University of Vermont

Garrett/Silenced Voices

Silenced Voices: Hate Speech Codes on Campus

Deanna M. Garrett
Students victimized by hate speech suffer great emotional and physical harm and may not develop in the ways typical of their peers. Because colleges and universities have the responsibility of ensuring safe environments in which students can learn and develop, many institutions have created hate speech codes to limit harmful speech. This article explores the tumultuous history of campus speech codes, landmark court cases, and their implications for higher education and student affairs.

"Die all u fuckin fagots." "Queers suck." Students at The University of Vermont found these words scrawled on posters advertising the University’s National Coming Out Week celebration. Additionally, students found rainbow flag posters defaced with a black "X" marked through one and a swastika sliced through another. Although these incidents were not targeted toward a specific individual, they did target the large population of gay, lesbian, bisexual, and transgendered students in the community. Such messages had a profound negative effect on individuals within the University. These incidents and the hundreds of others that occur each year on college campuses are alarming. Higher education institutions are taking action to combat expressions of hatred, while still attempting to maintain an environment in which all opinions are valued.

Introduction

One of the most valued amendments afforded by the U.S. Constitution is the First Amendment, which guarantees the freedom of speech. Many individuals view this freedom as the most important and essential characteristic of being American; to restrict the freedom of speech is simply un-American. Opponents of hate speech codes argue if the government restricts speech in any manner, it will inevitably include speech that is constitutionally protected. In effect, one would cast the net too widely and limit the speech of others that is not specifically hate speech.

Colleges and universities across the United States experienced an alarming increase in hate speech and harassment during the late 1980s. Because victims of hate speech may suffer severe emotional and psychological distress (Matsuda, 1993), many institutions took action by creating campus hate speech codes. These codes sought to restrict speech that is both hateful and harmful to individuals. One by one, however, the courts struck down these speech policies, declaring them unconstitutional. This article explores the history and foundations of hate speech codes, landmark court cases, and their implications for colleges and universities. The underlying theories of speech regulations will also be examined.

Defining Hate Speech

Before institutions can regulate hate speech, they must first define it. Colleges and universities have outlined what constitutes hate speech in both broad and narrow terms. "Hate speech is an imprecise term that generally includes verbal and written words and symbolic acts that convey a grossly negative assessment of particular persons or groups based on their race, gender, ethnicity, religion, sexual orientation, or disability" (Kaplin & Lee, 1996, p. 509). Matsuda (1993) offers three characteristics of racist speech: the message suggests racial inferiority; it is directed against a historically oppressed group; and the message is hateful, degrading, and persecutory in nature. Though Matsuda refers directly to racist speech, her criteria may include any form of hate speech. Most importantly, speech directed against an historically oppressed group or person demonstrates the relationship between hate speech, power, and dominance (Matsuda).

Hate speech is a real harm to many oppressed individuals. The examples of racist and other hateful speech are numerous. Terms such as "nigger," "faggot," "kike," and "jap" are commonly used to dehumanize minority individuals. At the University of Michigan, unidentified individuals distributed flyers which declared "open season" on blacks and characterized them as "saucer lips, porch monkeys, and jigaboos" (Campus Speech Codes, 1995, p. 115); white male students followed an African American woman across campus shouting, "I’ve never tried a nigger before" (Strossen, 1994, p. 184); and a student disc jockey allowed a racist joke to be broadcast on the campus radio station: "who are the most famous black women in history? Aunt Jemima and Mother Fucker" (Lawrence, 1994, p. 54).

The University of Michigan created a broadly defined speech code to combat discriminatory harassment and hate speech. The policy prohibits "any behavior, verbal or physical, that stigmatizes or victimizes an individual on the basis of race, ethnicity, religion, sex, sexual orientation, creed, national origin, ancestry, age, marital status, handicap, or Vietnam era veteran status" (Campus Speech Codes, 1995, p. 115). Students could be disciplined for such behavior that interferes with an individual's academic pursuits, participation in University events, or creates an "intimidating, hostile, or demeaning environment" (p. 116) for the student. Institutions have the responsibility of ensuring all their students are able to learn and develop in environments that are supportive of the academic mission of the university. The difficulty arises when insti-tutions attempt to determine whether an individual has been "stigmatized" or "victimized."

