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Monday, August 10, 2020

Hate Speech Returns to Campus

Students are returning to campus soon, and with them they are sure to bring more controversies over where the lines are drawn between free speech and speech that may be censured and censored.

Just last week, a controversy broke out at Princeton about a student's use of the n-word in social media. A white Princeton student responded on Facebook to a Black Fordham graduate who posted "We know you hate n---s" by saying that the Black graduate had gone to prep school and could not "speak for the n---s." This incident followed publication by a Princeton classics professor of an op-ed questioning some of the racial justice proposals made in a faculty petition to Princeton administrators; in that op-ed, the Professor called one Black student group a "terrorist organization."

Inevitably, Princeton administrators issued statements deploring the speech used in both incidents. With regard to the white student's use of the n-word, administrators branded it “contrary to Princeton’s commitment to stand for inclusivity and against racism” but said that the speech nonetheless did not violate university policy. Similarly, the President of Princeton condemned the classics professor's labeling of the student group as a terrorist organization, calling it "irresponsible and offensive," but the President said the speech was nonetheless protected by university policy.  

Many students rejected these conclusions on the grounds that a university committed to inclusion cannot tolerate hate speech. Their views seem to mirror those found in a recent survey:  81 percent of students on college campuses said that colleges should not punish offensive speech, but when asked whether colleges should restrict racial slurs, 78 percent said yes.  Moreover, seventy-one percent of students surveyed believed colleges should be able to restrict the wearing of costumes that involve racial or ethnic stereotypes. 

Unlike other campus free speech controversies, Princeton's are not governed by the First Amendment, because Princeton is a private university. State universities like mine are forbidden by the First Amendment from punishing protected speech, but Princeton is not. Nonetheless, Princeton seems to have adopted policies that protect free speech on its campus to the same extent the First Amendment does.

In my experience, many students and faculty, among others, are often surprised to discover the First Amendment protects a great deal of deeply offensive and even hateful speech. Indeed, the Supreme Court has stated: "If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

Though many countries criminalize hate speech—that is, speech that demeans or dehumanizes a person or group based on their race, religion, ethnicity, sex, or sexual orientation—hate speech simply is not a legal category in the United States. Hate speech uttered within a classroom can be punished because it substantially disrupts the learning environment, but hate speech uttered by students speaking as citizens in public spaces—including online spaces--usually cannot. In that situation, state universities can only punish a student’s hate speech if it happens to fall into a recognized category of speech that is unprotected by the First Amendment. These categories include incitement, threats, defamation, discrimination against an individual, or fighting words.  The Princeton student’s Facebook post occurred in an online conversation about a public issue and did not fall into any of these categories. Had he been a public university student, the First Amendment would tie the hands of administrators seeking to censor or discipline him, leaving them to resort to counterspeech asserting that his speech did not comport with their values.

To many students today, the First Amendment's recommended response to hate speech is no longer satisfactory. Throughout our history, the First Amendment has asked us to put up with speech that evokes strong emotions based on a belief in the protective and healing power of discourse and the ability and willingness of citizens to come together and speak out against hate. What’s happening now in our country—with engaged students and other citizens speaking out and marching against racist violence, racist policies, and racist iconography—is exactly what our First Amendment envisions. In the long run, counterspeech is supposed to drown out hateful voices and sweep away repugnant ideas through the process of public discourse. 

Yet, to many critics, the victory of counterspeech over hate speech seems uncertain and counterspeech seems an insufficient remedy for the emotional wounds that hate speech causes. What they would prefer is an authoritative declaration that some speech, and some thoughts, are outside the bounds of civilized discourse and need not be tolerated. They take little solace from the arguments that I find compelling: that we have chosen this path because the power to censor is more often used to protect the powerful than the powerless, and we trust citizens more than we trust our governments to decide which ideas will prevail in the competition for adherents. Moreover, consensus formed through public discourse lends legitimacy to policy outcomes. Critics of the counterspeech cure would seemingly reject the lofty rhetoric of Justice Louis Brandeis, who once wrote that the First Amendment presumes “that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones.” From their perspective, "evil counsels" have for too long drowned out good ones, and government power should be used to drive out the evil counsel of racists for good. The problem with this stance is that it depends on the benevolence and good faith of our government leaders or administrators in deciding whose views are so far out of bounds they can't be tolerated. Such benevolence or wisdom or restraint is certainly not something I take for granted, especially not now. 

Nevertheless, I know that in the war of generations, the younger always wins.  I just wonder what victory looks like.

Posted by Lyrissa Lidsky on August 10, 2020 at 01:25 AM in Constitutional thoughts, Culture, Current Affairs, First Amendment, Lyrissa Lidsky, Web/Tech | Permalink

Comments

"In the long run, counterspeech is supposed to drown out hateful voices and sweep away repugnant ideas through the process of public discourse."

Is this proposition true?

