In recent weeks, a number of public colleges and universities have been criticized by students, faculty, and alumni over their responses to a range of equity and diversity issues. In many cases, institutions have been criticized for their failure to respond to speech of an aggressive, offensive, derogatory, or outright racist nature that is directed at specific groups. Media and activists often refer to such speech as “hate speech,” and it takes little effort to locate editorials arguing the First Amendment does not protect such “hate speech.” However, as has been clear since the Supreme Court’s 1991 decision in R.A.V. v. City of St. Paul, Minnesota, 112 S. Ct. 2538 (1991), there is no “hate speech” exception to the First Amendment. Public institutions must take care not to violate First Amendment rights as they strive to create equitable, diverse, and tolerant campuses.
In R.A.V., the Supreme Court struck down as unconstitutional a municipal ordinance that purported to ban cross burning, or displays of other racist symbols, such as the Nazi swastika, when the displaying party had “reasonable grounds to know [the display] arouses anger, alarm or resentment in others.” According to the Court, the ordinance amounted to prohibited viewpoint discrimination because it punished individuals who spoke on disfavored subjects such as race, color, and religion, while permitting abusive invective not pertaining to these topics.
Since R.A.V., courts have cautioned—in the specific context of evaluating campus speech codes—that the First Amendment “protects a wide variety of speech that listeners may consider deeply offensive, including statements that impugn another’s race or national origin or that denigrate religious beliefs.” See Saxe v. State College Area Sch. Dist., 240 F.3d 200, 206 (3d Cir. 2001); see also Gonzales v. Maricopa County Cmty. College Dist., 605 F.3d 702, 708 (9th Cir. 2009) (“[I]t is axiomatic that the government may not silence speech because the ideas it promotes are thought to be offensive.”). As commentators and the ACLU have noted, public institutions that ban speech on the basis that it is “offensive,” or “hateful” almost certainly do so in violation of the First Amendment.
While the First Amendment protects a great deal of offensive and upsetting speech, public institutions can impose reasonable time, place, and manner restrictions on speech. Further, public institutions remain free to regulate—by prohibition or otherwise—classes of speech the Supreme Court has held enjoy little or no constitutional protection—including defamation/ slander/ libel, obscenity, child pornography, “fighting words,” “true threats” of illegal conduct, or speech that would incite imminent illegal conduct. However, these classes of speech are narrow and not synonymous with the concept of “hate speech” as commonly used in the media. Private institutions, not bound by the First Amendment, retain greater ability to regulate even offensive and upsetting speech.
What This Means to You
Creating an equitable, diverse, and tolerant campus is a laudable goal. However, the First Amendment limits the ability of public colleges and universities to do so by punishing speech commonly referred to as “hate speech.” Administrators considering campus speech policies should consult with a higher education attorney to ensure such policies comply with free speech rights.