As colleges struggle to handle the various differences their students and faculty embody, the problem of "hate speech" has become a focal point of educational erudition and policy-making. In the most deliberate and alarming cases, hate speech is projected to degrade or disgrace those at whom it is directed, usually colored people, gays, lesbians, the physically or mentally challenged, and women, regardless of their sexual orientation, race, religion or ability. Less disturbing examples include insensitive or careless comments, jokes, and other expressions that are painful to those to whom they are directed, regardless of the intent of the person by whom they are spoken or written.
The main focus of this essay is to discuss the current dominant structure within which the matter of hate speech is being debated. This structure draws heavily on the discussion of the Fourteenth and the First Amendments, which in my opinion are not adequate to the issue of hate speech. There is a pressing need for extra-legal standards for communicative interaction to handle this sensitive issue.
In our society various laws have been invoked to regulate an increasingly extensive range of social communications. The very language with which we talk about our needs, desires and disagreements is often highly legalistic (Glendon 1991). When reacting to someone else's hurting experience, one may lament that there should be a law against such acts but the existence of a law is hardly sufficient to prevent the hurt provide some compensation. Interestingly, appeals to the law are outlined in terms of different rights. For example, smokers appeal to their right to smoke but on the other hand non-smokers appeal to their right to clean air; pro-choice supporters appeal to women's right to privacy, while pro-life believers appeal to fetus' right to life. Concerns regarding environmental destruction often stir up claims about supposed rights of plants and animals; these claims are against the counter-claims relating to property and employment.
Those discussing the hate speech on college campuses often support either the Fourteenth or the First Amendments, depending on their political preferences. Fourteenth Amendment advocates the value of "equal protection" while the First Amendment supports "freedom of speech". Due to this general tendency to rely more and more on various laws, it is not unexpected that hate speech should also be conceived legalistically. On College campuses, where hate speech has become a pressing issue, administrators have tried to deal with the situation by implementing legalistic policies that define certain speech as "discriminatory". For example, at the University of Michigan "discriminatory expressions" are those that are based on color, race, creed, religion, sex, sexual orientation, national origin, ancestry, marital status, age, handicap or Vietnam-era status that has the effect of creating an intimidating, antagonistic or unpleasant environment for academic pursuits (Harwood 23).
Similarly, the University of Pennsylvania forbids any behavior that oppresses individuals on the basis of race, ethnic or national origin and that interfers with an individual's academic performance (Raush 133). The University of Wisconsin forbids comments that "degrade the [victim's] sex, race, religion, creed, color, sexual orientation, disability, national origin, ancestry or age.or which create a hostile, intimidating, or humiliating environment for education" (D'Souza 1992).
The justification for these speech regulations is that the school environment that allows certain statements can be unfavorable to various educational endeavors and may comprise discrimination under federal and state laws. According to this justification, "discrimination" is not just restricted to certain explicit notions like denying admission or financial aid on the basis of race, sex, etc. Speech, whether verbal or symbolic, can be just as discriminatory when it disgraces and discourage individuals who are members of certain close groups, like those mentioned in the University of Michigan policy. When speech is envisioned as potentially biased, words are not viewed as mere verbiage or symbolic expression; they are seen as having a material dimension: words can "wound" (Matsuda et al 1993). The harm caused by hate speech not only affects the specific individual to whom it is directed, but also to all members of his or her group; In this sense speech directed at one person can be considered as a kind of "collective defamation". Therefore, to create a non-discriminatory school environment, it is necessary to implement certain limitations on expression.
Those holding the view that some speech must be regulated in order to develop an environment where all can learn effectively, often question the extent to which the ideal of "free speech" is actually operative in schools and in society generally. According to this argument, power relations structured partly by race, gender, and class, make free speech almost impossible. In classrooms, as in the society of which they are a part, not everyone feels themselves to be equally free to speak. Speech regulations seek to equalize the inequalities that are thought to prevail in the classroom and that interfere with genuinely "free" expression. Judith Martin and Gunther Stent state that: "Only when insults, harassment, disrespect and obscenity are banned [in universities] can people engage in truly substantive argument".
In response against those who seek to categorize hate speech as discrimination, strong supporters of free speech usually argue that universities breach the First Amendment when they seek to forbid forms of expression. Those in favor of this argument have the courts on their side. In June 1992, a St. Paul municipal ordinance aimed against prejudice was found unlawful on the grounds that it violated the First Amendment. The ordinance made it an offense to place a characterization where it is likely to "[arouse] anger, alarm, or resentment in others on the basis of race, color, creed, religion or gender". Similarly in the academic world, federal district courts have found the policies at the University of Wisconsin and the University of Michigan, mentioned above, to be unlawful again on the grounds that they violate the First Amendment.
Apart from arguing against speech regulations on constitutional grounds, free speech supporters also often argue that the First Amendment actually helps historically disadvantaged groups. They argue that if there was no law advocating freedom of speech, these groups would not be able to criticize the policies and preferences of the leading classes who would have the power to muffle problematic criticism.
Keeping the legal status of speech regulations aside, there are other grounds for questioning the effectiveness of rules projected to administer communicative interactions. First, the rules that merely disallow certain speech will be inadequate to the intricacies actually encountered during communication. This is due to the fact that meaning is highly context dependent; an insult in one situation can be a term of endearment in another. For example, a rule intended to forbid the "infantilization" of women might forbid the use of the word "babe" when reference is being made to adult females. Indeed, for many women, being referred to as "babe" by an unfamiliar man on the street is demeaning. But the same word, spoken by a friend or lover can be an affirmation of intimacy and approval. The possible implications of this one word when spoken in various other situations suggest why rules for communicative interactions can be unhelpful.
In addition, rules can have the unintentional effect of encouraging ethical disengagement. By specifying rules for expressions that should not be used, the outer limits of accountability are also defined. As long a person abstains from engaging in forbidden language, he or she has met his or her responsibility, as defined by the rules (Thompson 238-59). Yet mere self-control can be insufficient to the needs of the situation at hand. For example, one may avoid using racial insults while harboring feelings that will exclude the possibility of open or impartial conversation with persons of races other than one's own.
The arguments presented above clearly demonstrate that legalistic policies intended to forbid hate speech on college campuses have failed to solve the problem they address. Even if lawful grounds were found to support such policies, it is not obvious that excluding certain expressions would indeed have the required result of making college campuses places where all students can flourish irrespective of their color, creed, sexual preferences, origin, and sex. Rules forbidding some language and the exclusion of students from conversation are insufficient to encourage the aims of open and equitable conversation and may have the unintended result of reducing students' sense of responsibility in regard to communicative relations.
D'Souza, Dinesh. Illiberal Education: The Politics of Race and Sex on Campus. New York: Vintage Books, 1992./p>
Glendon, Mary Ann. Rights Talk: The Impoverishment of Political Discourse (New York: The Free Press, 1991)
Harwood, Richard. America's New Era of Curbed Speech - Salt Lake Tribune (14 May, 1993), 23 (A).
Raush, Jonathon. Kindly Inquisitors: The New Attacks on Free Thought (Chicago: University of Chicago Press, 1992), 133.
Matsuda, Mari J., Lawrence, Charles R. III, Delgado, Richard, and Crenshaw, Kimberle Williams. Words that Wound: Critical Race Theory, Assaultive Speech and the First Amendment (Boulder: Westview Press, 1993).
Thompson, Audrey. The Baby with a Gun: A Feminist Inquiry into Plausibility, Certainty and Context in Moral Education," Philosophy of Education 1990 ed. (Normal, Ill.: Philosophy of Education Society, 1991), 238-59.