51

A ROBUST CONCEPTION OF SPEECH: HATE SPEECH AND

THE FIRST AMENDMENT

Preston D. Mitchum*

I. INTRODUCTION

The United States Constitution does not grant rights to

Americans. 1 On the other hand, the Constitution assumes those rights
exist, and restricts the government from interfering with them. 2
According to John Stuart Mill, “[w]e can never be sure that the
opinion we are endeavoring to stifle is a false opinion; and if we were
sure, stifling it would be an evil still.” 3 In other words, individuals
have a fundamental right to freedom of speech without governmental
intrusion, even though his or her speech may be untrue. If Mr. Mill is
correct in his assertion, then the First Amendment’s Free Speech
Clause is undoubtedly the most powerful right that individuals retain
from the Bill of Rights and the United States Constitution.
A common form of speech that the government intends to
prevent is ‘hate speech’ because some critics argue that it has no

*BA, Kent State University, 2008; J.D. Candidate, North Carolina Central
University School of Law, 2011. First, I would like to thank God because without
him, nothing is possible. Second, I would like to thank my mother, Carla Owens,
and my grandmother, Lillie Jean Thompson. Words cannot express how
appreciative I am of their love and support. Third, I would like to thank my sisters –
LeShanua, Ebony, and Jahmeelah. I can only hope that I can be an inspiration to
them like they are to me. Lastly, I would like to thank my mentor, Professor Brenda
Reddix-Smalls, and my family and friends for their support throughout this law
school journey and my lifelong dream of becoming an attorney.
1
Ronald J. Rychlak, Compassion, Hatred, and Free Expression, 27 MISS. C. L. REV.
407, 408 (2008).
2
Id.
3
JOHN STUART MILL, ON LIBERTY 90-91 (Penguin Books Ltd. 1974) (1859).
 52

value in the marketplace of ideas. 4 However, the idea that every

citizen is entitled to free speech is indeed a misnomer. 5 Below are
three hypothetical scenarios of extreme hate speech. In each
example, the First Amendment has been extended to the point of no
return to safeguard the speaker.
First, imagine a middle-aged Black woman walking down the
street in a rural part of Mississippi. She hears voices from across the
street, but unfortunately cannot make out the speech. Suddenly,
someone exclaims, “stupid black bitch!” Immediately offended, she
runs into her apartment to seek refuge. Finally escaping, she calls the
local police to file a police report. To her surprise, the Sergeant
responded that she would be able to file a report, but it would not
matter because her neighbors were simply exercising their “freedom
of speech.” Although the words were hateful, they were entitled to
constitutional protection. Would John Stuart Mill agree with this
philosophy or would he believe this woman would have a cause of
action for hate speech or fighting words?
Second, envision a Muslim woman running late for a flight at
John F. Kennedy, International Airport. This departure is necessary
because the next flight does not leave until the following business
day. She begins to rush through security, and officers are alerted
unexpectedly. In astonishment, she asks, “Did I do something
wrong?” Refusing to answer her question, one of the officers grabs
her arm, and forces her into the police room in the airport. Other
passengers are frustrated with the amount of controversy this woman
is allegedly causing. Suddenly, an older Caucasian gentleman shouts,
“She is a terrorist and is attempting to destroy our country . . . We
should have kicked them out of America after September 11th!”
Does this woman have to listen to these untruthful and provocative
comments or is his statement protected by the First Amendment?
Third, picture an Asian man entering Kent State University,
located in northeastern Ohio. Already nervous because of the culture
shock, his nerves soon turn into trepidation when he learns there are
19,918 undergraduate students, and only 316 are Asian. 6 Deciding to

4
Id.
5
Id. at 66.
6
Student Body Profile: Excellent in Action – By the Numbers,
http://www.kent.edu/about/facts/StudentBody.cfm (last visited Nov. 13, 2010).
 53

make this an incredible educational experience, he enters his first

course of the Fall Semester -- “American Politics.” Considering the
last two rows were unavailable, he walked to the very front row,
which was in front of the professor. Class began at 10:00 a.m., and to
his dismay, the time was 10:15 a.m. The aggravated professor turned
his head and in disbelief uttered, “I thought ‘chinks’ knew how to tell
time. Thanks for proving me wrong.” Embarrassed and
dumbfounded, the student makes an immediate exit from the
classroom. Will this be another instance when the First Amendment
trumps an individual’s right to refrain from hearing such offensive
remarks?
Granted, the hypothetical scenarios are extreme, however they
are plausible experiences and because of First Amendment
protections, people who wish to make repugnant statements are
permitted to do so under the freedom of speech.
This paper will examine the doctrinal framework of fighting
words and hate speech. While this paper will address how the
legislature and judiciary should change regulations as times change, it
also focuses on case law and statutory authority that infringes on an
individual’s right to free speech under the First Amendment. Next,
this paper will analyze the purpose of the First Amendment’s Free
Speech Clause. This paper will observe that while people may be
offended by distasteful comments, the government should not create
hate speech restrictions solely for this reason. Furthermore, this paper
will consider the role of a “well-ordered society” in creating hate
speech regulations. In addition, this paper will discuss racist hate
speech and its possible harm on society. Lastly, this paper will unveil
the dilemma between hate speech policies at private and public
universities.

