In recent years, a rise in verbal abuse and violence directed at people of color, lesbians and gay men, and other historically persecuted groups has plagued the United States. Among the settings of these expressions of intolerance are college and university campuses, where bias incidents have occurred sporadically since the mid-1980s. Outrage, indignation and demands for change have greeted such incidents -- understandably, given the lack of racial and social diversity among students, faculty and administrators on most campuses.
Many universities, under pressure to respond to the concerns of those who are the objects of hate, have adopted codes or policies prohibiting speech that offends any group based on race, gender, ethnicity, religion or sexual orientation.
That's the wrong response, well-meaning or not. The First Amendment to the United States Constitution protects speech no matter how offensive its content. Speech codes adopted by government-financed state colleges and universities amount to government censorship, in violation of the Constitution. And the ACLU believes that all campuses should adhere to First Amendment principles because academic freedom is a bedrock of education in a free society.
How much we value the right of free speech is put to its severest test when the speaker is someone we disagree with most. Speech that deeply offends our morality or is hostile to our way of life warrants the same constitutional protection as other speech because the right of free speech is indivisible: When one of us is denied this right, all of us are denied. Since its founding in 1920, the ACLU has fought for the free expression of all ideas, popular or unpopular. That's the constitutional mandate.
Where racist, sexist and homophobic speech is concerned, the ACLU believes that more speech -- not less -- is the best revenge. This is particularly true at universities, whose mission is to facilitate learning through open debate and study, and to enlighten. Speech codes are not the way to go on campuses, where all views are entitled to be heard, explored, supported or refuted. Besides, when hate is out in the open, people can see the problem. Then they can organize effectively to counter bad attitudes, possibly change them, and forge solidarity against the forces of intolerance.
College administrators may find speech codes attractive as a quick fix, but as one critic put it: "Verbal purity is not social change." Codes that punish bigoted speech treat only the symptom: The problem itself is bigotry. The ACLU believes that instead of opting for gestures that only appear to cure the disease, universities have to do the hard work of recruitment to increase faculty and student diversity; counseling to raise awareness about bigotry and its history, and changing curricula to institutionalize more inclusive approaches to all subject matter.
Free speech rights are indivisible. Restricting the speech of one group or individual jeopardizes everyone's rights because the same laws or regulations used to silence bigots can be used to silence you. Conversely, laws that defend free speech for bigots can be used to defend the rights of civil rights workers, anti-war protesters, lesbian and gay activists and others fighting for justice. For example, in the 1949 case of Terminiello v. Chicago, the ACLU successfully defended an ex-Catholic priest who had delivered a racist and anti-semitic speech. The precedent set in that case became the basis for the ACLU's successful defense of civil rights demonstrators in the 1960s and '70s.
The indivisibility principle was also illustrated in the case of Neo-Nazis whose right to march in Skokie, Illinois in 1979 was successfully defended by the ACLU. At the time, then ACLU Executive Director Aryeh Neier, whose relatives died in Hitler's concentration camps during World War II, commented: "Keeping a few Nazis off the streets of Skokie will serve Jews poorly if it means that the freedoms to speak, publish or assemble any place in the United States are thereby weakened."
Not so. Only a handful of the several thousand cases litigated by the national ACLU and its affiliates every year involves offensive speech. Most of the litigation, advocacy and public education work we do preserves or advances the constitutional rights of ordinary people. But it's important to understand that the fraction of our work that does involve people who've engaged in bigoted and hurtful speech is very important: Defending First Amendment rights for the enemies of civil liberties and civil rights means defending it for you and me.
The U.S. Supreme Court did rule in 1942, in a case called Chaplinsky v. New Hampshire, that intimidating speech directed at a specific individual in a face-to-face confrontation amounts to "fighting words," and that the person engaging in such speech can be punished if "by their very utterance [the words] inflict injury or tend to incite an immediate breach of the peace." Say, a white student stops a black student on campus and utters a racial slur. In that one-on-one confrontation, which could easily come to blows, the offending student could be disciplined under the "fighting words" doctrine for racial harassment.
Over the past 50 years, however, the Court hasn't found the "fighting words" doctrine applicable in any of the hate speech cases that have come before it, since the incidents involved didn't meet the narrow criteria stated above. Ignoring that history, the folks who advocate campus speech codes try to stretch the doctrine's application to fit words or symbols that cause discomfort, offense or emotional pain.
Symbols of hate are constitutionally protected if they're worn or displayed before a general audience in a public place -- say, in a march or at a rally in a public park. But the First Amendment doesn't protect the use of nonverbal symbols to encroach upon, or desecrate, private property, such as burning a cross on someone's lawn or spray-painting a swastika on the wall of a synagogue or dorm.
