Advertisement

Res Publica

, Volume 26, Issue 1, pp 45–66 | Cite as

Hate Speech on Campus: What Public Universities Can and Should Do to Counter Weaponized Intolerance

  • Rex WelshonEmail author
Article

Abstract

Democratic societies tolerate intolerance, but that obligation finds its limit when the security of its citizens is jeopardized or its institutions of liberty are imperiled. Similarly, universities tolerate intolerance, but that obligation finds its limit when threatened by weaponized intolerance advocates who disenfranchise and denigrate community members and imperil academic norms and professional standards of conduct. Then, just as democratic societies must protect their threatened citizens and safeguard their imperiled institutions of liberty, so universities must protect their threatened community members and safeguard their imperiled norms and standards. I argue for these conclusions by establishing a conflict between what the First Amendment legally permits university community members to express and what the norms of the university and the professional standards that structure academic freedom require from university community members. I argue that given the First Amendment, universities are legally obliged to tolerate even weaponized intolerance in campus public forums even if not in the classroom. I then recommend three responses to weaponized intolerance on campus that are consistent with the First Amendment: denunciation and protest, provision of safe space, and affirmation of academic values, norms, and standards. I reject three frequently encountered responses to weaponized intolerance as inconsistent with the First Amendment: heckler’s vetoes, student speech codes, and speaker bans. And I argue that one response—disruptive protest that falls short of a heckler’s veto—is legally permissible for students and faculty members but is ruled out for faculty members by academic norms and professional standards.

Keywords

Academic freedom First Amendment Hate speech Intolerance Safe space Weaponized intolerance 

Notes

Acknowledgements

I would like to thank Perrin Cunningham, Leee Overmann, Justin McBrayer, Jennifer George, Patrick O’Rourke, two referees for this journal, and session attendees at the AAUP Conference in Washington D.C., June 2017, for discussions that improved the essay.