II. HISTORICAL BACKGROUND OF THE FIRST AMENDMENT

The First Amendment to the United States Constitution was
ratified in 1791. 7 Pursuant to the First Amendment, “Congress shall
make no law respecting an establishment of religion, or prohibiting
the free exercise thereof; or abridging the freedom of speech, or of the
press; or the right of the people peaceably to assemble; and to petition
the Government for a redress of grievances.” 8 Historically, each
7
U.S. CONST. amend. I.
8
Id.
 54

freedom carries significant weight, but the most important freedoms

are arguably speech and press; 9 and the prohibition of these freedoms
is unquestionably the reason the First Amendment was enacted. 10 If
this right were detached from personal liberties, then the
“marketplace of ideas” that proponents espouse would be
meaningless.

Hate Speech and the Alien and Sedition Acts of 1798

In 1798, Congress adopted the Alien and Sedition Acts of
11
1798. The Alien and Sedition Acts of 1798 resulted from divisions
between the Federalist and Republican parties. 12 In anticipation of a
possible war with France, the predominantly Federalist Congress
enacted four laws. 13 The Alien and Sedition Acts prohibited the
publication of:
[F]alse, scandalous, and
malicious writing or writings
against the government of the
United States, or either house of
the congress of the United
States, or the President of the
United States, with the intent to
defame . . . or to bring them . . .
into contempt or disrepute; or to
execute against them . . . hatred
of the good people of the United
States, or to stir up sedition

9
ERWIN CHEMERINSKY, CONSTITUTIONAL LAW 1205 (Aspen 3d ed. 2009).
10
Id. at 1206.
11
Id.
12
Wayne D. Moore, Reconceiving Interpretive Autonomy: Insights from Virginia
and Kentucky Resolutions, 11 CONST. COMMENT. 315, 317 (1994).
13
1 Stat. 596, Act of July 14, 1798 (“In 1798, the Federalist-controlled Congress
passed four acts to empower the president of the United States to expel dangerous
aliens from the country; to give the president authority to arrest, detain, and deport
resident aliens hailing from enemy countries during times of war; to lengthen the
period of naturalization for immigrants.”).
 55

within the United States, or to

excite any unlawful combination
therein, for opposing or resisting
any law of the United States, or
any act of the President of the
United States. 14

In other words, the Alien and Sedition Acts criminalized free speech.
The Alien and Sedition Acts of 1798 were repealed as a
violation of political speech, and the freedom to “speak freely about
whatever you want.” 15 This means that if individuals wanted to
exclaim “hateful” comments about the government or the President of
the United States, then he or she would be able to freely do so.
Therefore, the repeal of the Alien and Sedition Acts allowed for free
speech even when the comments were considered inappropriate,
distasteful, or offensive. The First Amendment was not enacted to
protect individuals from hearing these comments. On the contrary, a
person should be able to espouse a particular viewpoint, protected
under the First Amendment, without fear of retaliation. 16

III. SHOULD “FREEDOM OF SPEECH” BE CLASSIFIED AS A

FUNDAMENTAL RIGHT? IF SO, DOES IT EXTEND TO HATE
SPEECH?
The First Amendment is arguably the most publicly valued
provision of the United States Constitution. 17 Speech is the core of
our particular identity as citizens. 18 Furthermore, people are
guaranteed the right to express any thought, free from government

14
Id.
15
CHEREMINSKY, supra note 8, at 1206.
16
See generally Bradshaw v. Twp. of Middleton, 296 F. Supp. 526, 542 (D.N.J.
2003).
17
Tom Donnelly, Article, A Popular Approach to Popular Constitutionalism: The
First Amendment, Civic Education, and Constitutional Change, 28 QUINNIPIAC
L. REV. 321, 327 (2010).
18
Police Dept. of Chicago v. Mosely, 408 U.S. 92, 95 (1972).
 56

censorship. 19 When the government begins to censor without a

compelling or substantial state interest, First Amendment protections
are being destabilized. 20 Any restriction on expressive activity
because of its content would “completely undercut profound national
commitment to debate on public issues should be uninhibited robust,
and wide-open.” 21 As a general principle, the First Amendment
prevents the government from controlling what people see and hear. 22
However, freedom of speech has limitations; it does not embrace
certain categories of speech, including defamation, obscenity,
pornography, and pornography. 23 Hate speech may not necessarily be
placed in any of these unprotected categories. Furthermore,
restricting hate speech solely because of its content would have a
similar effect of reducing debate on controversial issues, and should
therefore, be protected speech under the First Amendment.

