The First Amendment and Hate Speech on College Campuses

Cheyanne Daniels

November 15th, 2017

Chicago Cultural Center – Cheyanne Daniels

On Wednesday, November 8, the National Constitution Center held a Town Hall Debate at the Chicago Cultural Center to discuss The First Amendment’s effect on college and university campuses.

According to the National Constitution Center’s website, Congress established the Center in an effort to “disseminate information about the United States Constitution on a non-partisan basis in order to increase the awareness and understanding of the Constitution among the American people.”

The debate held on November 8 attempted to determine whether or not the First Amendment applies to colleges and universities. The First Amendment of the Constitution guarantees individuals freedom of speech. However, many wonder if the idea of freedom of speech stops at the preaching of hate speech.

Therefore, the question tackled at the debate was whether or not colleges and universities have the right to define and prohibit hate speech on campuses – if they do, does this not take away individuals’ right to freedom of speech?

In a poll taken before the different debate began, 24% of those present at the event voted that universities did, in fact, have the right to define and prohibit hate speech, while 76% said universities did not.

Professors from across the country sat down to discuss the different sides of the issue, including University of Chicago’s Edward H. Levi Distinguished Service Professor of Law, Geoffrey R. Stone.

According to Stone, “The Supreme Court has taken the position that there is a realm of restrictions on speech. The [restrictions] that are problematic are those that forbid the expression of a particular point of view. And the government has decided that certain viewpoints are impermissible, [which] puts such a serious intrusion into the marketplace of ideas…

“The same way a university cannot prohibit speech today that advocates communism or advocates gay rights or that proposes abortion, it cannot restrict speech that advocates or is regarded as hate speech. I say regarded because one of the problems with the concept of hate speech is [that] it doesn’t have any accepted or understandable definition.”

Defining hate speech became a central question during the debate, a question that remained mostly unanswered and focused on hypothetical situations and personal beliefs.

Stone argued that what is needed in discerning what is and is not hate speech is the ability to sit down and defend ideas without offending other individuals. Discussions are necessary, but so is civility. Both of which, Stone argued, do not come from censorship by the school.

“What makes a university a university,” Stone explained, “is the fact that it is open to all ideas, to  challenging ideas, and should not be playing the role of censor.”

Detroit Mercy School of Law’s Professor Khaled A. Beydoun was also present at the debate. In his response to Stone, Beydoun explained that, theoretically, he agrees that free speech should be protected on campuses.

However, Beydoun went on to say that when making decisions on whether the free speech applies to hate speech, one must look at the current circumstances of the country.

“First of all, obviously, we see a whole league of white supremacy, racism, Islamophobia, xenophobia, and anti-Semitism, essentially emboldened by a State — state policy and state rhetoric coming from the very highest office of the land,” Beydoun explained, “Second, there’s this intersecting moment of the erosion of Affirmative Action.”

This erosion of Affirmative Action, Beydoun explained, leads to public universities having a less diverse body on their campuses.

While seemingly unproblematic, these less diverse campuses are unintentionally encouraging hate speech. Schools with less diversity are taking a more neutral stance on the topic of hate speech, neither defining nor prohibiting hate speech on their campuses.

“Private institutions tend to be a little more tolerant because they have more leeway legally to be tolerant or accept speakers or elements that might be hateful,” Beydoun explained, “Whereas public universities have realized that the Affirmative Action rulings that came out with Fisher [Fisher v. University of Texas, 2016]and Grutter [Grutter v. Bollinger, 2003] and so on only impact public universities. They realize the diversity on their campuses have declined because of these rulings, they’re a bit more proactive about disinviting or being more restrictive about the kind of speakers they bring on campus.”

At the end of the debate, the audience was asked to vote once again on whether or not they believe colleges and universities have the right to define and prohibit hate speech.

Once again, 24% of individuals voted yes, while 76% of individuals voted no.

Cheyanne Daniels

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