Awakening Our Democracy: Free Speech on Campus – Postscript from Fordham University Professor of Law Tanya Hernandez

Thursday, November 2, 2017

 “Congress shall make no law . . . . abridging the freedom of speech.”  U.S. Constitution, Amendment I.

The very first thing that often surprises people conflicted about tolerating hate speech in order to respect free speech, is that the U.S. First Amendment only specifically restrains the federal government from impinging on free speech.  Private universities are thus under no constitutional obligation to allow unfettered free speech that harms others.  Even the political pressure on college administrators (at public and private universities) to adhere to First Amendment doctrine misapprehends how absolute free speech extends.

Supreme Court cases have a number of categorical exceptions of speech that our government is allowed to restrain (defamation, obscenity, commercial speech, fighting words that endanger public safety, etc.).  [Even] the constitutional tolerance for hate speech is drawn at the line of incitement to violence.  Moreover, our anti-discrimination statutory law regulates hate speech by prohibiting it in advertisements for housing, and by penalizing it when used as part of a campaign of race or sexual harassment in the workplace.

Yet it is true that the United States stands out as an exception to the more pervasive regulation of hate speech across the globe and in international law where the Convention on the Elimination of All Forms of Racial Discrimination condemns the dissemination of all ideas based on racial superiority or hatred.  Quite puzzling though is the consideration of the First Amendment in isolation from the rest of the Constitution, and more specifically from the Fourteenth Amendment.  The Fourteenth Amendment mandates the disestablishment of the ideology of racism by prohibiting the government to “deny any person the equal protection of the laws.”  Putting the First Amendment into conversation with the Fourteenth Amendment means asking the question of whether an act of hate speech deepens power disparities amongst groups, or makes it less likely that systemic discrimination will be dismantled in the future.  This is an anti-subordination equality inquiry into free speech.

This is both a necessary and crucial inquiry to make because “to engage in a debate about the First Amendment without a full understanding of the nature and extent of harm of racist speech, risks making the First Amendment an instrument of domination rather than a vehicle of liberation” (Charles Lawrence III, “If He Hollers Let Him Go: Regulating Racist Speech on Campus,” 39 Duke Law Journal 431 (1990) http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=3115&context=dlj.  Shielding the First Amendment from the anti-subordination inquiry of the Fourteenth Amendment effectively provides individuals the constitutional right to be racist.  Similarly, according unfettered space on a university campus to promoters of hate risks legitimating messages of hate which are an engine for teaching the ideology of racism.

Hate speech is undeserving of protection because the perpetrator’s intention is not to discover truth or initiate dialogue but solely to injure the victim.  This is because racism is irrational.  Individuals do not embrace or reject racist beliefs as the result of reasoned deliberation.  The racial harm such speakers seek to inflict is real and results in tangible injuries, as extensively documented by Richard Delgado, “Words that Wound: A Tort Action for Racial Insults, Epithets, and Name Calling,” 17 Harvard Civil Rights Civil Liberties Law Review 133 (1982) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2000918.  

But what is a college administrator to do when confronted with community concerns about hate speech?  Critical Race Theorist Mari Matsuda offers one possible framework for distinguishing equality endangering assaultive hate speech from merely offensive speech by considering the following three factors:

  1. Is the message one of racial inferiority?
  2. Is the message directed against a historically oppressed group?
  3. Is the message persecutory, hateful and degrading?

Public Response to Racist Speech: Considering the Victim’s Story," 87 Michigan Law Review 2320 (1989).

With the Matsuda framework, not all group-specific speech that individuals may find disturbing is regulated as hate speech.  For instance, speakers that address questions about how to best resolve the tensions concerning competing claims over land in the Middle East could very well cause discomfort for some listeners.  But absent an accompanying message of racial inferiority that was hateful and degrading, it would not be regulated as hate speech. 

As such, the framework does not implicate the myriad ways that group members can be in conflict with a specific speaker.  But this is because only hate speech that acts as a racial assault erodes our national concern with racial equality.  When hate speech is permitted to be propagated, it encourages a social climate in which particular groups are denigrated and their discriminatory treatment is accepted as normal.  Jurisdictions beyond the United States choose to enact hate speech legislation because there is little social value in racist speech whose basic purpose is to degrade others, deny them their identity as human beings, exclude them from the entitlements of the basic social and constitutional covenant, and expose them to violence.  By denying human dignity to some people, hate speech attacks the very basis of democratic systems.

It is no longer the case that blanket questioning of the human status of racial minorities can be considered a continuing topic of debate.  Today, the universal value in the formal equality of all human beings provides a very different context for the consideration of hate speech harms and regulation.  Against the backdrop of a universal condemnation of ideologies of racial superiority, racist speech has no political value. 

Absent any political value or search for truth, why should college students or anyone else for that matter be forced to endure what is harmful to society at large?  History demonstrates that hate speech matters.  For instance, the knowledge that anti-Semitic hate propaganda was clearly connected to the rise of Nazism informed the development of international laws against hate speech.  The loss of life from the danger of priming individuals to hate through a campaign of racialized message that later justifies the decision to kill was tragically evident not only with the Holocaust, but also with the Rwanda genocide of the Tutsi and the Bosnian genocide of Muslims and Croatians.  Certainly universities can teach their students how to debate important social issues without also implicitly endorsing hate-speech mongers on campus.

Once a university becomes willing to consider the question of regulating hate speech (with the Mari Matsuda framework or a paradigm of its own design) it will also need to consider what sort of actions to take.

Blanket prohibition of hate speech may not always be so clear to discern.  For instance, some speakers may veil the intended message of their speeches until the actual event.  Charles Lawrence suggests that alternative university responses might include an affirmative remedy or reparation to the injured class such as is done when an employer is held responsible for the harassing acts of its employees.  “The university might set aside a slot for a minority professor or fund an additional full scholarship for a minority student, or cancel classes for a day and hold a university-wide teach-in on racism.” “If He Hollers Let Him Go: Regulating Racist Speech on Campus,” 39 Duke Law Journal 431 (1990).  Having a university assert its own values in response to hate speech occurring on campus is an important part of such an endeavor.  In short, the regulation of hate speech may not always result in easy answers or uniform responses, but its most important contribution is embodying a concrete commitment to respecting and embracing the full diversity of a university community.            

Tanya Katerí Hernández is the Archibald R. Professor of Law at Fordham University School of Law Tanya Katerí Hernández is the Archibald R. Professor of Law at Fordham University School of Law and author of “Hate Speech and the Language of Racism in Latin America: A Lens for Reconsidering Global Hate Speech Restrictions and Legislation Models,” 32 University of Pennsylvania Journal of International Law 805 (2011)