May-June 2006

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Speak No Evil: The Triumph of Hate Speech Regulation

Speech Codes Are Still Dead

Reviewed by Robert A. Sedler

Jon B. Gould.
Chicago:  University of Chicago Press, 2005.

 Jon B. Gould subtitles his book about “hate speech” and campus speech codes “The Triumph of Hate Speech Regulation.” When I read the subtitle, I wondered if I had missed something during the last decade. I had thought that campus speech codes were dead, and that I had played a significant part in bringing about their demise by successfully litigating constitutional challenges to the University of Michigan code in 1989 and the Central Michigan University code in 1995. The University of Michigan case was the first constitutional challenge to the campus speech codes that were proliferating in the late 1980s. The code violated the First Amendment because the underlying premises of a prohibition on “hate speech” are inconsistent with the fundamental First Amendment principles of content neutrality (the government cannot say that equality is a “good” idea and racism is a “bad” idea), the protection of offensive speech, and the heightened protection of expression in the academic context.

After Judge Avern Cohn of the United States District Court for the Eastern District of Michigan held that the University of Michigan speech code was unconstitutional in Doe v. University of Michigan, a federal court in Wisconsin struck down a supposedly narrower speech code for the University of Wisconsin system in the 1991 UWM Post v. Board of Regents. In 1992, the United States Supreme Court held in R.A.V. v. City of St. Paul that the principle of content neutrality applied to government regulation of speech that itself was not protected by the First Amendment, such as “fighting words,” and so struck down a St. Paul ordinance that had been interpreted to prohibit only “racist fighting words.” In light of that decision, I wrote in 1992 that “under the law of the First Amendment, virtually any campus ban on racist speech imposed by a public university will be found to be unconstitutional.” This position was confirmed by the Sixth Circuit in 1995, when I litigated a successful First Amendment challenge to Central Michigan University’s speech code.

At the outset of the book, Gould acknowledges the successful First Amendment challenges to the campus speech codes. He goes on to discuss comprehensively and accurately the cases themselves and the societal context in which they were litigated. But he maintains that, despite these successful legal challenges, there has been an “afterlife” of hate speech regulation. He says that by 1997 almost half of American colleges and universities had hate speech policies on the books, and that the court decisions holding the codes unconstitutional “were ignored, evaded and resisted.” He demonstrates this rise in hate speech policies both by a quantitative analysis and by case studies of representative institutions, noting that the pattern is the same at private institutions, which are not subject to constitutional constraints, and public institutions, which are.

Gould relates the rise in hate speech regulation to what he calls “mass constitutionalism,” a process by which some legal norms fail to achieve societal legitimacy and so are not followed in practice. As he puts it: “Since the courts rely on the public’s sense of legitimacy to enforce their rulings, a judicial decision that generates broad-scale defiance is not going to be accepted as a true legal norm. The decision may remain on the books, but until a critical mass of the citizenry accepts the decision as just, fair, or at least tolerable, it will not permeate into the prevailing legal culture.” He contends that the strong support for hate speech regulation on the part of university officials and academic commentators has led to the continuation of speech codes on a number of campuses. Gould’s book will be of particular interest to members of the academic community on campuses where a speech code is in place or being proposed. It will help them understand the societal context and political dynamic in which speech codes are proposed and adopted, and the substantive arguments on both sides of the issue.

The part of the book that most interested me was Gould’s discussion of passive and active noncompliance. Gould found that many institutions that had speech codes in place before the court decisions declaring them unconstitutional simply kept them on the books for their symbolic value, but did not try actively to enforce them. Other institutions adopted new or expanded speech policies that, according to Gould, did not “overly contradict First Amendment norms,” but “‘pushed the envelope’ . . . in order to achieve organizational interests.” But even here, there is no indication that the institutions Gould characterizes as engaged in “active noncompliance” are actively enforcing their policies.

If these institutions are not actively enforcing their policies, then we need not worry about campus freedom of speech. The concern of those of us who asserted First Amendment challenges to campus speech codes was that they would stifle discussion of controversial ideas and inhibit the presentation of ideas that might be construed as “racist,” “sexist,” or “homophobic.” The plaintiff in Doe v. University of Michigan, a graduate student in biopsychology, demonstrated that he was “chilled” from discussing certain controversial theories positing biologically based differences between the sexes and among the races. Judge Cohn found that this fear was reasonable. The university had published a booklet giving examples of speech-code violations, all of which, I argued, violated the First Amendment. The example most clearly supporting the plaintiff’s claim of a chilling effect was “A male student makes remarks in class like ‘Women just aren’t as good in this field as men,’ thereby creating a hostile learning atmosphere for female classmates.” We also demonstrated that the University of Michigan code had been vigorously enforced, ensnaring minorities as well as whites within its sweep.

But speech codes will not create a chilling effect on the discussion of unpopular ideas if the codes are merely on the books and it is known that there is no realistic threat of enforcement. Gould does not explore whether these codes do in fact have a chilling effect on the expression of unpopular ideas at campuses where they are in place. If a public university made any effort to enforce its code against a student for engaging in protected speech, that student should be able to assert a successful court challenge against the university. I strongly suspect that if public or private universities made it clear that violations of the code would result in disciplinary action, conservative public interest organizations would actively seek to challenge the codes, as would the American Civil Liberties Union if a student sought its assistance.

If hate speech codes are retained only for their symbolic value and do not actually have a chilling effect on the expression of public ideas, then, contrary to the subtitle of the book, there has been no “triumph of hate speech regulation.” I can rest more easily about the impact of the successful constitutional challenges to hate speech regulation and can maintain that it is the First Amendment, not hate speech regulation, that has triumphed on America’s campuses.

Robert A. Sedler is Distinguished Professor of Law at Wayne State University. He was lead counsel for the plaintiff in Doe v. University of Michigan and Dambrot v. Central Michigan University.