Hate and Free Speech on Campus: The Importance of Boundaries
New York Law School
TOO MANY SURVEYS, AS WELL AS NUMEROUS ACTUAL EXPERIENCES, demonstrate that many members and even leaders of campus communities aren’t aware of the free speech boundaries of various types of campus expression, including “hate speech” – a term that has no specific legal meaning, but generally denotes speech that conveys hateful, discriminatory views, especially toward traditionally oppressed groups. “Free speech battles on campus” (to quote this conference’s title) are too often fueled by such ignorance, with proponents in the “warring” camps making simplistic, absolutist assertions about free speech principles, which are in fact much more complex and nuanced .
On the one hand, we hear declarations that “hate speech is not free speech,” reflecting the inaccurate view that hate speech, by virtue of its hateful and hated message, is categorically unprotected in any campus context. On the other hand, we hear pronouncements that “hate speech is free speech,” reflecting the equally inaccurate view that hate speech is categorically protected in any campus context. This latter misstatement of free speech principles is regularly invoked by critics of those principles as a purported justification for rejecting them. When people understand that free speech principles actually are more complicated, appropriately tailored to accommodate different facts and circumstances, they generally become more supportive of those principles.
Free speech principles have been shaped and refined throughout the last century to deal with myriad real-world problems, and they have been particularly influenced by efforts to give voice to dissenting perspectives and disempowered minority groups. Most notably, the mid-twentieth century Civil Rights Movement generated the most important Supreme Court decisions forging robust free speech principles, which not only permitted that movement to thrive, but also liberated expression all across the ideological spectrum, as well as expression in artistic and other spheres. It is no coincidence, therefore, that free speech principles bar censorship of the most dangerous type: official suppression of dissident views and marginalized voices. Correspondingly, these principles also bar speech of the most dangerous type: speech that directly, imminently causes or threatens certain specific, serious harms.
The two core tenets that the preceding two sentences summarize, respectively, are often labeled the “viewpoint neutrality principle” and the “emergency principle.” On the one hand, officials may not suppress speech solely because its viewpoint is despised or vaguely feared to indirectly lead to potential future harm. On the other hand, they may suppress speech if, in a particular context, it directly causes or threatens certain specific, serious, imminent harms, which cannot be averted through any alternative measure. While Supreme Court Justices often are deeply split on particular free speech controversies, it is noteworthy that these “bedrock principles” – as the Court has termed them – have consistently been supported by modern Justices all across the ideological spectrum.
The Justices’ predominant concern has been to constrain the discretion of officials -- who are by definition accountable to majoritarian, powerful interests -- so that the officials don’t unjustifiably suppress minority views or marginalized speakers. Earlier in our history, when government was empowered to censor speech solely because its message was deemed “hateful,” or to have a “harmful tendency,” the government, predictably, disproportionately censored speakers who challenged the established order, including advocates of racial and social justice. To this day, some officials castigate Black Lives Matter advocacy as hate speech.
As a champion of – and enthusiastic participant in -- robust “battles” about all ideas, including ideas about free speech, I welcome vigorous exchanges on this important topic. However, I hope to contribute to exchanges that provide “more light than heat” by eliminating some “straw person” anti-free-speech arguments – arguments that demonize a phantom free speech absolutism that our legal standards do not in fact embody. I have encountered many people who have become supporters of current free speech principles once they learn that these principles do allow many boundaries upon hate speech, including restrictions in classroom lectures and discussions, limits on outside speakers who may be invited to many campus forums, and punishment for targeted harassment or bullying. To be sure, familiarity with free speech principles hardly guarantees support for all such principles – nor should it, as no thinking person could agree with the whole detailed body of caselaw. However, familiarity with basic free speech principles does generally narrow the range of disagreement, making discussions about these principles more focused and constructive.
For the foregoing reasons, this essay will summarize the major free speech principles that govern the myriad campus contexts in which expression occurs. (The caselaw is so complex, with multiple specific rules for various factual situations, that this summary necessarily omits some significant details, in order to focus on the most essential broad principles.)
Public vs Private Campuses
On the campuses of public universities and colleges, the First Amendment’s Free Speech Clause, and the many Supreme Court decisions construing and enforcing it, set the boundaries for all speech, including speech that conveys hateful or hated messages. In contrast, private campuses – along with other non-governmental institutions – are not bound by the First Amendment, but to the contrary these campuses have their own First Amendment rights, including the right to determine what expression will or will not be permitted in their communities, consistent with their particular educational missions and values. Many private campuses voluntarily choose to honor the same First Amendment free speech standards that public campuses must honor, because the private campuses view such standards as consistent with their educational missions. Other private campuses, including religious ones, expressly depart from such First Amendment standards in order to promote speech that reflects their specific missions.