The Freedom of Speech and Fundamental Rights

Fundamental rights are those that are deeply rooted in the

Nation’s history and tradition and implicit in the scheme of ordinary
justice. 24 Justice Brandeis articulated the importance of the First
Amendment being construed as fundamental rights by stating, “[The]
freedom to think and to speak as you think are means indispensable to
the discovery and spread of political truth . . . . [I]t is hazardous to
discourage thought, hope, and imagination . . . .” 25
There are four major theories why the freedom of speech
should be classified as a fundamental right: (1) self-governance; (2)
19
Id.
20
Id.
21
Id. (quoting New York Times v. Sullivan, 376 U.S. 254, 270 (270)) (Landmark
federal defamation case that allowed public officials or public figures to sue for
defamatory comments, but only if they can assert actual malice. Actual malice is a
legal standard for the reckless disregard for the truth).
22
Ashcroft v. Free Speech Coal., 534 U.S. 234, 245 (2002).
23
Id. at 245-46.
24
Washington v. Glucksberg, 521 U.S. 702, 702-21 (1997).
25
Whitney v. California, 274 U.S. 357, 327 (1927) (Brandeis, J., concurring).
 57

discovering truth; (3) advancing autonomy; and most importantly, (4)

promoting tolerance. 26 Perhaps the most controversial out of the four
theories is the concept that hate speech promotes tolerance. For those
reasons, hate speech should be classified as a fundamental right, and
thus entitled to constitutional protection.

1. Self-Governance

Freedom of speech helps perform a check on the value of

government. 27 The First Amendment creates an open dialogue, and
allows individuals to make informed choices. 28 For example, in
elections, voters must acquire intelligence, integrity, and acumen
necessary to make an effective decision. 29 Robert Bork contends
political speech is the only speech that is constitutionally protected
under the First Amendment. 30 However, the Constitution is a living
document that changes and as times change. Thus, political speech is
not the only category of speech entitled to constitutional protection.
Accordingly, this protection should be extended to hate speech.

2. Discovering Truth

Truth is likely to be discovered from the discussion of diverse

perspectives. 31 Under the First Amendment, “there is no such thing

26
CHEMERINSKY, supra note 9, at 1208-1212 (“All are important in understanding
why freedom of speech is protected, in considering what expression should be
safeguarded and what can be regulated”).
27
Id. at 1208.
28
Id.
29
Vincent Blasi, The Checking Value in First Amendment Theory, 1977 AM. B.
FOUND. RES. J. 523 (1977).
30
Robert Bork, Neutral Principles and Some First Amendment Problems, 47 IND.
L.J. 1, 28 (1971).
31
Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting) (Five
Russians were convicted of “publishing language intended to incite, provoke, and
encourage resistance to the United States in the war with Germany, and that during
such war they incited and advocated curtailment of ordnance and munitions.”
Conviction affirmed).
 58

as a false idea. However pernicious an opinion may seem, we depend

for its correction not on the conscience of judges and juries but on the
competition of other ideas. But there is no constitutional value in
false statements of fact.” 32 Neither the intentional falsity nor the
careless error will advance a robust conception of speech and public
debate. 33 If a deceptive idea or opinion exists, the First Amendment
requires that the marketplace of ideas solve that problem, rather than
by government control. 34 This is not because the marketplace
necessarily separates truth from falsehood, but because people distrust
the government from doing so. 35
However, critics of the marketplace theory argue that simply
because ideas are in the market does not mean they are true. 36 Critics
contend that individuals with more resources will always have his or
her ideas at the forefront of the market. 37 Although this raises a
critical point of inequality of resources in the marketplace, two crucial
issues exist. First, the United States Supreme Court has repeatedly
held they are not in the ‘business’ of equalizing resources. 38
Although this statement was made in the context of campaign finance
reform, its application could apply to hate speech and the marketplace
of ideas. 39 Second, it is insulting to assume that simply because the
general public hears something, they will automatically believe it.
Silencing speech will not bring forth truth; requiring more speech
will. 40
32
Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-340 (1974).
33
Jonathan D. Varat, Deception and the First Amendment: A Central, Complex, and
Somewhat Curious Relationship, 53 UCLA L. REV. 1107, 1110 (2006).
34
Id. at 1111.
35
Id.
36
CHEMERINSKY, supra note 9, at 1210 (Lawrence Tribe observed , “[e]specially
when the wealthy have more access to the most potent of communication than the
poor, how sure can we be that ‘free trade of ideas’ is likely to generate truth.”).
37
Id.
38
See Buckley v. Valeo, 424 U.S. 1 (1976).
39
See generally id.
40
Varat, supra note 33, at 1121.
 59