References

  1. Amar, Vikram, and Alan Brownstein. 2017. A Close-up, Modern Look at First Amendment Academic Freedom Rights of Public College Students and Faculty. Minnesota Law Review 101: 1943–1985.Google Scholar
  2. American Association of University Professors. 2015/1915. 1915 Declaration of Principles on Academic Freedom and Academic Tenure. AAUP Policy Documents and Reports 11th edition, 3–12. Baltimore, MD: Johns Hopkins University Press.Google Scholar
  3. American Association of University Professors. 2015/1940. 1940 Statement of Principles of Academic Freedom and Tenure. AAUP Policy Documents and Reports 11th edition, 13–19. Baltimore, MD: Johns Hopkins University Press.Google Scholar
  4. American Association of University Professors. 2015/2009. Statement on Professional Ethics. AAUP Policy Documents and Reports 11th edition, 145–146. Baltimore, MD: Johns Hopkins University Press.Google Scholar
  5. American Association of University Professors. 2015/1994. On Freedom of Expression and Campus Speech Codes. AAUP Policy Documents and Reports 11th edition, 361–362. Baltimore, MD: Johns Hopkins University Press.Google Scholar
  6. American Association of University Professors. 2015/2007a. Academic Freedom and Outside Speakers. AAUP Policy Documents and Reports 11th edition, 37–38. Baltimore, MD: Johns Hopkins University Press.Google Scholar
  7. American Association of University Professors. 2015/2007b. Freedom in the Classroom. AAUP Policy Documents and Reports 11th edition, 20–27. Baltimore, MD: Johns Hopkins University Press.Google Scholar
  8. Austin, John. 1962. In How to Do Things with Words, ed. J.O. Urmson and Marina Sbisà. Oxford: Clarendon Press.Google Scholar
  9. Bauries, Scott. 2014. Individual Academic Freedom: An Ordinary Concern of the First Amendment. Mississippi Law Journal 83 (4): 677–743.Google Scholar
  10. Bedau, Hugo (ed.). 1991. Civil Disobedience in Focus. New York, NY: Routledge.Google Scholar
  11. Bonney, Stephen. 2013. The University as Public Forum: The Legacy of Widmar v. Vincent. University of Missouri Kansas City Law Review 81 (3): 545–567.Google Scholar
  12. Brison, Susan. 1998. Speech, Harm, and the Mind-Body Problem in First Amendment Jurisprudence. Legal Theory 4: 39–61.Google Scholar
  13. Bromwich, David. 2017. The New Campus Censors. The Chronicle of Higher Education. https://www.chronicle.com/article/The-New-Campus-Censors/241637. Accessed 2 July 2018.
  14. Brown, Alexander. 2015. Hate Speech Law: A Philosophical Examination. New York, NY: Routledge.Google Scholar
  15. Brown, Alexander. 2017. What is Hate Speech? Part I: The Myth of Hate. Law and Philosophy 36: 419–468.Google Scholar
  16. Brownlee, Kimberly. 2012. Conscience and Conviction: The Case for Civil Disobedience. Oxford: Oxford University Press.Google Scholar
  17. Caine, Burton. 2004. The Trouble with 'Fighting Words': Chaplinsky v. New Hampshire is a Threat to First Amendment Values and Should be Overruled. Marquette Law Review 88 (3): 441–562.Google Scholar
  18. Calvert, Clay. 2010. Fighting Words in the Era of Texts, IMs, and E-Mails: Can a Disparaged Doctrine Be Resuscitated to Punish Cyber-Bullies? DePaul Journal of Art, Technology & Intellectual Property Law 21 (1): 1–48.Google Scholar
  19. Calvert, Clay. 2018. Reconsidering Incitement, Tinker and the Heckler’s Veto on College Campuses: Richard Spencer and the Charlottesville Factor. Northwestern University Law Review 112: 109–132.Google Scholar
  20. Caplan, Aaron. 2010. Invasion of the Public Forum Doctrine. Willamette Law Review 45: 647–676.Google Scholar
  21. Cohen, Carl. 1971. Civil Disobedience: Conscience, Tactics, and the Law. New York, NY: Columbia University Press.Google Scholar
  22. Davis, Thomas. 2004. Assessing Constitutional Challenges to University Free Speech Zones under Public Forum Doctrine. Indiana Law Journal 79 (1): 267–297.Google Scholar
  23. Delgado, Richard. 1982. Words that Wound: A Tort Action for Racial Insults, Epithets, and Name-Calling. Harvard Civil Rights-Civil Liberties Law Review 17 (1): 133–181.Google Scholar
  24. Delgado, Richard, and Jean Stefancic. 2004. Understanding Words That Wound. Boulder, CO: Westview Press.Google Scholar
  25. Deutsch, Norman. 2008. Does Anybody Really Need a Limited Public Forum? St. John’s Law Review 82: 107–151.Google Scholar