In its 1992 decision in R.A.V. v. St. Paul, the Supreme Court struck down as unconstitutional a city ordinance that prohibited cross-burnings based on their symbolism, which the ordinance said makes many people feel "anger, alarm or resentment." Instead of prosecuting the cross-burner for the content of his act, the city government could have rightfully tried him under criminal trespass and/or harassment laws.
The Supreme Court has ruled that symbolic expression, whether swastikas, burning crosses or, for that matter, peace signs, is protected by the First Amendment because it's "closely akin to 'pure speech.'" That phrase comes from a landmark 1969 decision in which the Court held that public school students could wear black armbands in school to protest the Vietnam War. And in another landmark ruling, in 1989, the Court upheld the right of an individual to burn the American flag in public as a symbolic expression of disagreement with government policies.
Historically, defamation laws or codes have proven ineffective at best and counter-productive at worst. For one thing, depending on how they're interpreted and enforced, they can actually work against the interests of the people they were ostensibly created to protect. Why? Because the ultimate power to decide what speech is offensive and to whom rests with the authorities -- the government or a college administration -- not with those who are the alleged victims of hate speech.
In Great Britain, for example, a Racial Relations Act was adopted in 1965 to outlaw racist defamation. But throughout its existence, the Act has largely been used to persecute activists of color, trade unionists and anti-nuclear protesters, while the racists -- often white members of Parliament -- have gone unpunished.
Similarly, under a speech code in effect at the University of Michigan for 18 months, white students in 20 cases charged black students with offensive speech. One of the cases resulted in the punishment of a black student for using the term "white trash" in conversation with a white student. The code was struck down as unconstitutional in 1989 and, to date, the ACLU has brought successful legal challenges against speech codes at the Universities of Connecticut, Michigan and Wisconsin.
These examples demonstrate that speech codes don't really serve the interests of persecuted groups. The First Amendment does. As one African American educator observed: "I have always felt as a minority person that we have to protect the rights of all because if we infringe on the rights of any persons, we'll be next."
Bigoted speech is symptomatic of a huge problem in our country; it is not the problem itself. Everybody, when they come to college, brings with them the values, biases and assumptions they learned while growing up in society, so it's unrealistic to think that punishing speech is going to rid campuses of the attitudes that gave rise to the speech in the first place. Banning bigoted speech won't end bigotry, even if it might chill some of the crudest expressions. The mindset that produced the speech lives on and may even reassert itself in more virulent forms.
Speech codes, by simply deterring students from saying out loud what they will continue to think in private, merely drive biases underground where they can't be addressed. In 1990, when Brown University expelled a student for shouting racist epithets one night on the campus, the institution accomplished nothing in the way of exposing the bankruptcy of racist ideas.
Yes. The ACLU believes that hate speech stops being just speech and becomes conduct when it targets a particular individual, and when it forms a pattern of behavior that interferes with a student's ability to exercise his or her right to participate fully in the life of the university.
The ACLU isn't opposed to regulations that penalize acts of violence, harassment or intimidation, and invasions of privacy. On the contrary, we believe that kind of conduct should be punished. Furthermore, the ACLU recognizes that the mere presence of speech as one element in an act of violence, harassment, intimidation or privacy invasion doesn't immunize that act from punishment. For example, threatening, bias-inspired phone calls to a student's dorm room, or white students shouting racist epithets at a woman of color as they follow her across campus -- these are clearly punishable acts.
Several universities have initiated policies that both support free speech and counter discriminatory conduct. Arizona State, for example, formed a "Campus Environment Team" that acts as an education, information and referral service. The team of specially trained faculty, students and administrators works to foster an environment in which discriminatory harassment is less likely to occur, while also safeguarding academic freedom and freedom of speech.
The ACLU believes that the best way to combat hate speech on campus is through an educational approach that includes counter-speech, workshops on bigotry and its role in American and world history, and real -- not superficial -- institutional change.
Universities are obligated to create an environment that fosters tolerance and mutual respect among members of the campus community, an environment in which all students can exercise their right to participate fully in campus life without being discriminated against. Campus administrators on the highest level should, therefore,
- speak out loudly and clearly against expressions of racist, sexist, homophobic and other bias, and react promptly and firmly to acts of discriminatory harassment;
- create forums and workshops to raise awareness and promote dialogue on issues of race, sex and sexual orientation;
- intensify their efforts to recruit members of racial minorities on student, faculty and administrative levels;
- and reform their institutions' curricula to reflect the diversity of peoples and cultures that have contributed to human knowledge and society, in the United States and throughout the world.
ACLU Executive Director Ira Glasser stated, in a speech at the City College of New York: "There is no clash between the constitutional right of free speech and equality. Both are crucial to society. Universities ought to stop restricting speech and start teaching."
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