In the marketplace of ideas, individuals can utilize their First

Amendment freedoms to make a statement that some will consider
offensive, and that others will believe are true. 41 In some instances,
the First Amendment may bring about “the clearer perception and
livelier impression of truth, produced by its collision with error.” 42
This false statement could have an enlightenment value attached to it,
and when juxtaposed with the truth, the truth will become clearer, and
thus contributing to the marketplace of ideas. 43 Certainly freedom of
speech has its problems, but the alternative of the government
determining the truth and censoring speech, is much worse. 44 With
respect to protecting First Amendment freedoms, “there is no
competing interest sufficient to override our precious freedom to
vigorously debate the wisdom of enacting a measure, even if that
debate contains falsehoods as well as truths.” 45

3. Advancing Autonomy

Exercising your ability to speak freely is a form of expression,

and thus entitled to constitutional protection. 46 Protecting speech is
critical to autonomy because expression is inherently important to
self-fulfillment. 47 According to Justice Thurgood Marshall, “[t]he
First Amendment serves . . . the needs of the polity [and] also those of
the human spirit – a spirit that demands self-expression.” 48
Therefore, the First Amendment is entitled to a special protection in
our society. 49
41
See State ex rel. Pub. Disclosure Comm'n v. 119 Vote No! Comm., 957 P.2d 691,
701 (Wash. 1998) (Talmadge, J., concurring, joined by Johnson, J.).
42
Varat, supra note 33, at 1119.
43
Id.
44
CHEMERINSKY, supra note 9, at 1210.
45
State ex rel. Pub. Disclosure Comm'n, 957 P.2d at 700.
46
CHEMERINSKY, supra note 9, at 1211.
47
Id.
48
Procunier v. Martinez, 416 U.S. 396, 427 (1974) (Marshall, J., concurring).
49
Snyder v. Phelps, 131 S.Ct. 1207, 1215 (2011).
 60

In recent years, critics of hate speech have argued for its

restriction because of how such expression demeans others. 50
However, although hate speech is repugnant, it allows individuals to
express personal viewpoints, and should be protected if it does not
incite or produce violence. 51 If the government regulated hate
speech, it would have the ability to manipulate unpopular speech, and
therefore control matters of public concern. 52 In a recent, and
unfortunately correct, United States Supreme Court decision in
Snyder v. Phelps, the Court held that speech on matters of public
concern are “is at the heart of First Amendment protection.”53 Speech
involves matters of public concern when it can “be fairly considered
as relating to any matter of political, social, or other concern to the
community.” 54 Governmental regulation of unpopular speech, such
as hate speech, is at a high-level of First Amendment values, and any
attempt to control this speech would contravene its purpose. 55

4. Promoting Tolerance

Tolerance should be a basic value in any civil society because

“free expression [and speech] provides a safety valve amidst social
conflict, allowing the non-violent release of tensions and hostilities
within a community and promoting the achievement of mutual
tolerance among antagonistic groups.” 56 For example, we know the
Nazis’ views are “wrong,” but we have to tolerate them because

50
See Richard Delgado, Words that Wound: A Tort Action for Racial Insults,
Epithets and Name-Calling, 17 HARV. C.R.-C.L. L. REV. 133 (1982) (arguing for
restriction of hate speech).
51
Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).
52
Snyder, 131 S.Ct. at 1215.
53
Id.
54
Id. at 1216 (quoting Connick v. Myers, 461 U.S. 138, 146 (1983)).
55
Id.
56
Josie Foehrenbach Brown, Article, Representative Tension Student Religious
Speech and the Public School’s Institutional Mission, 38 J.L. & EDUC. 1, 8 (2009).
 61

opening the door to constant suppression of speech, is much worse. 57

Tolerating offensive speech is not an evil, but rather, an affirmative
good. 58 Tolerance and acceptance are not synonymous; however,
both are crucial democratic value and because words can and often do
cause harm. 59 Certainly, no one contends the physical torture others
suffered as a result of their viewpoints requires tolerance. However,
their verbal expressions of hatred have constitutional undertones and
educative effects. 60
By requiring individuals to be tolerant of the most repugnant
speech, the First Amendment is being used as a tool of tolerance
throughout political life. 61 The purpose of free speech, and even hate
speech, is to teach self-control by forcing people to tolerate an
activity they would otherwise suppress. 62 Tolerance is a desirable
value and protecting unpopular or distasteful speech is itself an act of
tolerance. The free exchange of information and ideas is necessary to
a self-governing society. 63 Such tolerance serves as a model that
encourages and facilitates more tolerance throughout society. 64 Thus,
under a tolerance theory, even hate speech could help to contribute to
promoting a tolerant society.

57
David Strauss, Why Be Tolerant?, 53 U. CHI. L. REV. 1485, 1493 (1986)
(reviewing Lee Bollinger, The Tolerant Society: Freedom of Speech and Extremist
Speech in America (1986)).

