LEGAL REALISM AND THE CONTROVERSY OVER CAMPUS SPEECH CODES.

• Author: Delgado, Richard

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.

Before beginning, a word about norms and social change. Today, the legal norm according to which speech in our society should generally be free, and the social norm which holds that hate speech is offensive and harmful, are misaligned. (17) Twenty years ago, they were not. The social norm against hate speech was weak; one could assert, back then, that what "Joe" just said was hate speech--what of it? (18) Now one cannot. If you do, others will think ill of you and even worse of the speaker. (19) If Joe persists in his ways, the university may throw the book at him and invite him to continue his education elsewhere. Either way, his friends will be appalled and stop inviting him to parties.

In short, the social norm against hate speech is well established. The law, however, lags behind, although courts are beginning to stretch existing legal doctrines such as intentional infliction of emotional distress or hostile workplace to find for the victim of hate speech. (20) They are especially sympathetic if the victim is a young person, the perpetrator an authority figure like a teacher or workplace supervisor, and the victim trapped and unable to escape the castigation. (21)

As though recognizing that the First Amendment is unlikely to protect hate speech for much longer, its defenders have turned to policy arguments. It may well be, they say, that colleges and universities may enforce narrowly drawn hate-speech codes, especially on campuses wracked with unrest. But they should hesitate to do so because the effort will backfire or fail to accomplish its aims.

As we shall see, however, these policy arguments are no more persuasive than is First Amendment absolutism--the idea that all speech should be completely free, with very few or no exceptions. (22) Let us now look at a number of such arguments, beginning with some associated with neoliberals of the ACLU persuasion. (23)

1. ARGUMENT NUMBER 1: THE EXPLODING PRESSURE VALVE

   The so-called pressure valve argument holds that rules prohibiting hate speech are counterproductive because they magnify the danger that minorities suffer as a result of racism. (24) Requiring racists to repress expressing their dislike of minorities, gays, women, or immigrants merely increases the likelihood that they will say or do something even more hurtful later. (25) Free speech, it is said, serves as a pressure valve, allowing animosity to discharge itself before it reaches a dangerous level. If minorities and their defenders understood this mechanism, they would desist from demanding anti-hate speech rules and conduct codes.

   The argument is paternalistic; it says we are denying you what you say you want, and for your own good. (26) The rules will merely make matters worse. If you knew where your best interest lay, you would desist from demanding them. (27)

   How should we see this argument? It may well be that hate speech makes some speakers feel better, at least momentarily. But permitting this form of speech to occur freely does not render the victim safer. Evidence shows that allowing an individual to say or do hateful things to others increases, rather than decreases, the probability that he or she will do so again. (28) Moreover, bystanders, observing what the first person has done with impunity, may follow suit. (29) Even simple animals act on the basis of perceptual categories. Poultry farmers know that a chicken with a speck of blood may be attacked and pecked to death by others in his flock. (30) With chickens, of course, the categories are neural and innate, functioning at a level of instinctive behavior rather than language. But with humans, social science experiments show that much the same holds true and that the way we categorize others influences how we treat them. An Iowa teacher's "blue eyes/brown eyes" experiment showed that even a short-term assignment of stigma could alter behavior and school performance. (31) At Stanford, Professor Philip Zimbardo assigned students to take on the roles of prisoner and prison guard, but had to discontinue the experiment when some of the subjects started taking their roles too seriously. (32) At Yale, Professor Stanley Milgram showed that subjects could be made to violate their conscience if an authority figure ordered them to do so and assured them this was permissible and safe. (33)

   Allowing people to mistreat others, then, makes them more aggressive, not less. Once someone forms the mental category of deserved-victim--someone who "had it coming"--the person's behavior may advance to include bullying and physical violence. (34) Pressure valves may be safer after letting off steam. Human beings are not.

2. ARGUMENT NUMBER 2: THE RISK OF REVERSE ENFORCEMENT

   Other advocates posit that hate-speech rules are sure to set back the cause of minorities because the rules will be turned against minorities themselves. (35) A vicious put-down of a black person from a white may go unpunished--perhaps because the hearing officer deems it inconsequential or a mere first offense--but even a mild expression of irritation by a black motorist to a traffic cop or a student to a teacher will bring harsh retribution. (36) The reverse-enforcement argument is plausible because some authority figures do dislike minorities who speak out of turn and find reasons to punish them. Nadine Strossen, former president of the ACLU, asserted that in Canada, following a Supreme Court decision upholding a national anti-hate speech law, prosecutors began charging black and native people with hate offenses. (37)

   But empirical evidence shows that this is the exception, not the rule. FBI reports show that hate crimes are committed much more frequently by whites against blacks than the other way around, (38) and the same appears to be true for hate speech. Whites commit it, blacks and Latinos, as a rule, do not. (39)

   Racism and racial insults, of course, are not a one-way street; some minorities have harassed and badgered whites and members of minority groups other than their own...