the decisions reveals two principal reasons why hate speech codes failed to meet constitutional muster--overbreadth and content-based regulation. Each reason will be considered in the following section. Second, the study offers a rationale for formulating acceptable codes. The author recommends that regulation be approached from a narrow perspective, one that focuses on hate-based epithets. Such an approach avoids the faults of overbreadth and content based regulation.
The administrative and legislative regulations under study in this article have been overturned because of constitutional shortcomings. In John Doe, Judge Avern Cohn declared the University of Michigan code unconstitutional because its stated purpose of sanctioning "remarks which seriously offend many individuals beyond the immediate victim, and which, therefore, detract from the necessary educational climate of a campus" (860), exceeded constitutional limits. More specifically, Judge Cohn objected to the administration's application of the policy, including the practice of punishing "offensive remarks," e.g., a psychology student openly stating his belief that homosexuality is a disease and that he intended to develop a counseling plan for changing gay clients to straight (865), a public speaking student reading a homophobic limerick which ridiculed a well-known athlete for his presumed sexual orientation (865), and a dental student stating that he had heard that minorities have a difficult time passing a specific course (866). According to Cohn, the University could not proscribe expression simply because it offended a large number of people.
In UWM Post, Judge Robert Warren found that the University of Wisconsin Rule violated the requirements of the "fighting words doctrine," as set forth in Chaplinsky v. New Hampshire (1942). In Chaplinsky, the court established a two-part definition for fighting words: words which by their very utterance inflict emotional injury, and words which tend to incite an immediate breach of the peace. The first part concerns emotional upset and injury to one's sensibilities. The second part concerns physical retaliation, i.e., fisticuffs. In order to constitute fighting words, expression must not merely breach decorum but also must tend to produce physical reaction from the addressee. Since the UW rule did not require that the regulated expression tended to incite violent response, the rule was overbroad (1169-73). The rule was misdirected in that it punished offensive words that merely demeaned or injured the sensibilities of the victim but which were incapable of eliciting a physical response.
The courts also found the codes to be content-based. In UWM Post, Judge Warren noted:
The rule disciplines students whose comments, epithets, or other expressive behavior demeans their addressees' race, sex, religion, etc. However, the rule leaves unregulated comments, epithets and other expressive behavior which affirms or does not address an individual's race, sex, religion, etc (1174).
In UWM Post, Warren identified and then rejected the University of Wisconsin's rationale for a content-based regulation. The Board of Regents had established the regulation because, in their view, the proscribed expression "has little or no social value since it does not serve as a step to the truth." Furthermore, it is not intended to inform or convince the listener, it is not part of a dialogue or exchange of views, it does not invite a reply, it constitutes verbal assault, and is likely to incite reaction. In rejecting this rationale, Warren upheld the right of speakers to employ "comments, epithets or other expressive behavior to inform their listeners of their racist or discriminatory views," or to attempt "to convince their listeners of their positions," or to express "the speaker's emotions." Warren stressed that "the Constitution does not make the dominance of truth a necessary condition of freedom of speech" (1175).
In R.A.V., Justice Antonin Scalia noted that the St. Paul ordinance went "beyond mere content discrimination, to actual viewpoint discrimination."
Displays containing some words--odious racial epithets, for example--would be prohibited to proponents of all views. But "fighting words" that do not themselves invoke race, color, creed, religion, or gender--aspersions upon a person's mother, for example--would seemingly be usable ad libitum in the placards of those arguing in favor of racial, color, etc. tolerance and equality, but could not be used by that speaker's opponents (2547-8).
The ordinance, like the hate speech code established by the University of Wisconsin, was unconstitutional because it punished content-based expression.
Examination of the judicial decisions reveals that expressions of hate are protected by specific constitutional guarantees. First, expression may not be regulated on the grounds that it is offensive or that it produces emotional injury. Clearly, any effort to ban specific offensive words, for example, the racist term "nigger," the gender-based word "cunt," and the sexual orientation-focused word "faggot," runs contrary to the constitution. If a code banned such words, numerous respected pieces of literature--Mark Twain's The Adventures of Huckleberry Finn, Henry Miller's Tropic of Capricorn, and Harvey Fierstein's Torch Song Trilogy--could not have been written. Second, content-based expression should likewise be protected. Clearly, the expression of any hate-based theory, ideology, philosophy, subject matter, or message content enjoys constitutional protection. For example, it is unconstitutional to prohibit discussion of theories regarding the intelligence of African Americans, the emotionalism of women, the normalcy of gays and lesbians, the life expectancy of overweight individuals, the dependency habits of the disabled. The laws under consideration in John Doe, UWM Post, and R.A.V. were properly overturned because they breached protected expression in either their stated legislative purpose or in their practical administrative application. And, in so doing, the courts affirmed rights that protect hate speech.