Stanford University, however, narrowly defined its hate speech code. This code sought to regulate hate speech without restricting speech protected by the First Amendment. According to Stanford’s policy, in order to be considered hateful, speech must meet three conditions: first, the speaker must intend to stigmatize or harm another individual based upon specific characteristics (e.g., race, gender, sexual orientation); second, the speech must be directly addressed to the individual; and finally, the speech must convey hate or contempt for the individual at whom it is directed (Altman, 1995). By designing specific criteria, Stanford’s hate speech code targeted only that which was intended to harm specific individuals.

Fighting Words Doctrine

The Stanford University hate speech code is closely modeled after the federal fighting words doctrine. The original doctrine prohibited any language that could incite an individual to react with violence. It is one of the only legal exceptions to the First Amendment. Currently, for speech to be considered fighting words, it must meet several criteria: the speech must be personally abusive; it must be descriptive and directed specifically towards the targeted individual; it must be delivered face to face with the individual; and it must be intended to cause harm or immediate response by the victim (Strossen, 1994). Because the criteria are difficult to prove, applying the fighting words doctrine to a particular case is challenging. The instigator may easily deny or "explain away" the intent of the speech by stating it was not targeted towards a specific individual or by stating it was not face to face. Much of "hate speech" is written, not verbalized.

Defining the boundaries of what constitutes hate speech can lead one down a slippery slope. The questions at issue are: what is hate speech, who decides how to define it and where to draw the boundaries, and based upon what criteria? Most often, the power to define what constitutes hate speech is in the hands of upper- or middle-class, white, heterosexual men. The fighting words doctrine does not take into account the unique experiences of women and people of color, including different reactions to violence and hate speech. Charles Lawrence (1993) argues fighting words are based on the dominant paradigm of the white male who reacts with violence: "The fighting words doctrine’s responsiveness to this male stance in the world and its blindness to the cultural experience of women is another example of how neutral principles of law reflect the values of those who are dominant" (p. 69).

Constitutional Challenges to Hate Speech Codes

Doe v. University of Michigan

In 1989, Doe v. University of Michigan was the first case involving campus hate speech to come before the courts. Doe, a psychology graduate student at the University of Michigan, challenged the University’s speech code stating it was too broad and vague. Doe feared his controversial theories--arguing that gender differences are biologically based--would be considered in violation of the code. He asserted the code illegally silenced his ability to freely discuss these theories. The Michigan policy prohibited behavior that "stigmatizes or victimizes" individuals on the basis of specific characteristics. In addition, the policy prohibited "such behavior if it ‘involves an express or implied threat to’ or ‘has the purpose or reasonably foreseeable effect of interfering with’ or ‘creates an intimidating, hostile, or demeaning environment’ for individual pursuits in academic, employment, or extracurricular activities" (Kaplin & Lee, 1995, p. 511). The court struck down the policy, declaring it unconstitutional because its criteria included protected speech. This ruling was a devastating blow to many institutions and supporters of campus hate speech codes.

R.A.V. v. City of St. Paul

The first case brought before the U.S. Supreme Court concerning hate speech was the 1992 decision of R.A.V. v. City of St. Paul. This case invalidated a city ordinance prohibiting the placement of symbols, objects, or graffiti on public or private property which one reasonably knows will incite anger on the basis of one’s race, gender, color, creed, or religion (Hartman, 1993). R.A.V. challenged the statute as being too broad. However, the ordinance was invalidated not on the basis of "overbreadth," but because of its discrimination based on viewpoint and content. The Court ruled that speech cannot be regulated solely because its content is objectionable to an individual. This notion of "content-neutrality" approach to one’s beliefs holds that "those in authority should not be permitted to limit speech on the ground it expressed a viewpoint that is wrong, evil, or otherwise deficient" (Altman, 1995, p. 123).