For the remainder of this essay, I will focus on the First Amendment free speech boundaries, or limits, that prevail on all public campuses and most private ones. These limits vary depending on the particular context – the particular campus setting and circumstances in which the speech occurs. Major pertinent contextual factors include the following: the place where the speech occurs; whether the speech limit is viewpoint-based, or instead a viewpoint-neutral “time, place, and manner” regulation; and whether or not the speech is part of the university’s teaching and research/scholarly work.
The Place Where the Speech Occurs
Every campus contains a range of settings, which serve an array of purposes, and hence are appropriately subject to different free speech regimes.
Traditional public forums
At one extreme, campuses generally contain some outdoor areas such as greens, plazas, sidewalks, and streets. These constitute the campus counterpart of the public parks, squares, sidewalks, and streets in our municipalities, which the Supreme Court has labeled “quintessential” or “traditional” “public forums,” because they have historically been available for free expression and assembly. In all such areas, officials may only restrict speech in the narrow circumstances when they can demonstrate that the restriction satisfies the emergency test, outlined above. Courts usually enforce that approach through judicial “strict scrutiny”; the courts closely examine the asserted rationale for the speech restriction, demanding evidence that the speech directly and imminently causes or threatens the feared harm, and that the speech restriction is necessary to avert that harm.
The Supreme Court has specified criteria for several subcategories of expression that may be restricted consistent with these strict general standards. For example, a punishable “true threat” is expression that the speaker aims at a specific, relatively small audience, intending to instill a reasonable fear in the audience members that they will be subject to violence, and the expression does in fact instill such a fear. As another example, a speaker may not intentionally incite imminent violence that is likely to happen imminently. As one final example, a speaker may not engage in targeted harassment or bullying – speech that is so severe, pervasive, and objectively offensive, that it interferes with equal educational or employment opportunities.
Unfortunately, there are too many instances of hate speech on campus that satisfy these contextual criteria and hence are punishable. One prominent example is the hateful chants of the Unite the Right demonstrators on the University of Virginia campus in August 2017. To be sure, the federal judge who permitted their demonstration to proceed (with the ACLU’s backing) was correct that their expression’s hateful viewpoint did not justify retracting their permit, stressing their leaders’ sworn affidavits that they had no plans to engage in violence or intimidation. Yet, the night before the permitted demonstration, and contrary to their sworn statements in the court proceedings, these demonstrators menacingly encircled counter-demonstrators en masse while brandishing lighted Tiki torches and other weapons. That expression rose to the level of a punishable true threat. In short, even before these demonstrators engaged in actual violence – which is of course punishable criminal conduct – their expression could and should have been suppressed.
Some campuses have sought to restrict the robust free speech that must be permitted in public forums by designating only limited campus areas as “free speech zones,” and declaring all other campus areas out of bounds for expressive activities, even those areas that constitute traditional public forums. The courts have consistently struck down such measures under the First Amendment, and many state and federal laws have been proposed and enacted to outlaw them.
At another extreme, campuses also generally contain some residential areas, including student dormitories and faculty housing, where residents should enjoy the same privacy, peace and quiet as they should enjoy in off-campus residential areas. The Supreme Court has recognized “the sanctity of the home” as a “retreat. . . from . . . tribulations,” whose “tranquility . . . and privacy” should be protected from intrusive communications. Accordingly, campus officials may enforce viewpoint-neutral limits on speech that are designed to foster the area’s tranquility, as long as the speakers have “ample alternative channels” for conveying their messages. For example, officials could bar all group protests, and all loud speakers, at night.
Consistent with these principles, campus officials could regulate hate speech in the same way as speech with any other viewpoint. For instance, if a university is concerned that certain signs posted in a dormitory’s shared residential spaces might disturb the tranquility of the home for some residents, because of their hateful or hated messages, the university could bar all signs in these spaces.
Limited or designated public forums
An intermediate type of campus area, in terms of how strongly free speech should be protected, is what the Supreme Court has labeled a “limited public forum” or “designated public forum” – a space that the government (including a public university) has chosen to open for particular speakers, or speech about particular topics. For example, a campus could designate certain indoor spaces – such as auditoriums, gymnasiums, or classrooms – as available for campus groups (and outside groups) for meetings, or to host speakers or other events. The limited public forum concept also applies to programs involving certain kinds of speakers or speakers on certain topics. For example, a university could host a speaker series that included speakers with certain credentials – for example, tenured professors in certain academic fields – or speakers with expertise on designated topics.
