Understanding Hate Speech as a Communication Phenomenon: Another View on Campus Speech Code Issues
Lee, Jae-Jin, Communications and the Law
Of the complex issues that American society faces, hate speech, entangled with multiculturalism and equality problems, has been the "hardest free speech question."(1) Hate speech is defined as an expression that is abusive, insulting, intimidating, harassing, or which may incite to violence, hatred, or discrimination based on race, ethnicity, religion, or sexual orientation.(2) While widespread hate speech largely reflects conditions of American society, it has special meanings for the academy where respect for others and a tolerant atmosphere are of great value.
Colleges and universities remain a special area of protection where First Amendment rights of expression are concerned.(3) As the tension among students, faculty, and administrators over racial, religious, and sexual orientation increased,(4) however, more and more schools adopted campus speech codes during the 1980s,(5) which have resulted in a huge range of complicated debates.(6) In the same context, some great efforts to resolve the constitutional issues have been made on the basis of various "First Amendment tests and exceptions, including fighting words, captive audience, public forum, harassment, and time, place and manner restrictions."(7)
The U.S. Supreme Court has not yet specifically adjudicated the constitutionality of a campus hate speech code. In the wake of R.A.V. v. City of St. Paul,(8) however, the permissible scope of any hate speech code adopted by a public institution has been restricted sharply. This case has accelerated the debates regarding campus speech codes.
Debates about campus codes have generated a great body of work, most of which employs social and cultural perspectives analyzing the effects of hate speech on minority groups. There has been little consideration of hate speech as a communication phenomenon, however, although this approach can provide a framework to fully understand the nature of hate speech.
The main purpose of this article is to shed light from a communication perspective on the rationales of the courts and the debates of the academy on hate speech code issues. This article first examines the jurisprudence of the speech code cases. Second, it briefly reviews contemporary legal and academic debates on hate speech issues. Finally, it analyzes the nature of hate speech from a communication perspective. In conclusion, this article argues that the First Amendment issues about hate speech on campus should be reconsidered from the direction of speech as well as content and effects.
I. RATIONALES IN RECENT HATE SPEECH CODE CASES
In Doe v. University of Michigan,(9) the first federal court case, the court found that the university's hate speech code violated the First Amendment because it was "overbroad and excessively vague."
The policy of University of Michigan had been adopted by its regents in an attempt to curb an alleged rising tide of racial intolerance and harassment on campus. The court first acknowledged the fundamental value of conflict and said, "It is an unfortunate fact of our constitutional system that the ideas of freedom and equality are often in conflict."(10)
The court held, however, that the policy swept within its scope a significant amount of "verbal conduct" or "verbal behavior" that was unquestionably protected speech under the First Amendment. Despite the best of intentions, said the court, the university could not establish an antidiscrimination policy that had the effect of prohibiting speech because it disagreed with ideas or messages being conveyed.
The court added that even though in certain circumstances racial and ethnic epithets, slurs, and insults might constitutionally be prohibited by the university,(11) the university policy did not make clear exactly what type of speech was to be prohibited, making students conjecture at its meaning, and did not provide adequate warning about precisely what speech might constitute a violation. …