Legal Realism and the Controversy over Campus Speech Codes

By Delgado, Richard | Case Western Reserve Law Review, Winter 2018 | Go to article overview

Legal Realism and the Controversy over Campus Speech Codes


Delgado, Richard, Case Western Reserve Law Review


ABSTRACT

Martin Luther King Jr. and Derrick Bell both urged all Americans, white as well as nonwhite, to speak respectfully and, if possible, lovingly to and about each other. Decades later, a vigorous debate has broken out over what we now call "hate speech" and whether society may, and should, prohibit it. Building on previous scholarship, we show that this debate has both a doctrinal and a policy aspect, and that with the advent of legal realism, the doctrinal debate about the constitutionality of hate-speech restrictions is largely over. Much of the energy of the free-speech camp now goes to arguing that even if narrowly drawn measures against hate speech are constitutional, they are unwise as a matter of policy.

We consider several such arguments, concluding that each is much less compelling than its partisans believe. We also examine a drawing-the-line argument that pretends that permitting a decisionmaker to adjudicate offenses will lead to ever-wider incursions against protected speech, and ultimately a regime of official censorship. This argument we also find lacking, for several reasons. We conclude that American institutions are free to enact reasonable hate-speech restrictions in times, like ours, when minorities and women are under siege.

CONTENTS

INTRODUCTION

I.    ARGUMENT NUMBER 1: THE EXPLODING PRESSURE VALVE
II.   ARGUMENT NUMBER 2: THE RISK OF REVERSE ENFORCEMENT
III.  ARGUMENT NUMBER 3: FREE SPEECH AS MINORITIES' BEST FRIEND
IV.   ARGUMENT NUMBER 4: MORE SPEECH (TALKING BACK TO THE AGGRESSOR)
V.    ARGUMENT NUMBER 5: A WASTE OF TIME OR RESOURCES
VI.   ARGUMENT NUMBER 6: TILTING AT WINDMILLS
VII.  ARGUMENT NUMBER 7: HATE SPEECH AS BELLWETHER
VIII. ARGUMENT NUMBER 8: WALLOWING IN VICTIMIZATION?
IX.   ARGUMENT NUMBER 9: CLASSISM
X.    ARGUMENT NUMBER 10: WHERE DO YOU DRAW THE LINE?
CONCLUSION: STRIKING THE BALANCE WITH AN EYE TO THE TIMES

INTRODUCTION

At least 200 universities and many workplaces have enacted policies against hate speech--coarse, cruel language and invective--aimed at making other people, often minorities or women, feel uncomfortable and unwelcome. (1) Many administrators of Internet sites have been doing so as well. (2) These measures should come as little surprise, for most social scientists now agree that language of this kind is physically and psychologically harmful to victims and contributes to social stratification and hierarchy. (3)

When courts struck down early student conduct codes at Stanford, (4) Michigan, (5) and Wisconsin, (6) drafters became much more careful, so that a new generation of rules is likely to survive judicial scrutiny, much as federal laws forbidding workplace harassment already have done. (7) The slow movement away from First Amendment legal formalism, (8) with its trove of cliches, maxims, (9) special doctrines, and per se rules, (10) and toward legal realism, (11) promises to accelerate this trend. (12) The current debate thus tends to turn on whether prohibition is wise or fair, not whether it is constitutional--in short, policy arguments, pro and con.

This Article accordingly considers a number of the most common arguments against hate-speech regulation, particularly at universities, concluding that each is flawed. As a result, educational institutions are free to enact such codes if they wish and are prepared to draft them carefully and narrowly.

For example, many opponents of hate-speech regulation argue that regulation will lead to increasing controls and, ultimately, a regime of official censorship. (13) Others urge that the best response to bad speech is more speech, (14) or that suppressing hate speech is unwise because it serves as a pressure valve guarding against a more dangerous explosion later. (15) Still others assert that freedom of speech has served historically as minorities' best friend, thus they, most of all, should hesitate to suppress it. (16) Supporters of hate-speech regulation have countered each of these arguments. …

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