Sigma Chi Fraternity v. George Mason University

Another landmark case was Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University in 1993 (Kaplin & Lee, 1995). The Sigma Chi fraternity sponsored an "ugly woman contest" in which a fraternity member wore black face and characterized himself as a black woman. Administrators at George Mason disciplined the students and imposed weighty sanctions on the fraternity. The trial court ruled that although the University has the responsibility to maintain an educational environment free of racial discrimination, it may not selectively limit speech. This ruling is similar to that of R.A.V. v. City of St. Paul, which concluded that the code targeted speech based on its unpopular viewpoint (Kaplin & Lee).

Protected and Unprotected Speech

Kaplin and Lee, authors of The Law of Higher Education (1995), outline five major free speech principles that severely limit constitutionally legal speech regulations. The first principle prohibits speech restriction on the basis of message content. Under the second principle, "the emotional content as well as the cognitive content of speech is protected from government regulation" (Kaplin & Lee, p. 513). Third, the government cannot prohibit speech merely because many individuals may find it offensive. Fourth, the government may not restrict speech that creates a silencing effect on free speech due to its vagueness or overbreadth. Finally, under the fifth principle, if the government regulates speech on the basis of legal restrictions such as the fighting words doctrine, it cannot selectively restrict certain fighting words. This principle is often considered the "underbreadth" principle and resulted from the R.A.V. case (Kaplin & Lee).

With such clear principles of what constitutes limited speech, colleges and universities must recognize what can and cannot be regulated. Institutions can regulate hateful behavior and conduct, as only speech is protected by the Constitution. Unprotected acts include physical assaults (e.g., kicking, hitting, shoving), blocking pathways, and destroying or defacing property. As a result, institutions may indirectly restrict hate speech that accompanies this behavior. Homophobic epithets scrawled across a student’s door may be subject to discipline based on the action. "While the institution cannot prohibit particular messages, it can prohibit harmful acts; such acts therefore may be covered under neutral regulations governing such non-speech matters as destruction and defacement of property or physical assaults of persons" (Kaplin & Lee, 1995, p. 515).

Additionally, colleges and universities may regulate speech that constitutes broadly defined fighting words or otherwise slanderous, obscene, or libelous language (Kaplin & Lee, 1995). The regulation, however, must include all fighting words principles as defined by the R.A.V. case. However, these regulations may not limit speech based on content or viewpoint. Institutions may also restrict hate speech on the basis of time, place, and manner. For example, the University of Vermont designates certain public areas for "symbolic structures" and outlines specific procedures for reserving such spaces. In addition, universities may also limit hate speech that occurs in private spaces, when occupants may be considered captive audiences (Kaplin & Lee). Finally, institutions may restrict speech that is intimidating or threatening to individuals and creates an environment in which the individuals fear for their physical safety. "Such activities, even though carried out in part through speech, may be reached under code provisions dealing generally with physical assaults or other threats of physical harm to person or property" (Kaplin & Lee, p. 515).

Facets of the Debate

Freedom of Speech

Opponents of free speech codes argue such regulation employs a paternalistic approach, indicating that oppressed individuals are not capable of protecting themselves. It follows that those in power should decide what individuals need and how to meet those needs. In addition, opponents of speech codes argue that limiting hate speech does not solve the problem, and may mask the underlying injustice. Many hate speech code opponents also reject the fighting words doctrine, stating that individuals must be held accountable for their own actions; they argue speech should never be allowed to incite violence.

Finally, restricting speech may have the effect of silencing dialogue among individuals. Paulo Freire (1970), the renowned critical pedagogue and social activist, contends that dialogue is the key to reaching critical consciousness, creating change, and respecting humanity. If the government imposes regulations on what can and cannot be said, individuals may be afraid to speak out or exchange ideas in true dialogue. Without this dialogue there can be no critical thinking, and therefore, no empowerment of individuals to overcome their oppression.

Restricting Hate Speech

Hate speech is not defined by "isolated incidents" or "merely jokes"—it is specifically intended to degrade and cause harm to individuals. In the context of historical oppression and discrimination, hate speech has larger implications for all members of the targeted group, not just the individual. Victims of hate speech suffer both emotionally and physically. "Psychological responses to such stigmatization consists of feelings of humiliation, isolation, and self-hatred" (Delgado, 1993, p. 91). Hate speech takes away human dignity and self-worth, and causes self-doubt.

