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.