The Price of Free Speech:
Campus Hate Speech Codes
by Gerald Uelmen
At Emory University, certain conduct that is permissible off
campus is not allowed on campus. Specifically, some speech and
behaviors are prohibited in Emory's version of what are derogatorily
labeled "politically correct" codes but are more commonly known
as hate speech codes. Emory's code begins with its definition
of banned behavior.
Discriminatory harassment includes conduct (oral, written,
graphic or physical) directed against any person or, group of
persons because of their race, color, national origin, religion,
sex, sexual orientation, age, disability, or veteran's status
and that has the purpose or reasonably foreseeable effect of
creating an offensive, demeaning, intimidating, or hostile environment
for that person or group of persons.
There were approximately 75 hate speech codes in place at
U.S. colleges and universities in 1990; by 1991, the number
grew to over 300. School administrators institute codes primarily
to foster productive learning environments in the face of rising
racially motivated and other offensive incidents on many campuses.
According to a recent study, reports of campus harassment increased
400 percent between 1985 and 1990. Moreover, 80 percent of campus
harassment incidents go unreported.
Hate speech codes follow several formats. Some codes, including
Emory's, prohibit speech or conduct that creates an intimidating,
hostile, or offensive educational environment. Others ban behavior
that intentionally inflicts emotional distress. Still others
outlaw general harassment and threats," without clarifying what
constitutes such conduct. Court rulings have prohibited public
(state-run) colleges and universities from enacting codes that
restrict the constitutional right to free speech based on content.
Private institutions, in contrast, are not subject to these
decisions. Emory, for example, as a private university, can
ignore public law rulings and draft whatever hate speech policy
Hate speech codes raise important ethical questions. When
civil liberties are pitted against the right to freedom of speech,
which does justice favor? Do the costs of hate speech codes
outweigh their benefits? Is the harm that results from hate
speech so serious that codes to restrict freedom of speech are
Arguments Against Campus Hate Speech Codes
The most fundamental argument against hate speech codes rests
on the idea that they violate a fundamental human right, freedom
of speech. Such a fundamental right, it is argued, should not
be limited except to prevent serious harm to others. Libel or
shouting "Fire!" in a movie theater, for example, can cause
serious harm and, therefore, are legitimately banned. In contrast,
what campuses prohibit as "hate speech" is primarily opinion
that, while often offensive and unpopular, does not cause serious
harm. The fundamental right to free speech should not be restricted
merely to prevent hate speech.
Additionally, critics assert that the costs of hate speech
codes far outweigh their benefits. Threatened by "politically
correct" students who are backed by hate speech codes, students
who have reasonable yet nonconforming points of view will be
afraid to speak in classes. As a social institution, a university
should be open to all opinions, popular and unpopular. As Oliver
Wendell Holmes commented, "The very aim and end of our institutions
is just this: that we may think what we like and say what we
think." Hate speech codes thus inflict a major harm on our social
Censorship is only one example of how hate speech codes undercut
the benefits of higher education. If these codes shield students
from dissenting opinions, how will they learn to respond to
such opinions after they graduate? Hate speech codes encourage
an artificial reality on campus that prevents students from
learning effectively to tolerate diversity.
Hate speech codes may obstruct the kind of education that
promotes tolerance of diversity in other ways. Over time, the
same fervor that brought hate speech codes will bring further
restrictions by administrators eager to create egalitarian institutions
in a nonegalitarian world.
The law school at the State University of New York, Buffalo,
for example, seeks out and ask state bars to deny admission
to former students who violate its hate speech code. And following
the 1988 passage of the Civil Rights Restoration Act, which
denies federal aid to students of private colleges and universities
that violate federal anti-discrimination rules, legislators
are considering a law that would force private institutions
to require courses on, racial sensitivity and ethnic history.
From defining what specifically constitutes "hate speech" to
choosing the manner in which policies are enforced, codes clearly
cause or invite more trouble than they are worth.
In Defense of Campus Hate Speech Codes
Those who advocate hate speech codes believe that the harm codes
prevent is more important than the freedom they restrict. When
hate speech is directed at a student from a protected group,
like those listed in Emory University's code, the effect is
much more than hurt feelings. The verbal attack is a symptom
of an oppressive history of discrimination and subjugation that
plagues the harmed student and hinders his or her ability to
compete fairly in the academic arena. The resulting harm is
clearly significant and, therefore, justifies limiting speech
In addition to minimizing harm, hate speech codes result in
other benefits. The university is ideally a forum where views
are debated using rational argumentation; part of a student's
education is learning how to derive and rationally defend an
opinion. The hate speech that codes target, in contrast, is
not presented rationally or used to provoke debate. In fact,
hate speech often intends to provoke violence. Hate speech codes
emphasize the need to support convictions with facts and reasoning
while protecting the rights of potential victims.
As a society we reason that it is in the best interest of
the greatest number of citizens to sometimes restrict speech
when it conflicts with the primary purpose of an event. A theater
owner, for example, has a right to remove a heckler when the
heckler's behavior conflicts with the primary purpose of staging
a play - to entertain an audience. Therefore, if the primary
purpose of an academic institution is to educate students, and
hate speech obstructs the educational process by reducing students'
abilities to learn, then it is permissible to extend protection
from hate speech to students on college or university campuses.
Hate speech codes also solve the conflict between the right
to freely speak and the right to an education. A student attending
a college or university clearly has such a right. But students
exercising their "free speech" right may espouse hateful or
intimidating words that impede other students abilities to learn
and thereby destroy their chances to earn an education.
Finally, proponents of hate speech codes see them as morally
essential to a just resolution of the conflict .between civil
rights (e.g., freedom from harmful stigma and humiliation) and
civil liberties (e.g., freedom of speech). At the heart of the
conflict is the fact that under-represented students cannot
claim fair and equal access to freedom of speech and other rights
when there is an imbalance of power between them and students
in the majority. If a black student, for example, shouts an
epithet at a white student, the white student may become upset
or feel enraged, but he or she has little reason to feel terror
or intimidation. Yet when a white student directs an epithet
toward a black student or a Jewish student, an overt history
of subjugation intensifies the verbal attack that humiliates
and strikes institutional fear in the victim. History shows
that words of hatred are amplified when they come from those
in power and abridged when spoken by the powerless.
Discrimination on college and university campuses is a growing
problem with an uncertain future. Whether hate speech codes
are morally just responses to campus intolerance depends on
how society interprets the harms of discriminatory harassment,
the benefits and costs of restricting free speech, and the just
balance between individual rights and group rights.
This article builds on a November 1990 presentation delivered
at the Center by Gerald F. Uelmen, dean of Santa Clara University
School of Law and a fellow of the Center for Applied Ethics.
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