For students at colleges and universities, the implications of hate speech are significant. Individuals subjected to harassing environments in which hate speech exists may not be able to focus their attention on academics. They cannot grow and develop in ways typical of their peers and are forced to live in hostile communities. Students who are busy worrying about their physical and emotional safety have no time or energy to participate in university activities. Student affairs professionals have an obligation to ensure a safe environment for students. If institutions value access to education for all students, they must not allow hate speech to interfere with such goals. Although one would want to protect the right to free speech as much as possible, there are certain circumstances in which the benefits of restricting speech outweigh the costs. When lives are at risk or an action is harmful to others, individuals’ rights are outweighed: "the only purpose for which power can be rightfully exercised over any member of a civilized community against his will is to prevent harm to others" (Mill, 1989, p. 13).

Laws are meant to protect people. Hate speech codes do just that; they protect individuals from racist and other hateful speech. Many opponents of hate speech codes argue that the right to free speech should never be compromised. However, certain laws already restrict free speech, and appropriately so. Speech laws prohibit falsely yelling "fire!" in a crowded area because it would cause panic and an ensuing stampede. In addition, the government also regulates speech that is libelous, slanderous, or false in nature. That we do not limit hateful speech against people of color, gays and lesbians, and other targeted groups seems suspect in light of these legal speech restrictions.

Hate speech codes do not seek to limit constructive dialogue, which is necessary for gaining knowledge and reaching critical consciousness (Freire, 1970). They seek to protect individuals from harmful speech and allow such individuals to feel safe speaking out. By allowing only the most powerful individuals to speak, hate speech effectively silences the voices of minorities and maintains the status quo. Hate speech is not authentic dialogue (Freire, 1970) and therefore, does not deserve protection. According to Freire, dialogue is "an act of creation, it must not serve as a crafty instrument for the domination of one person by another" (p. 70).

The Silencing Effect

Advocates of hate speech codes contend that the inclusion of racist, sexist, and homophobic speech serves only to silence others’ voices. "Such speech not only interferes with equal educational opportunities, but also deters the exercise of other freedoms, including those secured by the First Amendment" (Strossen, 1994, p. 193). Faced with hate speech, many individuals are silenced or forced to flee, rather than engaging in dialogue (Lawrence, 1993). In higher education, dialogue is key to learning and gaining new knowledge. Students engage in dialogue with one another, challenge each other, and propose new ideas. However, racist speech does not invite this exchange but seeks to silence non-dominant individuals.

Post (1994) outlines three ways in which minority groups are silenced by hateful speech:

(1) Victim groups are silenced because their perspectives are systematically excluded from the dominant discourse; (2) victim groups are silenced because the pervasive stigma of racism systematically undermines and devalues their speech; and (3) victim groups are silenced because the visceral "fear, rage, [and] shock" of racist speech systematically preempts response. (p. 143)

Critical Race Theory

One useful approach to the hate speech debate is critical race theory. "Critical race theory is grounded in the particulars of a social reality that is defined by our experiences and the collective historical experience of our communities of origin" (Lawrence, Matsuda, Delgado, & Crenshaw, 1993, p. 3). It emerged in opposition to the concepts of race and racism held by the dominant paradigm; it comes from those who are oppressed. Critical race theory acknowledges the historical context of racism and its effect on oppressed groups. This history and therefore the meanings of race and racism are socially constructed. Certain hateful messages derive their power from this historical and cultural context (Lawrence et al.). In effect, hate speech silences and oppresses the targeted groups. To counter this silence, critical race theory seeks to create space and opportunities for silenced voices (Lawrence et al.).

