Offensive Speech on Campus

Hate Speech

Note to Administrators: This module primarily discusses the reasons why offensive speech is protected under the First Amendment. We recommend pairing this module with the “Limits to Free Speech” module, which is a more in-depth conversation on the line between protected speech and unprotected speech.

Introductory Statement

When it comes to the right to free expression, college is very different from high school. As adults and as college students, you are more likely to be exposed to a much wider variety of ideas and points of view than you were exposed to in high school, both inside and outside the classroom.

As a learning community, we strive to promote mutual respect in how we interact with each other. To do this, we need to be mindful that each member of our community comes with a unique set of experiences and viewpoints, and that they hold significant weight for each of us.

That’s why sometimes, despite our goal of maintaining civil discourse, you may encounter expression on campus that you find offensive or unpleasant. This is an unavoidable result of everything from the protests, debates, and speakers you will encounter while you are here, to the meaningful everyday discussions you will have with friends.

Offensive speech on campus can be a very challenging topic to talk about. But to begin with, you should know that the First Amendment strictly limits a public university’s regulation of speech. In the United States, a public university is an extension of the government. The First Amendment does not permit the government, including public universities, to police or regulate your speech and writings for the “wrong” opinion or belief. [1] But guaranteeing your freedoms also means guaranteeing the freedoms of thought and expression of those with whom you most strongly disagree. As frustrating as it can be, remember that a principle that allows for the censorship of others ultimately allows those others to censor you too.

The Supreme Court reflected this reality and stated in their 2017 Matal v. Tam opinion: “The proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’”

Next, we’ll be watching three short videos with New York Law School Professor Nadine Strossen—a renowned expert on civil liberties, former president of the ACLU, and the author of “Hate: Why We Should Resist It With Free Speech, Not Censorship.” Professor Strossen will discuss the problems with censorship, particularly how it has been used to silence minorities, women, and other disenfranchised groups and unpopular ideas. Take a moment to consider how your concept of what is offensive might differ from your neighbor’s perspective, or that of someone from across the world.

In this first video, Professor Strossen discusses the dangers of giving government or university officials the power to regulate speech—that any power to regulate offensive speech would be used against the marginalized groups that the First Amendment was intended to protect.

VIDEO 1

Link: Nadine Strossen: “Censorship…does more harm than good”
Length: 2:40
Transcript:

Through all the research I did for my book, I was more persuaded than ever that censorship, no matter how well intended, actually does more harm than good. It brings attention and sympathy to the hatemongers that they otherwise would not have received—and again, there’s this consistent pattern that it’s advocates of social justice, law reform, equal rights, and members of minority groups who always bear the disproportionate brunt of censorship. And I want to point out that it is no coincidence. It follows from the very premises of those who advocate for hate speech laws. They argue, and I agree, that we have ongoing problems of discrimination and structural injustice in our so-called “criminal justice” system. Studies consistently show institutional, systemic biases against people of color, for example. There have been studies of the civil justice system which also show baked-in biases against women and other traditionally disenfranchised and marginalized groups. All kinds of studies, sadly, document this so-called “implicit” or “unconscious” bias that all of us are subject to. The good news is that we are working to overcome all of these problems. But in the meantime, why in the world would we hand over to these discriminatory systems and structures and enforcing individuals, such a subjective, inescapably subjective, power to deciding which speech is hateful, and therefore should be punished?

We have calls today from government officials, law enforcement officers, saying that Black Lives Matter activism and advocacy is hate speech. Pipeline protestors, those protesting abuses within the criminal justice system have been accused of hate speech, and have had their messages taken down as hate speech by social media companies that are enforcing their so-called “standards” against hate speech.

It’s [censorship] a very dangerous tool—especially for those of us who are advocating for equality and dignity, diversity and inclusivity—we should be especially wary of using it. The good news is that so much can be accomplished in so many other ways.”

Video 1 Reflection

As you just heard, Professor Strossen makes a very strong case against allowing the government to censor speech. Remember, public universities like ours fall into the category of government actors. [2] Allowing those in power to determine what is and what is not offensive enough to be regulated—an exceedingly vague concept—is a dangerous path that can end up hurting the very causes many of us would like to support.

In the next video, Professor Strossen will elaborate further on how censorship can be used to punish unpopular ideas. She will explain why civil rights activists in the 1960s fought for broader speech protections, despite facing horrendously offensive speech in response to their activism.

VIDEO 2

Link: Nadine Strossen: “We do not want to give the government more power”
Length: 2:41
Transcript:

We do not want to give the government more power because it gives the government, and that includes public university officials, too much discretion to punish unpopular ideas.