Campuses typically include many limited public forums, because of the necessarily limited number of opportunities and spaces for speech. The finite campus facilities, as well as speaker slots, must be allocated on a selective basis. Even on the largest campuses, which host large numbers of diverse speakers throughout the academic year, those numbers still constitute only a tiny fraction of the full universe of potential speakers. Selection or “curation” is required, to ensure that the expression serves designated educational purposes. Speakers who lack the designated credentials or expertise could be excluded from the forum. In other words, speakers’ (non)eligibility for participation in a limited public forum depends on the general content of their expression – i.e., it must reflect certain expertise and discuss specified topics. However, the selection/exclusion of speakers should not be narrowly viewpoint-based. If an invited speaker satisfies the specified criteria as to expertise, the speaker may not be disinvited because of controversial views, even views that some critics brand as hateful and discriminatory.
Limited or designated public forums on campus are “co-curricular” or “extra-curricular” complements to the formal curriculum, and as such generally track the even more selective, more highly curated curricular decisions that every campus and every faculty member must make: what courses to include in the curriculum, and what topics and assigned readings to include in each course. These decisions also are necessarily content-based, but should not be based on viewpoint-discriminatory considerations. Much less should such decisions exclude educationally important materials because they include hateful language. I hasten to add that faculty members should exercise their professional judgments by anticipating and taking steps to minimize potential negative impacts of such language on students’ psychological well-being. These steps could include “trigger warnings” and focused discussion about these facets of the material, as well as flagging counseling resources for potentially traumatized students.
Is the Speech Related to Teaching or Research/Scholarship?
As already indicated, when campus speech occurs in curricular or co-curricular contexts, it necessarily must be subject to content-based selection or curatorial standards, to determine whether it advances the particular educational purpose of the pertinent forum, department, or class. Not only do campus members have the right to engage in such evaluations; they have a professional responsibility to do so. If faculty members did not make content-based judgments about what courses are included in each department or major, and what speakers are invited to deliver marquee lectures, including the Commencement address, they would be irresponsible, undermining students’ educational opportunities. Likewise, when faculty members evaluate student papers or other projects, or when senior faculty members evaluate the scholarly and teaching work of their junior colleagues, they have a professional responsibility to consider content-based criteria, evaluating the excellence of the work product.
Moreover, in these instances of “professional” campus speech (the term used by Profs. Erwin Chemerinsky and Howard Gillman in their excellent book about campus free speech), members of the campus community must take into account not only expression’s content, but also its viewpoint. For example, if a particular viewpoint has been discredited by the overwhelming evidence in the pertinent field, a professor should not be permitted to advance that viewpoint in class, and should be denied a tenure application based on publications that advance it. This is in direct contradistinction to the public forum-type campus contexts discussed above, in which any member of the campus community (or anyone else) should be free to advance any viewpoint, even those that lack evidentiary support.
The foregoing free speech principles are designed to constrain official discretion to silence or punish disfavored ideas or speakers. Throughout history, the major beneficiaries of these principles, unsurprisingly, have been those who criticize the status quo and advocate reform, including human rights champions. These principles authorize officials to suppress speech when, in the particular facts and circumstances, it directly causes specific, serious, imminent harm. This is true even in the campus contexts where free speech is most highly protected: the greens, plazas, and other areas that constitute traditional public forums. Moreover, in many important campus contexts, expression is appropriately circumscribed to promote the university’s educational and research/scholarly missions. In these contexts – including curricular and course design, classroom lectures and discussions, and lecture series and other extra-curricular programs – campus officials may make professional judgments to exclude expression that does not promote the university’s mission, including hateful expression.
This outline of major free speech principles pertinent to campus will, I hope, clarify and focus the essential ongoing debates and discussions. We certainly should vigorously discuss whether any or all of these principles should be revised or rejected, and even if we agree that a particular principle should be reaffirmed, there remain challenging questions about how it should apply in the myriad specific factual circumstances that arise on campus. In short, long live campus free speech about campus free speech!
Nadine Strossen will appear on the panel, "Current Free Speech Challenges on Campus and Beyond," at the Campus Free Speech Battles Conference on September 25, 3:30-5:00 pm.