  26. Finkin, Matthew, and Robert Post. 2009. For the Common Good: Principles of Academic Freedom. New Haven, CT: Yale University Press.Google Scholar
  27. Friedersdorf, Conor. 2015. Campus Activists Weaponize ‘Safe Space’. The Atlantic, November 10.Google Scholar
  28. Goldberg, Erica. 2011. Must Universities 'Subsidize' Controversial Ideas? Allocating Security Fees When Student Groups Host Divisive Speakers. Civil Rights Law Journal 21 (3): 349–405.Google Scholar
  29. Goldberg, Suzanne. 2018. Free Expression on Campus: Mitigating the Costs of Contentious Speakers. Harvard Journal of Law and Public Policy 41 (1): 163–186.Google Scholar
  30. Heim, Joe. 2017. Spencer Speech Met by Protests. Washington Post, October 20, at A3.Google Scholar
  31. Heyman, Steven. 2008. Free Speech and Human Dignity. New Haven, CT: Yale University Press.Google Scholar
  32. Heyman, Steven. 2012. Hate Speech, Public Discourse, and the First Amendment. In Extreme Speech and Democracy, ed. Ivan Hare and James Weinstein, 158–181. New York, NY: Oxford University Press.Google Scholar
  33. Hill, Jason. 2013. Civil Disobedience and the Politics of Identity: When We Should Not Get Along. New York, NY: Palgrave.Google Scholar
  34. Ho, Katherine. 2017. Tackling the Term: What is a Safe Space? Harvard Political Review. http://harvardpolitics.com/harvard/what-is-a-safe-space. Accessed 2 July 2018.
  35. Horwitz, Paul. 2013. First Amendment Institutions. Cambridge, MA: Harvard University Press.Google Scholar
  36. Juhan, S. Cagle. 2012. Free Speech, Hate Speech, and the Hostile Speech Environment. Virginia Law Review 98 (7): 1577–1619.Google Scholar
  37. Kellum, Nathan. 2005. If it Looks Like a Duck. Traditional Public Forum Status of Open Areas on Public University Campuses. Hastings Constitutional Law Quarterly 33: 1–45.Google Scholar
  38. Kenney, Moria. 2001. Mapping Gay L.A.: The Intersection of Place and Politics. Philadelphia, PA: Temple University Press.Google Scholar
  39. Kitrosser, Heidi. 2017. Free Speech, Higher Education, and the PC Narrative. Minnesota Law Review 101: 1987–2064.Google Scholar
  40. Krotoszynski Jr., Ronald. 2017. Our Shrinking First Amendment: On the Growing Problem of Reduced Access to Public Property for Speech Activity and Some Suggestions for a Better Way Forward. Ohio State Law Journal 78 (4): 779–817.Google Scholar
  41. Lukianoff, Greg, and Jonathan Haidt. (2015). The Coddling of the American Mind. Atlantic. https://www.theatlantic.com/magazine/archive/2015/09/the-coddling-of-the-american-mind/399356/. Accessed 2 July 2018.
  42. Majeed, Azhar. 2009. Defying the Constitution: The Rise, Persistence, and Prevalence of Campus Speech Codes. The Georgetown Journal of Law and Public Policy 7: 481–544.Google Scholar
  43. Matsuda, Mari, Charles Lawrence, Richard Delgado, and Kimberlee Williams Crenshaw (eds.). 1993. Words That Wound: Critical Race Theory, Assaultive Speech, and the First Amendment. Boulder, CO: Westview Press.Google Scholar
  44. May, Todd. 2015. Nonviolent Resistance: A Philosophical Introduction. Cambridge: Polity.Google Scholar
  45. McNeill, Claire. 2017a. UF’s Move to Deny White Nationalist Richard Spencer a Venue Sets Up a First Amendment Court Fight. Tampa Bay Times, August 17. https://www.tampabay.com/news/education/college/uf-denies-white-supremacist-richard-spencers-request-to-speak-on-campus/2333971. Accessed 2 July 2018.
  46. McNeill, Claire. 2017b. Holding Nose, UF Set for Visit. Tampa Bay Times, October 12. http://www.tampabay.com/news/education/college/uf-security-costs-top-500000-for-richard-spencerstalk-on-white-separation/2340689. Accessed 2 July 2018.
  47. Miller, Patrick. 2018. University Regulation of Speech: In Search of a Unified Mode of Analysis. Michigan Law Review 116 (7): 1317–1343.Google Scholar
  48. New York Times Editorial Board. 2017. Smothering Speech at Middlebury. New York Times, March 7. https://www.nytimes.com/2017/03/07/opinion/smothering-speech-at-middlebury. Accessed 2 July 2018.
  49. Note. 2015. Federal Threat Statute—Mens Rea and the First Amendment. Harvard Law Review 129: 331–340.Google Scholar
  50. Nussbaum, Martha. 2018. Civil Disobedience and Free Speech in the Academy. In Academic Freedom, ed. Jennifer Lackey. New York, NY: Oxford University Press.Google Scholar
  51. O’Neil, Robert. 2013. Hate Speech, Fighting Words, and Beyond—Why American Law is Unique. Albany Law Review 76: 467–498.Google Scholar
