Free Speech on Campus: Erwin Chemerinsky and the Murky Waters of Hate Speech
When Erwin Chemerinsky talks about free speech, he does so in such a measured, unbiased manner that it is easy to forget why the topic is such a controversial issue. That’s not to say that the latent hype around free speech and civil discourse on campus is overblown or unreasonable, but rather that the tact and decorum that Chemerinsky brings to the table function as a sign of hope that it is indeed possible to talk about free speech in a congenial manner.
After a series of distasteful fliers were posted around campus on the evening of January 28th, conversations surrounding free speech have resurged with vigor amongst students, and the question of one’s right to free speech has been highly contested. Some students have argued that the fliers are representative of a kind of “free speech gone wild,” in which individuals claim the right to say whatever they want, even if what they have to say is offensive, and even if it further marginalizes the already disenfranchised. This line of thought tends to present a zero-tolerance policy towards hateful language, and expects that the University will establish consequences for the person who posted the fliers. Others claim that the flier is merely an example of an individual exercising his or her right to free speech, and that by silencing that individual’s voice, we hinder freedom of expression.
When I first heard about the fliers, I certainly would have fallen into the camp of the former. I was appalled by the sentiment expressed, and outraged on behalf of those belonging to the communities that the fliers attacked. I wanted to see the University take action. I wanted to see the person responsible held accountable. I was angry, and in my anger, I was letting the big picture slip away.
However, after listening to Chemerinsky speak about the legality of free speech on campus, my blood pressure started to return to normal. I realized the extent to which my emotional response had clouded my judgment of how universities should handle the tricky territory of free speech, and felt some of my naïve assumptions fall to the wayside. For example, I had always thought that most offensive statements justified under free speech could be dispelled by the argument that they were constitutive of hate speech. Chemerinsky addressed this common point of confusion, informing the audience that it in reality, it is incredibly difficult to punish hate speech, and what we think of as “hate speech” is most often protected as free speech. Why? Because the law takes stringent measures to ensure that legal language is not unduly vague or overly broad, and since hate speech is so difficult to define, it has yet to come up with language that can capture the sentiment without conflicting with free speech law.
When members of the audience pushed back on this point, Chemerinsky was prepared to respond with compelling examples that illustrated why it would be problematic to be imprecise in our definitions of hate speech, and he clarified the importance of establishing legal language that can serve its goal in a variety of scenarios.
“What would happen if Roe v. Wade were overturned,” he mused, “and people tried to make the case that pro-choice arguments are dehumanizing and therefore constitutive of hate speech?”
Chemerinsky’s rhetorical questions and ample examples raised compelling points about the importance of protecting each person’s right to articulate their values and beliefs. “We don’t need protection of free speech for speech we like,” he added.
His points about the legal murkiness of free speech and hate speech made me reconsider my prior belief that the University should take disciplinary action against the person who posted the flier, but they still didn’t prompt a surge of forgiveness. I continue to refuse to condone the flier’s sentiments, and am especially critical of the cowardice in the poster’s anonymity. The fliers made no attempt to offer a political opinion, to prompt discussion, or to further civil discourse—instead, they targeted and attacked both immigrants and survivors of sexual assault, which I find unacceptable. However, instead of silencing this voice and sentencing it into oblivion, I believe we as a community ought to seize our rights to free speech in response.
I am proud of our administration for addressing the hurtful and problematic messages these fliers communicated in a campus-wide email. I am proud of the MCC for flooding our campus with messages of inclusivity, and for boldly proclaiming “immigrants our welcome here” through its windows. And I am proud of the students, especially those directly affected by the flier’s sentiments, who have responded to this incident with ardent calls to justice, with fearsome bravery, and with the resilient willingness to keep showing up. May we all continue to show up, and may we all continue to speak out.