Hate Speech: Who are we protecting?

The topic of regulating “hate speech” on college campuses has been a hot-button issue in 2017, and staunch defenders of free speech have been pushing back against what they feel are violations of the constitutional rights guaranteed under the First Amendment. There have been multiple instances of scheduled speakers who hold “controversial” views being disinvited to colleges and universities because students have demonstrated in opposition to their presence on their campus.

*Check out FIRE’s (Foundation for Individual Rights in Education) “Disinvitation Database” – a comprehensive collection of “disinvitation incidents” at American public and private institutions since 2000.

While there are some differences in policies between public and private institutions when it comes to free speech protections, one prevalent argument is that the open expression of differing ideas is essential to both an optimal learning environment and a democratic society at large. Not allowing controversial opinions to be heard on campuses shuts down the opportunity for discussion and civil discourse, which some say is more harmful than the expression of “hateful” ideas in the first place.

Legal Context

Regulating hate speech in general is a delicate balancing act, because in order for it to be effective, “hate speech” must be narrowly defined. Historically when colleges have enacted codes against hate speech, it has ended up hurting the very people the codes were meant to protect – minority students and students of color.

Legally, there is no universally agreed upon definition of hate speech. Constitutionally under the First Amendment, the courts cannot punish someone for the content of their speech. However, the courts can intervene in situations of violence or harassment. If an individual is found to be “inciting imminent violence” with their speech – regardless of their viewpoint – that speech is not protected under the First Amendment and is punishable by law.

ACLU Attorney Lee Rowland argues that hate speech is broadly protected constitutionally because the belief is that in a society with totally free speech, the best ideas will win out.

“We need students trained to really listen to ideas they hate — and respond with better ones…When you choose censorship as your substantive argument, you lose the debate.” – ACLU Attorney Lee Rowland

Hate Speech vs. Intimidation Speech

After a number of recent racially-charged incidents on Cornell University’s campus, including verbal and physical assaults against people of color, the Student Assembly passed Resolution 8, titled, “Condemning Hate Crimes and Hate Speech, and Supporting Students” which calls on the university to amend the Campus Code of Conduct to better protect students from these kinds of attacks.

Matt Indimine, one of the sponsors of the resolution, said that it is more about punishing “intimidation speech” than “hate speech”.

“Freedom of speech is a constitutional right, but our university and our university president has been applying it in a way that justifies hate speech. The fact of the matter is, if you’re intimidating someone, that should not be covered under free speech.” – Matt Indimine, Cornell ’18

Is there a difference between hate speech and intimidation speech? If so, where is the line drawn between the two, and is it possible to write policy that protects people from intimidation while still leaving room for the free-flowing expression of ideas?

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For updates on Resolution 8 and the debate about free speech on Cornell University’s campus, follow me on Twitter.

 

 

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