Conclusions

The question still remains: what are the implications of hate speech codes for colleges and universities and what legal recourse can institutions take against students who engage in hateful speech? Neiger, Palmer, Penney, and Gehring (1998) outline four forms of hate speech which can be regulated by colleges and universities: first, institutions may limit any speech which constitutes "fighting words" as defined by the R.A.V. v. City of St. Paul court case; second, colleges and universities may limit speech on the basis of time, place, and manner; third, they may prohibit demonstrations which disrupt normal activity or infringe on the rights of others; and finally, institutions may restrict behavior that "threatens individuals’ personal safety, academic efforts, employment, or participation in university activities" (p. 203). In addition, the Supreme Court ruled in Wisconsin v. Mitchell that colleges and universities may enhance sanctions for behavior that intentionally targets individuals as a result of bias (Neiger et al.).

Because of the complexities surrounding the topic of hate speech codes on college and university campuses, only a small portion of the issues could be explored in this paper. Because codes can be written to control hate speech indirectly, student affairs professionals should remain sensitive to the experiences of students victimized by hate speech. Furthermore, the student affairs practitioner must be cognizant of the courts’ interpretation of hate speech codes and work to protect and maintain the integrity of everyone on campus. It is important to recognize that hate speech codes will not solve the problem of racist, sexist, homophobic, and other hateful speech on campus. They will, however, begin to address the problem.

References

Altman, A. (1995). Liberalism and campus hate speech. In J. Arthur & A. Shapiro (Eds.), Campus wars: Multiculturalism and the politics of difference (pp. 122-134). San Francisco: Westview Press.

Campus speech codes: Doe v. University of Michigan (1995). In J. Arthur & A. Shapiro (Eds.), Campus wars: Multiculturalism and the politics of difference (pp. 114-121). San Francisco: Westview Press.

Delgado, R. (1993). Words that wound: A tort action for racial insults, epithets, and name calling. In M. J. Matsuda, C. R. Lawrence, R. Delgado, & K. W. Crenshaw (Eds.), Words that wound: Critical race theory, assaultive speech, and the first amendment (pp. 89-110). San Francisco: Westview Press.

Freire, P. (1970). Pedagogy of the oppressed. New York: Continuum.

Hartman, R. G. (1993). Hateful expression and first amendment values: Towards a theory of constitutional constraint on hate speech at colleges and universities after R.A.V. v. St. Paul. Journal of College and University Law, 19(4) 343-371.

Kaplin, W. A., & Lee, B. A. (1995). The law of higher education (3rd ed.). San Francisco: Jossey-Bass.

Lawrence, C. R. (1993). If he hollers let him go: Regulating racist speech on campus. In M. J. Matsuda, C. R. Lawrence, R. Delgado, & K. W. Crenshaw (Eds.), Words that wound: Critical race theory, assaultive speech, and the first amendment (pp. 53-86). San Francisco: Westview Press.

Lawrence, C. R., Matsuda, M. J., Delgado, R., & Crenshaw, K. W. (1993). Introduction. In M. J. Matsuda, C. R. Lawrence, R. Delgado, & K. W. Crenshaw (Eds.), Words that wound: Critical race theory, assaultive speech, and the first amendment (pp. 1-15). San Francisco: Westview Press.

Matsuda, M. J. (1993). Public response to racist speech: Considering the victim’s story. In M. J. Matsuda, C. R. Lawrence, R. Delgado, & K. W. Crenshaw (Eds.), Words that wound: Critical race theory, assaultive speech, and the first amendment (pp. 17-52). San Francisco: Westview Press.

Mill, J. S. (1989). On liberty and other writings. New York: Cambridge University Press.

Neiger, J. A., Palmer, C., Penney, S., & Gehring, D. D. (1998). Addressing hate speech and hate behaviors in codes of conduct: A model for public institutions. NASPA Journal, 35, 193-206.

Strossen, N. (1994). Regulating racist speech on campus: A modest proposal? In H. L. Gates, A. P. Griffin, D. E. Lively, R. C. Post, W. E. Rubenstein, & N. Strossen (Eds.), Speaking of race, speaking of sex (pp. 181-256). New York: New York University Press.

Deanna M. Garrett graduated from the University of Virginia in 1997 with a bachelor's degree in Religious Studies and a minor in Biology. She is a second-year HESA student and a Graduate Assistant in the Department of Residential Life.

Last modified July 29 2002 11:48 AM

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