58
Id.
59
Michael Kent, Curtis, Article, Be Careful What You Wish For: Gays, Dueling
High School T-Shirts, and the Perils of Suppression, 44 WAKE FOREST L. REV. 431,
434 (2009).
60
See id.
61
Strauss, supra note 57, at 1485.
62
Id. at 1486.
63
Id.
64
LEE BOLLINGER, THE TOLERANT SOCIETY: FREEDOM OF SPEECH AND EXTREMIST
SPEECH IN AMERICA 9-10 (Oxford University Press 1986).
 62

IV. CONTENT-BASED AND CONTENT-NEUTRAL

REGULATIONS OF HATE SPEECH

The First Amendment provides the principle that each person

should decide for himself or herself the ideas and beliefs deserving of
expression and adherence. 65 Government actions or regulations that
suppress speech because of its message contravene fundamental
rights provided by the First Amendment. 66 These restrictions “rais[e]
the specter that the Government may effectively drive certain ideas or
viewpoints from the marketplace.” 67 In other words, if the
Government is able to regulate speech and other forms of expressive
communication, then they will be able to control the marketplace of
ideas. 68 Certainly, controlling the marketplace of ideas is not the
purpose of the First Amendment, and the Government should not
have the ability to regulate hate speech simply because the language
contained therein will offend certain groups. 69
To determine which level of scrutiny to apply to Government
regulations, it is necessary to distinguish between content-based and
content-neutral regulations. 70 The principle determination of content-
neutrality is whether the government has adopted a regulation of
speech because of agreement or disagreement with the message
conveyed. 71 Generally, laws that distinguish favored speech and
disfavored speech based on the ideas or viewpoints expressed is
content-based. 72 However, if regulations or laws are imposed without
reference to the ideas or viewpoints expressed, the law is typically

65
Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641 (1994).
66
Id.
67
Id. (quoting Simon & Schuster, Inc. v. State Crime Victims Bd., 502 U.S. 106,
116 (1991)).
68
See id.
69
See generally Varat, supra note 35, at 1111.
70
Turner Broad. Sys., supra note 72.
71
Id. at 642. See also R.A.V. v. City of St. Paul, 505 U.S. 377, 386 (1992).
72
Id. at 643.
 63

content-neutral. 73 Regulations that are content-based trigger a strict-

scrutiny analysis whereas content-neutral laws trigger intermediate
scrutiny. 74
Laws that attempt to regulate hate speech or eliminate
expressive conduct do so on the basis of the ideas or viewpoints
expressed. 75 For that reason, suppressing speech of hateful words
deserves the highest level of constitutional scrutiny. A lesser standard
would undermine the purpose of the First Amendment.

V. UNPROTECTED SPEECH VERSUS PROTECTED SPEECH:

FIGHTING WORDS

Are fighting words and hate speech both entitled to

constitutional protection? Under the fighting words doctrine, fighting
words are not constitutionally protected under the First Amendment. 76
Similar to hate speech, fighting words constitute words that others
may find offensive, but do not involve groups who were traditionally
subject to discrimination. 77 Fighting words are “those which by
their very utterance inflict injury or tend to incite an immediate
breach of the peace.” 78 Because these words would lead to a possible
retaliatory act, they should not be entitled constitutional protection,
and the government should have the right to intervene to prevent
violent acts. 79 As long as the particular words would cause a
reasonable person to retaliate, then the words are classified as fighting
words. 80

73
Id.
74
See generally R.A.V., 505 U.S. at 377.
75
Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 207 (3d Cir. 2001) (citing
R.A.V., 505 U.S. at 377)).
76
Id.
77
R.A.V., 505 U.S. at 377.
78
Chaplinksy v. New Hampshire, 315 U.S. 568, 572 (1942).
79
See State v. Gaymon, 96 Conn.App. 244, 249, 899 A.2d 715, 720 (2006).
80
Id.
 64

