Showing papers in "William and Mary Bill of Rights Journal in 1994"

Hate Speech and Harassment: The Constitutionality of Campus Codes that Prohibit Racial Insults

Abstract: The purpose of this Article is to evaluate the constitutionality of laws in the second category. The focus is on "wounding words ... spoken directly to the victim ... [where] there is little chance that any persuasion is occurring,"on "non-public discourse,"on "targeted vilification" in "face-to-face encounters" where the "aim is to wound and humiliate. "The problem that laws in this category seek to address is the harm to the individual that results when, in a university setting, a white bigot walks up to a black student and uses racial epithets to insult her while she is walking to class. Two university hate speech codes attempting to prohibit targeted abusive speech causing individual harm have been challenged as violating the First Amendment and struck down by federal courts. In both cases, Doe v. University of Michigan and UWM Post, Inc. v. Board of Regents of the University of Wisconsin, the codes were held to be vague and over­broad. Significantly, however, each court approached the vagueness and overbreadth issue from a different perspective. In the University of Michigan case, the court identified a wide variety of kinds of speech, and situations in which speech was used to cause individual harm, that could be regulated without violating the First Amendment. These included, for example, "the lewd and obscene, the profane, the libelous, and the insulting or 'fighting words,' those [words] which by their very utterance inflict injury or tend to incite an immediate breach of the peace," speech "sufficient to state a claim for common law intentional infliction of emotional distress," and "threats of violence or property damage made with the specific intent to harass or intimidate the victim." The university's hate speech code was overbroad because it was not limited to restricting these kinds of speech, but also prohibited speech that the university disagreed with because of the "ideas or messages sought to be conveyed."Thus, the university had violated the First Amendment by attempting to punish persuasive speech as well as abusive speech that caused harm to targeted individuals. In the University of Wisconsin case, on the other hand, the court displayed a much more rigid and limited perspective with regard to the range of permissible speech regulations. In its view, virtually all persuasive speech, and most harmful speech directed at individuals, were immune from governmental sanction. Indeed, the only speech the university could constitutionally prohibit that the court recognized was a narrowly defined class of fighting words, speech that "by its very utterance tend[s] to incite violent reaction." No other abusive and harmful speech targeted at an individual student could be punished. The problem with the decisions of both of these courts is that the First Amendment standard that they apply to campus hate speech codes seems strangely divorced from conventional, real world restrictions on harmful speech. The University of Wisconsin decision is particularly vulnerable to this charge. Even a casual examination of state law in almost any jurisdiction demonstrates a wide range of speech regulations that cannot be defended as limited restrictions on "fighting words." Obscene phone calls, which are almost never technically obscene, abusive slurs and vicious practical jokes that constitute intentional infliction of emotional distress, threats and verbal harassment, and bigoted expression in the workplace are all subject to civil or criminal sanction. Either the First Amendment tolerates restrictions on far more than fighting words, or the federal and state courts are exceedingly tolerant of laws that violate the First Amendment. The court in the University of Michigan case recognizes the potential breadth of these conventional speech restrictions. It fails, however, to explain why the same vagueness and overbreadth concerns that required the invalidation of the university's hate speech code do not justify invalidating most of these limitations on speech as well. It may be that such laws survive constitutional scrutiny because courts recognize that there is no way to define obscene phone calls or the tort of intentional infliction of emotional distress with clarity and precision. That suggestion, however, does not explain why a similar rationale cannot be used to justify hate speech regulations. The critical issue in reviewing university hate speech regulations, not adequately considered by either the Michigan or the Wisconsin court, is whether there is some principled way to defend the constitutionality of these generally accepted restrictions on speech that target an individual for abuse. The narrow fighting words principle adopted by the Wisconsin District Court, although it is grounded on United States Supreme Court precedent, is too under-inclusive to be practical and is conceptually unsatisfying. It is impractical because it only applies to face-to-face encounters that are likely to result in an immediate breach of the peace. Thus, harassing and obscene phone calls could not be proscribed pursuant to its authority since the frequent anonymity of the caller and the distance between the offending speaker and his victim preclude immediate violent retaliation in most instances. The fighting words principle is unsatisfying because it tolerates the victimization of the weak, of people who are incap­able of protecting themselves from verbal abuse by threatening a physical response. In ignoring the harm to the victims of invidious speech, the fighting words principle seems to be directed at a tangent to the core problem, without addressing what is most unacceptable about hate speech. One alternative approach to resolving this problem is to define more expansively the kind of expression that falls within the category of fighting words. There is obvious precedent for this approach because Chaplinsky v. New Hampshire, the case in which the· fighting words doctrine originated, did not exclusively limit this category of unprotected speech to language that will immediately provoke a breach of the peace. Instead, harmful words "which by their very utterance inflict injury," such as epithets or personal abuse, were also recognized as being subject to sanction. A principle suggesting that all hurtful speech directed at an individual might be prohibited would make too much speech vulnerable to restriction, however, as cases decided after Chaplinsky have demonstrated. The First Amendment clearly protects stinging rebukes and angry criticism directed at individuals despite the pain that such comments may cause. Thus, the broader description of fighting words in Chaplinsky represents relevant authority supporting the regulation of hurtful expression, but the question of determining precisely when hurtful speech can be constitutionally restricted remains an open issue requiring additional analysis. The first step in addressing that question is to recognize that probably no single principle can explain and justify all the legitimate and permissible restrictions on harmful speech that exist. In the following pages, I will argue that there are four factors that, in appropriate com­binations, should be used by courts to uphold speech regulations designed to protect individuals from abusive expression directed at them. An evaluation of these factors, in turn, will determine the constitutionally permissible scope of campus speech codes.