Rationale: Narrow perspective
Is it possible to construct constitutional codes? Could codes be written which withstand the test of overbreadth and which protect content-based expression? This author believes that these questions may be answered in the affirmative. It should be noted that Justice Scalia, as well as judges Cohn and Warren, acknowledged that certain forms of expression may be regulated. In UWM Post, Judge Warren admitted that the First Amendment "does not protect all speech." He noted that certain narrowly limited categories "are considered to be of such slight social value that any benefit that may be derived from them is clearly outweighed by their costs to order and morality" (1169). He specifically cited fighting words, libel, and obscenity, but did not evaluate the status of hate speech. In R.A.V., Justice Scalia claimed: " our society, like other free but civilized societies, has permitted restrictions upon the content of speech in a few limited areas . We have recognized that 'freedom of speech' referred to by the First Amendment does not include a freedom to disregard these traditional limitations" (2538, 2543). Scalia, however, did not refer directly to hate speech. In John Doe, Judge Cohn surmised: "It is an unfortunate fact of our constitutional system that the ideals of freedom and equality are often in conflict." He admitted that the "difficult and sometimes painful task of our political and legal institutions is to mediate the appropriate balance between these two competing values" (853). Yet, he did not indicate where that balance should fall regarding hate speech. It seems plausible that the decisions under study represent instances in which justices simply tossed out unconstitutional codes which inappropriately attempted to regulate hate speech. The decisions do not close the door to the notion that hate speech may be regulated by a constitutional code.
Any potentially acceptable regulation would narrowly define "hate speech" as "unwanted, demeaning, and injurious hate epithets directed at a specific individual." The code would apply only to this narrow category of expression. The definition would limit the code's reach while satisfying constitutional demands. Several writers justify regulation of hate speech on the grounds that it lacks social value, causes harm, and falls outside the scope of the First Amendment. According to Henry Saad, "this speech does not advance ideas" (1991,1352). R. George Wright argues that "such speech, inherently or in its context, does not amount to an attempt to communicate any particular social idea and therefore fails to fall within the class of speech in the constitutional sense" (1988, 2). Deborah Schwartz and Brian Owsley elaborate on this point, distinguishing between racial ideas and racist epithets:
A racial idea invites debate and advances the search for truth. Racist epithets, however, are more properly classified as isolated insults. In so far as a racial idea advances this underlying first amendment rationale, the idea merits protection. However, protection of racist epithets undermines the purposes of the truth-seeking goal underlying the first amendment (Schwartz, 1989-1990, 743).
A speaker's use of such words as "fucking niggers," "stupid Japs," or "goddam Spics" illustrates a desire to harm the listener . It is obvious that the speaker is not making a controversial scientific claim such as the one that different physiological features based on race account for differences in intelligence and mental ability. Rather, the speaker has hurled forth a group insult which is designed merely to attack the victim's self-image (Owsley, 1992-1993, 331).
Cass Sunstein recommends that hate speech be restricted "if the speech in question is not reasonably taken to be part of the exchange of ideas" (1993, 797). Any regulation, however, must be narrowly directed at hate-based epithets to provide the courts with legal justification for upholding this limitation on expression.
Throughout history, the U.S. Supreme Court has restricted forms of speech which contain content of low social value. For example, the court set forth standards for regulating obscenity in Roth v. United States (1957), commercial speech in Valentine v. Chrestensen (1942), libel in New York Times v. Sullivan (1964), child pornography in New York v. Ferber (1982), group discrimination in Beauharnais v. Illinois (1952), criminal advocacy in Brandenburg v. Ohio (1969), and fighting words in Chaplinsky v. New Hampshire (1942). While these cases appear to restrict message content, a practice that would violate constitutional standards, a closer look indicates that the restriction focuses on manner, not content. What the court regulated is not the subject matter, but rather the treatment of that subject matter. A subject that is treated in a commercial, obscene, defamatory, pornographic, discriminatory, criminally advocative, or provocative manner is subject to regulation. The content itself may not be regulated. An individual could express any idea, theory, or philosophy, as long as it was not communicated in a proscribed "manner." The same rationale may be applied to hate epithets.