Fighting Words in the LGBT Community

In Street v. New York, a man burned an American flag while

simultaneously uttering, “We don’t need no damn flag . . . . If they let
that happen to Meredith we don’t need an American flag.” 81 Though
some listeners may have wanted to retaliate, the Court concluded that
the language was not enough to prove the ‘average’ person to retaliate
and cause breach of peace. 82 Therefore, most courts will look at the
message and determine if an average or reasonable person is moved
to retaliate. 83
Under the doctrinal framework of fighting words, speech must
be conveyed to a particular individual. 84 Thus, whether concerning
sexual orientation or otherwise, if the speaker directs his expression at
a particular person, then the fighting words exception to free speech
should be held inapplicable. For example, in Gilles v. Davis, the
Court held that a preacher’s words and conduct constituted fighting
words because they would cause a reasonable person to retaliate. 85 In
Gilles, a preacher went to a college campus to preach against
homosexuality. 86 Ultimately selecting a student who identified as a
Christian and lesbian; the preacher exclaimed, “Oh, my, you ma’am
are most confused . . . . She’s a lesbian for Jesus. Do you lay down
with dogs? . . . . Can you be a bestiality lover and a Christian also?” 87
The court opined that the preacher did not retain a constitutional right
of making such statements because his speech was of such slight
social value as a step to truth, that it was outweighed by societal
interests. 88
81
Street v. New York, 394 U.S. 576, 592 (1969).
82
See id.
83
Id.
84
See Hess v. Indiana, 414 U.S. 105, 108 (1973).
85
See Gilles v. Davis, 427 F.3d 197 (3d Cir. 2005).
86
Id. at 201.
87
Id. at 205 (The court ultimately held that although he had the right to speak
generally to a crowd regarding his views, his epithets directed at the woman were
abusive and constituted fighting words).
88
Id.
 65

VI. CONSTITUTONALLY PROTECTED SPEECH: HATE

SPEECH

Hate speech “[c]arries no meaning other than the expression

of hatred for some group, such as a particular race, especially in
circumstances in which the communication is likely to provoke
violence.” 89 R.A.V. v. City of St. Paul was one of the first cases
concerning hate speech laws.
In R.A.V., several teenagers assembled a cross by taping
together broken chair legs. 90 They allegedly burned the cross in the
yard of a Black family that lived directly across the street. 91 The
teenagers were accused of violating the St. Paul Bias-Motivated
Crime Ordinance. 92 The ordinance provided:
Whoever places on public or
private property a symbol,
object, appellation,
characterization or graffiti,
including, but not limited to, a
burning cross or Nazi swastika,
which one knows or has
reasonable grounds to know
arouses anger, alarm or
resentment in others on the basis
of race, color, creed, religion or
gender commits disorderly
conduct and shall be guilty of a
misdemeanor. 93

89
BLACK’S LAW DICTIONARY 1529 (9th ed. 2009).
90
R.A.V. v. City of St. Paul, 505 U.S. 377, 379 (1992).
91
Id.
92
MINN. LEGIS. CODE § 298.02 (1990).
93
R.A.V., 505 at 380.
 66

The petitioner moved to dismiss this violation and contended that the
statute was overbroad, and therefore unconstitutional. 94 The trial
court agreed, but the Minnesota Supreme Court reversed. 95
The Government may not create regulations that effectively
drive their ideas or views in the marketplace. 96 In R.A.V., the
ordinance was unconstitutional because it attempted to regulate ideas
and viewpoints expressed by individuals. 97 The First Amendment
does not permit the City of St. Paul to create an ordinance that
imposes prohibitions on those speakers who express views on
disfavored subjects. 98

VII. DOES RACIST HATE SPEECH HAVE A CAUSAL

CONNECTION TO SOCIAL HARMS?

Racist hate speech is alleged to cause a wide variety of

harms. 99 It is argued that hate speech causes racial violence, racial
discrimination, and political disenfranchisement. 100 Furthermore,
there are arguments that harms caused by racist hate speech outweigh
the harms caused by its regulation. 101 However, I propose that these
harms do not develop from hate speech, but from something already
present. Suppressing speech only causes society to believe the world
is a better place because overt expressions of racism are not present.
Critics argue that hate speech marks people of color as
socially subordinate to white people and makes discriminatory
behavior acceptable. 102 Critics also argue that racist hate speech
94
Id.
95
Id.
96
R.A.V., 505 at 388.
97
See id. at 391.
98
Id.
99
Ishani Maitra & Kate McGowan, On Racist Hate Speech and the Scope of a Free
Speech Principle, 23 CAN. J.L. & JURIS. 343, 364 (2010).
100
Id.
101
Id.
102
Id. at 369.
 67

continues a system of racism in America. 103 Absent criminal conduct

and physical discriminatory behavior, individuals should possess the
right to make statements others consider offensive. Racism is more
than race hatred or prejudice. 104 Rather, racism is the structural
subordination of a group based on an idea of racial inferiority. 105
Although subordination is not an affirmative good, silencing these
statements because of disapproval would be worse. According to Dr.
Cornel West, "to engage in a serious discussion of race in America,
we must begin not with the problems of black people but with . . .
historic inequalities and longstanding cultural stereotypes. How we
set up the terms for discussing racial issues shapes our perception and
response to these issues.” 106 Therefore, racism does not develop from
racist hate speech; it is a derivative from systematic inequalities, and
it is necessary to confront those inequalities first before silencing a
person for making distasteful statements. 107
Furthermore, critics attempt to argue that hate speech should
be controlled because “(1) equality and human dignity should be the
guiding principles in First Amendment jurisprudence; (2) speech is
already regulated in various contexts; and (3) the United States
Constitution, most notably the Fourteenth Amendment.” 108 However,
the question we should ask is if the government is permitted to
continuously regulate all areas of speech, then when will enough be
enough? Although the right to free speech does not mean that a
person can go around and use any insulting comment, it does mean
that the government may not unreasonably interfere with our First
Amendment freedoms. 109

103
Id.
104
Mari Mastuda, Public Response to Racist Hate Speech: Considering the Victim’s
Story, 87 MICH L. REV. 2320, 2358 (1989).
105
Id.
106
See Cedric Merlin Powell, The Mythological Marketplace of Ideas, 12 HARV.
BLACKLETTER L.J. 1 (1995).