If it were, would not public discourse have been cleansed of all "hateful voices" and "repugnant ideas" by now, given millenia of public discourse?

Perhaps human history is too unfree. Just take America: Would there not be a noticeable decrease in hate and repugnancy over time since the current 1st amendment jurisprudence took hold? (Pick your start date).

In other words, I doubt this proposition is true.

Hate is natural in the human heart. For evidence, see the feelings we too often have towards our political enemies.

Posted by: Commentationalist | Aug 10, 2020 4:59:32 PM

Do you think most incoming college first-years have read Justice Brandies' and Brennan's major opinions and dissents on free speech in high school to prepare them for a life of liberalism? If not, why?

Do you think after Trump free-speech con-law will be a required high school graduation requirement?
Or do you think on the contrary that the number of college graduates familiar with Justices Brandies and Brennan will drop to zero by the time Biden nominates his first justice?

Posted by: Allen Rutgers | Aug 10, 2020 4:05:15 PM

anon, yes, but one must admit, that effectively, hate speech, is sub category of hate crime. So, effectively, it does exist, although formally, one may doubt it indeed. But, hate speech, as legal item, must be incorporated many times, in rulings, or just legal analysis. Suppose, the mental state, of known racist.His history would prove it, and support his guilt.

Thanks

Posted by: El roam | Aug 10, 2020 1:43:38 PM

El roam, don't those examples just show that speech can fall into more than one category? Sometimes, things that would qualify as "hate speech" if such a category existed in U.S. law would *also* qualify as incitement. But just because there is overlap between the two categories does not mean that hate speech is de facto a legal category. There is plenty of hate speech that is not incitement, and plenty of incitement that is not hate speech. The same is true of hate crimes--many hate crimes don't involve speech acts, and much hateful speech is not criminal.

Posted by: anon | Aug 10, 2020 11:43:49 AM

Just to illustrate concerning incitement:

In the sixth circuit, recently, I quote, what was it all about:

" Plaintiffs participated in a Trump for President campaign rally in Louisville in March 2016 . . . with the purpose of protesting. Perceived to be disruptive, they were unceremoniously ushered out after then-candidate Donald J. Trump said, “Get ’em out of here.” Plaintiffs were pushed and shoved by members of the audience as they made their exit and now seek damages from Trump alleging his actions amounted to “inciting to riot,” a misdemeanor under Kentucky law...."

So, maybe, there is no formally, title of such, as "hate speech". But, effectively, it does exist. For, such policies, restrict the free speech. I don't see how it does really matter.

So, suppose, one would incite, on racial basis, and cause violence. Then, he would be liable, for inciting racially, that has caused eruption of violence.And the racial element, would become main factor. For, it was the main trigger for the violence the judge would rule.

So, it is rather, that formally, it doesn't exist. But, effectively, it does. Let alone, in process of legislation.

Here to the ruling:

https://www.opn.ca6.uscourts.gov/opinions.pdf/18a0202p-06.pdf

Posted by: El roam | Aug 10, 2020 9:50:44 AM

Just to illustrate it. The DOJ, has specific legal category:

"Hate crimes". Now in that category, they pursue the policy of indicting for hate crimes, I quote:

" The Department of Justice aggressively prosecutes hate crimes, which include acts of physical harm and specific criminal threats motivated by animus based on race, color, national origin, religion, gender, sexual orientation, gender identity, or disability."

So, it must involve effectively, issues of free speech. For, you must restrain de jure and de facto, hate speech, in order, to pursue such policy. Here:

https://www.justice.gov/crt/hate-crimes-prosecutions

Beyond it, if incitement in some cases, directly has lead to violence, then, the person inciting, is liable ( civil action for example). Then, it is the same. It does restrain free speech, hate speech, as such, de jure and de facto.

I shall illustrate later......

Thanks

Posted by: El roam | Aug 10, 2020 9:34:28 AM

Important issue these days indeed. Many complicated issues raised in that post. Just worth to put two issues, in more accurate context:

First, that op-ed of that Princeton professor, refered rather to specific group: "Black Justice League" not just black students. And he was refering rather to general policy and not only free speech issues, like, I quote:

"I defy anyone who signed that letter, directly or indirectly, to send his or her children to a college or university without campus security. Fantasizing that you can do without the police is the height of arrogant privilege."

Many issues mixed there, not only free speech by the way.

And worth to note, in Whitney v. California, the issue wasn't really free speech v. counterspeech. But rather, to what extent free speech that may endanger public order and safety can be allowed. According to the dissenting (and concurring) only if immenent danger is proven ( not vague one in the future) free speech is untolerabel, for it is not an absolute right.

Finally, not so clear, that assertion that, I quote:

" ...hate speech simply is not a legal category in the United states"

For it is. Maybe not in the federal level. But state level. And states, must adhere to first amendment. So, there is.

Thanks

Posted by: El roam | Aug 10, 2020 9:20:53 AM

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