Libertarian scholars oppose regulation, maintaining that the best remedy is not to restrict speech, but rather to encourage more speech. Hutzler suggests that "lengthy discussion is the most effective means" of dealing with hate speech issues (230). Ortner agrees: "The best and perhaps the only recourse against racist and hate speech is to speak out against it" (1993, 918). I agree that "more speech" is the preferred solution. Campuses and communities should encourage an atmosphere of free and open discussion between majority and minority cultures. Yet, more communication may not solve the problem of hate epithets; it may, in fact, exacerbate the situation. More speech may lead to more hate speech. Some individuals, without any fear of sanction, may choose to repeatedly utter hate epithets in an attempt to demean and denigrate a hapless victim, who must remain subjected to such abuse. The remedy of more speech is useless when it provokes further abuse because the insulter is in a position of authority over the victim. In such instances, regulations which compel responsible expression may be both useful and desirable. Campus administrators, state legislators, and perhaps the courts, should revisit the hate speech issue at least one more time, from a much more narrow perspective, before the controversy is laid to rest.
1. These incidents as well as others are described in the following sources: Author Unlisted. (1990). First Amendment&emdash;Racist and Sexist Expression on Campus--Court Strikes Down University Limits on Hate Speech. Harvard Law Review 103, 1399-1400; Bartlett, K.T., & O'Barr, J. (1991). The Chilly Climate on College Campuses: An Expansion of the 'Hate Speech' Debate. Duke Law Journal, 574; Delgado, R. (1991). Campus Antiracism Rules: Constitutional Narratives in Collision. Northwestern University Law Review, 85, 348-58; Ehrlich, H. (1990). Campus Ethnoviolence and the Policy Options National Institute Against Campus Prejudice and Violence, pp.41-72; Finegan, S.M. (1991). Anti-Harassment Disciplinary Policies: A Violation of First Amendment Rights on the Public University Campus? Boston College Third World Law Journal, 11, 107-8; Grey, T.C. (1991). Civil Rights vs. Civil Liberties: The Case of Discriminatory Verbal Harassment. Social Philosophy & Policy, 8, 84; Haviland, L. (1989). Student Discriminatory Harassment. Journal of College and University Law 16, 311-14; Highsmith, A.R. (1993). When He Hollers, Do We Have To Let Him Go? Beverly Hills Bar Association Journal, 27, 28-29; Hodulik, P. (1991). Racist Speech on Campus. Wayne Law Review, 37, 1434-43; Hyde, H.J. & Fishman, G.M. (1991). The Collegiate Speech Protection Act of 1991: A Response to the New Tolerance in the Academy. Wayne Law Review, 37, 1470-4; Jones, C.H. (1991). Equality, Dignity, and Harm: The Constitutionality of Regulating American Campus Ethnoviolence. Wayne Law Review, 37, 1398-99; Kaplan, W.A. (1992). "Hate Speech" on the College Campus: Freedom of Speech and Equality at the Crossroads. Land and Water Law Review, 27, 244-46; Lawrence III, C.R. (1990). If He Hollers Let Him Go: Regulating Racist Speech on Campus. Duke Law Journal, 431-34; Magner, D.K. (June 6, 1990). Racial Tensions Continue to Erupt on Campuses Despite Efforts to Promote Cultural Diversity. Chronicle of Higher Education, 36, A30; Martin, C.A. (1991). The Origins of Racial and Ethnic Conflict on U.S. College and University Campuses. Wayne Law Review, 37, 1363-81; Matsuda, M.J. (1989). Public Response to Racist Speech: Considering the Victim's Story. Michigan Law Review, 87, 2320-23; McGee, R.W. (1990). Hate Speech, Free Speech and the University. Akron Law Review, 24, 364-72; Riccio, R.J. (October 10, 1991). Schools' Daze: Free Speech v. Freedom From Fear. New Jersey Law Journal, 129, 15; Rychlak, R.J. (1992). Civil Rights, Confederate Flags, and Political Correctness: Free Speech and Race Relations on Campus. Tulane Law Review 66, 1425-27; Shapiro, J.T. (1990). The Call for Campus Conduct Policies: Censorship or Constitutionally Permissible Limitations on Speech. Minnesota Law Review, 75, 201, 205-6; Siegel, E.G.S. (1990). Closing the Campus Gates to Free Expression: The Regulation of Offensive Speech at Colleges and Universities. Emory Law Journal, 39, 1352-7; Simon, T.W. (1993). Fighting Racism: Hate Speech Detours. Indiana Law Review, 26, 411-13; Smolla, R.A. (1990). Rethinking First Amendment Assumptions About Racist and Sexist Speech. Washington and Lee Law Review, 47, 176-8; Tuman, J.S. (1992). "Sticks and Stones May Break My Bones, But Words Will Never Hurt Me": The Fighting Words Doctrine on Campus. Free Speech Yearbook, 30, 115-16; Wiener, J. (February 26, 1990). Words That Wound: Free Speech for Campus Bigots? Nation, 272-3; Zollinger, T.B. (1991). Doe v. University of Michigan, District Court Strikes Down University Policy Against Racial Harassment on Grounds of Vagueness and Overbreadth. Northern Illinois University Law Review, 12, 159-60.
2. Academic institutions justified regulatory policies on the ground that hate speech harms its victims. Authoritative sources claim that hate epithets cause emotional, psychological, and physiological damage in the form of rapid pulse rate, difficulty in breathing, hypertension, psychosis, post-traumatic stress disorder, nightmares, and suicide. See Delgado, R. (1982). Words that Wound: A Tort Action for Racial Insults, Epithets, and Name-calling. Harvard Civil Rights-Civil Liberties Law Review, 17, 133-181; Matsuda, M.J. (1989). Public Response to Racist Speech: Considering the Victim's Story. Michigan Law Review, 87, 2320-2381; Myhra, A.G. (1992). The Hate Speech Conundrum and the Public Schools. North Dakota Law Review, 68, 71-129.
American Communications Association, C.I.O. v. Douds, 339 U.S. 382 (1950).
Beauharnais v. Illinois, 343 U.S. 250 (1952).
Brandenburg v. Ohio, 395 U.S. 444 (1969).
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).
Gitlow v. New York, 268 U.S. 652 (1925).
Hutzler, C. (1993). A Paradoxical Approach to the First Amendment and Hate Speech. Maryland Journal of Contemporary Legal Issues, 4, 205-30.
John Doe v. University of Michigan, 721 F.Supp 852 (E.D. Mich. 1989).
Konigsberg v. State Bar of California, 366 U.S. 36 (1961).
Kovacs v. Cooper, 336 U.S. 77 (1949).
New York Times v. Sullivan, 376 U.S. 254 (1964).
New York v. Ferber, 458 U.S. 747 (1982).
Ortner, W G. (1993). Jews, African-Americans, and the Crown Heights Riots: Applying Matsuda's Proposal to Restrict Racist Speech. Boston University Law Review 73, 897-918.
Owsley, B. (1992-1993). Racist Speech and "Reasonable People": A Proposal for a Tort Remedy. Columbia Human Rights Law Review, 24, 323-67.
R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).
Roth v. United States, 354 U.S. 476 (1957).
Saad, H. W. (1991). The Case For Prohibitions of Racial Epithets in the University Classroom. Wayne Law Review, 37, 1351-62.
Schenck v. United States, 249 U.S. 47 (1919).
Schwartz, D. R. (1989-1990). A First Amendment Justification For Regulating Racist Speech on Campus. Case Western Reserve Law Review, 40, 733-79.
Sunstein, C. R. (1993). Words, Conduct, Caste. University of Chicago Law Review, 60, 795-844.
UWM Post v. Board of Regents of the University of Wisconsin System, 774 F.Supp 1163 (E.D. Wis. 1991).
Valentine v. Chrestensen, 316 U.S. 52 (1942).
Wright, R. G. (1988). Racist Speech and the First Amendment. Mississippi College Law Review, 9, 1-28.