107
Id.
108
Id. at 48.
109
Rychlak, supra note 1, at 408.
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IX. UNIVERSITY HATE SPEECH POLICIES

A. Public Universities

While the Supreme Court has generally held that the First
Amendment extends to state university campuses, it also held that a
university’s mission is education and has never interpreted the First
Amendment to deny a university’s authority to impose reasonable
regulations compatible with that mission upon the use of its campus
and facilities.” 110 The university has generally created a forum that is
open to its student body. 111
Although individuals retain First Amendment protections, the
university is one of the few settings where hate speech should be
severely limited. The Court has held a “university’s right to exclude .
. . First Amendment activities that . . . substantially interfere with the
opportunity of other students to obtain an education.” 112
Furthermore, exposure to hate speech interferes with the enjoyment of
educational opportunities in the university context, which is important
to protect. 113 At many colleges and universities, university hate
speech policies serve the purpose of preventing interference with a
minority groups’ educational experience. 114
At Emory University, a Black freshman who went to class,
came back to her dormitory and noticed her teddy bear was slashed,
her clothes were soaked with bleach, and “Nigger hang” was written
in lipstick on her wall. 115 The student collapsed and was hospitalized
due to trauma. 116 Legal recourses must exist for students like this
college freshman; thus, a different analysis for hate speech is
necessary.
110
See Widmar v. Vincent, 454 U.S. 263, 268 (1981).
111
Id. at 267.
112
Healy v. James, 408 U.S. 169, 188-89 (1972).
113
Melissa Webermann, University Hate Speech Policies and the Captive Audience
Doctrine, 36 OHIO N.U. L. REV. 553, 559 (2010).
114
Id.
115
Id. at 553.
116
Id.
 69

Regulated expression continues to raise troubling issues

concerning students’ free speech rights at public universities. 117
Since the late 1980s, universities have encountered many hate speech
problems on campus. 118 Increasing incidents have caused many
university officials to enact rules that regulate conduct that regulate
behavior of directed at minority groups. 119 However, public
universities have a difficult situation in enacting hate speech
regulations that will pass constitutional scrutiny. 120
In the university setting, the marketplace of ideas is robust.
Creating hate speech policies will not erode this important concept.
The First Amendment solves the conflict between public university
policies promising free speech and its speech-restrictive policies by
rendering the policies unconstitutional. 121

B. Private Universities

Although the First Amendment answers the conflict regarding

a public university’s hate-speech policy, a similar conflict is not
resolved at private universities. 122 Private colleges are not state
actors; thus, the First Amendment does not restrict private universities
from creating hate speech restrictive policies. 123
A private association’s inability to exclude individuals who
express beliefs different to the association’s can interfere with the free
speech and association rights. 124 For example, a former policy at
Stanford University proscribed insulting speech to groups on the basis

117
Id.
118
Id.
119
Id. at 554.
120
Weberman, supra note 113.
121
Kelly Sabaryn, Free Speech at Private Universities, 39 J.L. & EDUC. 145 (2010).
122
Id. at 180.
123
Id. at 145.
124
Id. at 155. See also Boy Scouts of Am. v. Dale, 530 U.S. 640, 656 (2000).
 70

of sex, gender, sexual orientation, religion. 125 Students sued Stanford

for this policy under the Leonard Law as a violation of free speech. 126
The court concluded that because the Leonard Law 127 only
“prevent[ed] Stanford from proscribing its students’ speech on
campus,” then Stanford’s anti-harassment policy had to be
enjoined. 128
A reasonable solution for private university speech-restrictive
policies is contract law. The “basic legal relation between a student
and a private university or college is contractual in nature . . . .
[R]egulations of the institution made available to the matriculant
become a part of the contract.” 129 In interpreting ambiguities in
contractual relations, the court described the commonly used method
of: “The proper standard for interpreting the contractual terms is that
of ‘reasonable expectation--what meaning the party making the
manifestation, the university, should reasonably expect the other party
to give it.” 130 The proper standard for interpreting the contract should
be reasonable expectations, and any ambiguities should be construed
against the drafter. 131
Under the contract law, “[a] private university may establish
the policies it deems appropriate as long as it executes them in good