Before we had the “emergency” test, which the Supreme Court adopted specifically in the context of the civil rights movement of the 1960s, we had what was called the “bad tendency” test. And that’s the test still used in other countries that still allow the punishment of hateful speech just because of dislike of the ideas. And under that test, anytime speech had a bad tendency to perhaps, indirectly, potentially, at some point in the future cause harm, then government could censor it. Well, I hope you realize, just about all speech has a potential bad tendency. And so, that very sweeping standard gave the government enormous power to pick and choose based on which ideas were popular and which ones were not.

That is why, consistently censored throughout our history, until we adopted the emergency test, was any speech that was in a minority—whether it was advocating a minority political perspective or advocating for rights of minority groups. That is why Martin Luther King wrote his historic “Letter from a Birmingham Jail.” That’s why so many crusaders for reproductive rights, for women’s suffrage, against wars, for social justice, were imprisoned because their ideas were hated, and were seen as dangerous and threatening, and subversive. So we really do not want to go back to those subjective, broader standards. And in fact, when we have had hate speech codes on college campuses in this country—they were put in place before they were struck down by the courts—not surprisingly, the speech that was disproportionately censored, was speech by minority students, and speech advocating for the rights of minority students—tragically and ironically, the very groups that were hoped to be protected by these laws. And we see the same pattern in the enforcement of hate speech laws in comparable democratic countries around the world.

Video 2 Reflection

As Professor Strossen explained, censoring speech can have, and often has had, unintended consequences, such as drawing more attention to that speech, or suppressing the voices of minorities and minority ideas. Throughout history, speech that challenges the status quo has been viewed as offensive by many of those who hold power. From 1836 to 1844, the rhetoric of abolitionists was so offensive to the pro-slavery majority in the House of Representatives that they banned all anti-slavery petitions and debate on the House floor. It was abolitionists, civil rights leaders, and other free speech advocates that fought through the courts for our First Amendment rights to be respected.

In the past, civil rights leaders could be arrested just for organizing bus boycotts or attending a mass demonstration. Now, that kind of recourse is now saved for, let’s say, a protestor carrying a brick outside of a church threatening to break the windows. The government still reserves the right to take action against those who engage in a pattern of behavior with the intent of making someone fear for their safety or who are threatening violence.

In this next video, Professor Strossen will explain that, despite protections for hate speech, it can cross a line and cause such imminent harm that it is no longer protected.

VIDEO 3

Link: Nadine Strossen: “Government must remain neutral”
Length: 1:52
Transcript:

Government must remain neutral to the content, the viewpoint, the idea, the message of the speech, no matter how hated or despised or loathed it might be. The answer to it is not suppression, but more speech—answer back.

That said, it’s really important to recognize that hate speech—I use it the way the term is used in everyday speech, speech that conveys hateful or discriminatory or stereotyped ideas on the basis of factors such as race, religion, gender, and so forth—Hate speech, along with speech of any other content, when you get beyond the content or the message and look at a certain context, it may be punished if—under all of the facts and circumstances in a particular context—that speech presents an emergency. Specifically, if it directly causes certain specific, imminent, serious harm. Such as intentional incitement of imminent violence, where the violence is likely to happen imminently. Or a “true threat,” where the speaker means to instill a reasonable fear on the part of the audience that they are going to be subject to attack. Or targeted, persistent, pervasive harassment or bullying.

So our law gives a lot of tools to government officials—including at public universities—to punish hateful speech in the precise context when it causes the greatest danger of actual harm.

Video 3 Reflection and Outro

As Professor Strossen noted, offensive speech enjoys strong constitutional protections—but the right to free speech is not completely unlimited. It can cross the line to unprotected speech when it is likely to cause an imminent emergency or harm. Speech loses its protection when it is directed to, and likely to, cause imminent, serious harm, or when speech is used as a tool to engage in unlawful harassment or bullying that is severe, pervasive, and objectively offensive and undermines an individual’s ability to access university resources or opportunities.

When that happens, please utilize our campus resources. Call public safety if you feel you’re in physical danger, meet with our counseling staff if you need emotional support, and let your RA know if you need help resolving a personal dispute.

When you leave here today and start your journey as a college student, it is important to remember not just that our university is committed to freedom of speech and freedom of expression for all of our students, but to understand why we have taken this path.

If someone says something that makes you feel unsafe, or if you have questions about your rights on campus, the university has resources devoted to providing support. You can contact the dean of students, campus counseling services, or campus security. We look forward to having you join the conversation at [university name], as we work together to pursue truth, learn from one another, and expand the boundaries of knowledge.


[1] Private school edit: But to begin with, you should know that as a private university that values freedom of speech, we maintain institutional policies and statements that commit us to respecting your free speech rights. Because of this, we cannot police or regulate your speech and writings for the “wrong” opinion or belief.

[2] Private school edit: Remember, our policies mean we cannot censor your speech based on viewpoint or content.