  52. Papandrea, Mary-Rose. 2017. The Free Speech Rights of University Students. Minnesota Law Review 101: 1801–1861.Google Scholar
  53. Popper, Karl. 2002/1945. The Open Society and its Enemies. New York, NY: Routledge.Google Scholar
  54. Post, Robert. 1987. Between Governance and Management: The History and Theory of the Public Forum. UCLA Law Review 34: 1713–1835.Google Scholar
  55. Post, Robert. 2017. The Classic First Amendment Tradition Under Stress: Freedom of Speech and the University. Yale Law School, Public Law Research Paper No. 619.Google Scholar
  56. Rabe, Lee Ann. 2003. Sticks and Stones: The First Amendment and Campus Speech Codes. John Marshall Law Review 37: 205–227.Google Scholar
  57. Rawls, John. 1971. A Theory of Justice. Cambridge, MA: Harvard University Press.Google Scholar
  58. Robbins, Jeff. 2016. Floyd Abrams Speaks Freely to Political Correctness on America’s Campuses. Observer, May 9. http://observer.com/2016/05/floyd-abrams-speaks-freely-to-political-correctness-on-americas-campuses. Accessed 2 July 2018.
  59. Rohr, Marc. 2017. First Amendment Fora Revisited: How Many Categories Are There? Nova Law Review 41: 221–236.Google Scholar
  60. Schackner, Bill. 2017. Penn State Faces Suit for Snubbing ‘Alt-Right’ Speaker; Richard Spencer a Security Risk, University Said. Pittsburgh Post-Gazette, October 21, at A1.Google Scholar
  61. Scheueman, William. 2018. Civil Disobedience (Key Concepts). Cambridge: Polity Press.Google Scholar
  62. Scott, Joan. 2017. On Free Speech and Academic Freedom. JAF: AAUP Journal of Academic Freedom 8: 1–10.Google Scholar
  63. Seglow, Jonathan. 2016. Hate Speech, Dignity, and Self-Respect. Ethical Theory and Moral Theory 19: 1103–1116.Google Scholar
  64. Simpson, Robert. 2013. Dignity, Harm, and Hate Speech. Law and Philosophy 32: 701–728.Google Scholar
  65. Singer, Peter. 1973. Democracy and Disobedience. Oxford: Clarendon Press.Google Scholar
  66. Stanger, Allison. 2017. Understanding the Angry Mob at Middlebury that Gave Me a Concussion. New York Times, March 13. https://www.nytimes.com/2017/03/13/opinion/understanding-the-angry-mob-that-gave-me-a-concussion.html. Accessed 2 July 2018.
  67. Stoll, David. 1993. Public Forum Doctrine Crashes at Kennedy Airport, Injuring Nine: International Society for Krishna Consciousness, Inc. v. Lee. Brooklyn Law Review 59 (3): 1271–1322.Google Scholar
  68. Stone, A. Douglas, and Mary Schwab-Stone. 2016. The Sheltering Campus: Why College Is Not Home. New York Times, February 5. http://www.nytimes.com/2016/02/07/education/edlife/adolescent-development-college-students.html. Accessed 2 July 2018.
  69. Tsesis, Alexander. 2009. Dignity and Speech: The Regulation of Hate Speech in a Democracy. Wake Forest Law Review 44: 497–532.Google Scholar
  70. Tsesis, Alexander. 2017. Campus Speech and Harassment. Minnesota Law Review 101: 1863–1917.Google Scholar
  71. Waldron, Jeremy. 2012. The Harm in Hate Speech. Cambridge, MA: Harvard University Press.Google Scholar
  72. Weinstein, James. 2009. Extreme Speech, Public Order, and Democracy: Lessons from The Masses. In Extreme Speech and Democracy, ed. Ivan Hare and James Weinstein, 23–61. New York, NY: Oxford University Press.Google Scholar
  73. Weinstein, James. 2013. Academic Freedom, Democracy, and the First Amendment. https://ncpl.law.nyu.edu/wp-content/uploads/resources/Weinstein-FinalPaperwithSupplement000.pdf. Accessed 2 July 2018.
  74. Wells, Cynthia. 2018. Free Speech Hypocrisy: Campus Free Speech Conflicts and the Sub-Legal First Amendment. University of Colorado Law Review 89: 533–564.Google Scholar
  75. Wertheimer, Aviva. 1994. The First Amendment Distinction Between Conduct and Content: A Conceptual Framework for Understanding Fighting Words Jurisprudence. Fordham Law Review 63 (3): 793–851.Google Scholar
  76. Wright, George. 2006. Dignity and Conflicts of Constitutional Values: The Case of Free Speech and Equal Protection. San Diego Law Review 43: 527–1071.Google Scholar
  77. Yong, Caleb. 2011. Does Freedom of Speech Include Hate Speech? Res Publica 17: 385–403.Google Scholar

Copyright information

© Springer Nature B.V. 2019

Authors and Affiliations

  1. 1.Department of PhilosophyUniversity of Colorado Colorado SpringsColorado SpringsUSA

Personalised recommendations