125
Id. (Corry v. Leland Stanford Jr. Univ., No. 740309, 1 (Cal. Sup. Ct., Feb. 27,
1995), available at http://
www.ithaca.edu/faculty/cduncan/265/corryvstanford.htm).
126
Id.
127
EDUCATION CODE § 94367(a) (“No private postsecondary educational
institution shall make or enforce a rule subjecting a student to disciplinary sanctions
solely on the basis of conduct that is speech or other communication that, when
engaged in outside the campus or facility of a private postsecondary institution, is
protected from governmental restriction by the First Amendment to the United
States Constitution or Section 2 of Article I of the California Constitution”).
128
Corry, No. 740309, at 35.
129
Sarabyn, supra note 121, at 159 (quoting Ross v. Creighton Univ., 957 F.2d 410,
416 (7th Cir. 1992)).
130
Id.
131
Restatement (Second) of Contracts § 206 (1981) (ambiguities in a standardized
agreement interpreted against the drafter).
 71

faith.” 132 Students and faculty can expect the university to abide by
its promises as reasonably understood. 133 Abiding by the understood
promises helps to strike the proper balance between “[t]he university's
right to act without undue judicial interference and students' right to
receive their degree if they abide by the university's advertised
terms.” 134
Applying a contractual framework to written university
policies will respect the universities' right to First Amendment
protections as well as students, faculty, and donors' reasonable
expectations of what the university provides. 135 It is my suggestion
that courts hold private colleges and universities to their promises of
free speech because of the importance of First Amendment
protections in the university setting. 136
C. Best Solution: “Free Speech Zones” at Public and Private
Universities

Certainly, an individual retains privacy interests at private

universities, but his or her constitutional rights are lessened when
entering a private college. The Courts suggests the speaker’s interests
are the central focus of the free speech analysis. 137 However, in some
instances, an individual’s unwillingness to hear speech may outweigh
the speaker’s right to say it. 138 The most reasonable solution for both
public and private colleges and universities is to establish a “free
speech zone” at one section of campus. 139

132
Sarabyn, supra note 121, at 164.
133
Id.
134
Id.
135
Id. at 181.
136
See id.
137
Webermann, supra note 113, at 553.
138
Id.
139
See generally id. at 566.
 72

Hate speech policies are different from free speech zones

because free-speech zones limit student expression to defined areas of
campus, as opposed to eliminating speech altogether. 140 Often the
zones permit rallies, demonstrations, or speeches in selected areas
only. 141 Theoretically, under the public-forum doctrine, free speech
zones are permissible limitations on speech if they are (1) justified
without reference to content; (2) narrowly tailored to serve a
significant governmental interest; and (3) contains alternative
channels of the information. 142 A problem could arise if university
officials were bestowed with discretion to approve speech before it is
placed at the free speech zone because this could lead the government
official to prohibit unpopular, but protected, speech. 143 Allowing
university officials to approve speech before it is placed at the free
speech zones would directly contradict the purpose of the zones.
Nonetheless, free speech zones are the most reasonable solution of
balancing the speaker’s interest to free speech and the listener’s
interest of avoiding the speaker’s statements.

X. CONCLUSION

Hate speech laws neither reduce discrimination and violence

nor will they force others to become good, tolerant citizens. Speech-
restrictive policies only aim to silence the speaker from making
distasteful and offensive remarks that may be protected under the
First Amendment’s Free Speech Clause. However, when hate speech
transforms into hate crimes, regulations may be established to limit
this criminal conduct. Violating an individual’s ability to speak freely
without governmental intrusion has the potential of opening
Pandora’s Box to many constitutional infringements.
The right to free speech includes “the right to attempt to
persuade others to change their views, and may not be curtailed
140
FIRE, Speech Code Issues, available at
http://www.thefire.org/index.php/article/5675.html#zones (last visited Nov. 21,
2010) (discussing forms of speech code policies and issues that could possibly
arise).
141
Id.
142
See Police Dept. of the City of Chicago v. Mosley, 408 U.S. 92 (1972).
143
Weberman, supra note 113, at 553.
 73

simply because the speaker's message may be offensive to his

audience.” 144 Thus, the marketplace of ideas either permits us to
change a person’s thoughts or allow them to live in blissful ignorance.
Imagine walking down the street in DuPont Circle at the
“National Gay Pride Parade” in Washington, D.C. Audience
members are enjoying themselves while listening to Cher, Britney
Spears, and Lady Gaga. Suddenly, the audience hears members of
the nearest Christian church exclaim, “Go home faggot . . . . We do
not want you here.” At this point, something unexpected happened.
With a smile, the audience member turns around and responds “this
‘faggot’ is the Student Bar Association President at North Carolina
Central University School of Law . . . . Thank you very much.”

144
Id. at 716.
74