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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.
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Ronald J. Rychlak, Compassion, Hatred, and Free Expression, 27 MISS. C. L. REV. 407, 408 (2008). Id. JOHN STUART MILL, ON LIBERTY 90-91 (Penguin Books Ltd. 1974) (1859).

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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
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Id. Id. at 66.

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

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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
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U.S. CONST. amend. I. Id.

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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 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
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ERWIN CHEMERINSKY, CONSTITUTIONAL LAW 1205 (Aspen 3d ed. 2009). Id. at 1206. Id.

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Wayne D. Moore, Reconceiving Interpretive Autonomy: Insights from Virginia and Kentucky Resolutions, 11 CONST. COMMENT. 315, 317 (1994).

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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.”).

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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

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Id. CHEREMINSKY, supra note 8, at 1206.

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

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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)
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Id. Id.

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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).
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Ashcroft v. Free Speech Coal., 534 U.S. 234, 245 (2002). Id. at 245-46. Washington v. Glucksberg, 521 U.S. 702, 702-21 (1997). Whitney v. California, 274 U.S. 357, 327 (1927) (Brandeis, J., concurring).

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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
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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”). Id. at 1208. Id.

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Vincent Blasi, The Checking Value in First Amendment Theory, 1977 AM. B. FOUND. RES. J. 523 (1977). Robert Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1, 28 (1971). 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).
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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
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Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-340 (1974).

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Jonathan D. Varat, Deception and the First Amendment: A Central, Complex, and Somewhat Curious Relationship, 53 UCLA L. REV. 1107, 1110 (2006). Id. at 1111. Id.

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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.”). Id. See Buckley v. Valeo, 424 U.S. 1 (1976). See generally id. Varat, supra note 33, at 1121.

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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
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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.). Varat, supra note 33, at 1119. Id. CHEMERINSKY, supra note 9, at 1210. State ex rel. Pub. Disclosure Comm'n, 957 P.2d at 700. CHEMERINSKY, supra note 9, at 1211. Id. Procunier v. Martinez, 416 U.S. 396, 427 (1974) (Marshall, J., concurring). Snyder v. Phelps, 131 S.Ct. 1207, 1215 (2011).

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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

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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). Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). Snyder, 131 S.Ct. at 1215. Id. Id. at 1216 (quoting Connick v. Myers, 461 U.S. 138, 146 (1983)). Id.

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Josie Foehrenbach Brown, Article, Representative Tension Student Religious Speech and the Public School’s Institutional Mission, 38 J.L. & EDUC. 1, 8 (2009).

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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.

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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)). Id.

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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).
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See id. Strauss, supra note 57, at 1485. Id. at 1486. Id.

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LEE BOLLINGER, THE TOLERANT SOCIETY: FREEDOM OF SPEECH AND EXTREMIST SPEECH IN AMERICA 9-10 (Oxford University Press 1986).

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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 In other words, if the viewpoints from the marketplace.” 67 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 contentneutrality 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

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Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641 (1994). Id.

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Id. (quoting Simon & Schuster, Inc. v. State Crime Victims Bd., 502 U.S. 106, 116 (1991)). See id. See generally Varat, supra note 35, at 1111. Turner Broad. Sys., supra note 72. Id. at 642. See also R.A.V. v. City of St. Paul, 505 U.S. 377, 386 (1992). Id. at 643.

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

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Id. See generally R.A.V., 505 U.S. at 377.

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

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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
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Street v. New York, 394 U.S. 576, 592 (1969). See id. Id. See Hess v. Indiana, 414 U.S. 105, 108 (1973). See Gilles v. Davis, 427 F.3d 197 (3d Cir. 2005). Id. at 201.

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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). Id.

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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

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

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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
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Id. Id. R.A.V., 505 at 388. See id. at 391. Id.

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Ishani Maitra & Kate McGowan, On Racist Hate Speech and the Scope of a Free Speech Principle, 23 CAN. J.L. & JURIS. 343, 364 (2010). Id. Id. Id. at 369.

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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
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Id.

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Mari Mastuda, Public Response to Racist Hate Speech: Considering the Victim’s Story, 87 MICH L. REV. 2320, 2358 (1989). Id.

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See Cedric Merlin Powell, The Mythological Marketplace of Ideas, 12 HARV. BLACKLETTER L.J. 1 (1995). Id. Id. at 48. 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.
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See Widmar v. Vincent, 454 U.S. 263, 268 (1981). Id. at 267. Healy v. James, 408 U.S. 169, 188-89 (1972).

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Melissa Webermann, University Hate Speech Policies and the Captive Audience Doctrine, 36 OHIO N.U. L. REV. 553, 559 (2010). Id. Id. at 553. Id.

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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

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

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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). Id.

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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”). Corry, No. 740309, at 35.

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Sarabyn, supra note 121, at 159 (quoting Ross v. Creighton Univ., 957 F.2d 410, 416 (7th Cir. 1992)). Id.

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131

Restatement (Second) of Contracts § 206 (1981) (ambiguities in a standardized agreement interpreted against the drafter).

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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. Id. Id. Id. at 181. See id. Webermann, supra note 113, at 553. Id. See generally id. at 566.

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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. Speechrestrictive 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). Id. See Police Dept. of the City of Chicago v. Mosley, 408 U.S. 92 (1972). Weberman, supra note 113, at 553.

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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.

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