Protecting our rights
First Amendment means allowing divergent speakers — even haters — to have their say
In the Bay Area and across the country, many students and faculty members are calling on their universities to bar speakers who express hateful messages. At a packed forum on the UC Berkeley campus in September, several urged Chancellor Carol Christ to keep speakers such as Milo Yiannopoulos, Ann Coulter and Steve Bannon from speaking on campus. At many universities, there have been calls to ban white supremacist Richard Spencer from appearing.
Those who seek to exclude these speakers are acting from laudable motives: The presence of hateful speakers disrupts campus activities, imposes significant financial costs in ensuring safety and, most of all, causes great distress and interferes with the studies and work of those who have been traditionally underrepresented in universities.
Yet, the law is clear. Hate speech is protected by the First Amendment, and public universities violate the Constitution if they exclude speakers based on the views expressed, even if it is a viewpoint that is hateful and deeply offends others.
On many occasions, the courts have struck down government efforts to restrict hateful speech. In the late 1970s and early 1980s, every court to consider the issue held that the Nazi Party had the right to march through Skokie, Ill., a predominately Jewish suburb of Chicago. In 1992, the U.S. Supreme Court unanimously declared unconstitutional a St. Paul, Minn., ordinance that prohibited burning a cross or painting a swastika in a manner likely to anger, alarm or cause resentment. In 2003, the court held that there is a First Amendment right to burn a cross, even though it is a vile symbol of hate.
This is not the first time that there have been efforts to stop hateful speech on campuses. In the early 1990s, more than 350 colleges and universities adopted hate-speech codes. Every one to be considered by a court was declared unconstitutional. Earlier this year, a federal court ruled that Auburn University in Alabama acted unconstitutionally when it tried to exclude Spencer from speaking.
Why this protection of hate speech and the rejection of powerful pleas from many students and faculty to allow restrictions? After all, almost every European nation has a law prohibiting hate speech. In part, the problem is the inability to define hate speech in a manner that is not unduly vague or overbroad. Under the First Amendment, any law or rule regulating speech must be clear about what is prohibited and what is allowed. But campus hate-speech codes typically prohibited speech that “stigmatizes” or “demeans” on the basis of race or sex or religion or sexual orientation. The law in Germany prohibits speech that attacks “the human dignity of others by insulting, maliciously maligning or defaming segments of the population.” Words like “stigmatizes,” “demeans” or “insults” are too vague to meet First Amendment scrutiny.
Most of all, though, hateful speech is protected by the First Amendment because it expresses a viewpoint, albeit a very offensive one.
This does not mean that campuses are powerless to deal with speech that causes significant harms. The Supreme Court has held that speech that incites illegal activity is not protected by the First Amendment — but it must pose a substantial risk of imminent illegal activity, and the speaker must be intending to cause immediate violations of the law.
Also, speech that constitutes a “true threat” is not constitutionally protected. Although the Supreme Court still has not clearly defined this phrase, the idea is that there is no First Amendment right to use speech to cause a person reasonably to fear imminent harm to his or her physical safety.
Speech that rises to the level of harassment also can be prohibited and punished. In the workplace, for example, an employer can be held liable for creating a hostile work environment. The law is unclear as to when speech on campus constitutes harassment, but generally it must be directed at a person or be so pervasive as to materially interfere with educational opportunities based on race, sex, religion or sexual orientation.
Additionally, universities can have time, place and manner restrictions with regard to speech to prevent disruption of campus activities and to ensure public safety so long as there are adequate alternative places for speech. UC Berkeley, for example, required that controversial speaker Ben Shapiro appear in an auditorium where safety could best be ensured.
Perhaps most important, campus officials can engage in their own speech, denouncing the expression of hate and using such occasions for explaining why it is inconsistent with the campus’ principles of community. Long ago, Justice Oliver Wendell Holmes said that the best remedy for the speech we don’t like is more speech. More speech cannot cure the pain of hateful speech, but it can go a long way to bringing a campus together when an ugly incident occurs.
What, though, can we say to students and faculty who are not convinced by all of this? I point to the dangers of censorship, such as during the McCarthy era when faculty were fired and students expelled just for being suspected of supporting communism. I simply don’t trust campus officials to have the power to decide what speech should be allowed and what should be prohibited. The only way that our speech will be protected is to safeguard the speech that we detest.