I. Introduction

If you want to confuse a roomful of law students, teach them First Amendment doctrine. Courts have struggled over the years to develop a consistent jurisprudence, instead creating “a vast Sargasso Sea of drifting and entangled values, theories, rules, exceptions, predilections.”[1] Recent events at places such as the University of Missouri and Yale University have rekindled debates over the proper balance between the regulation of racist and offensive speech and the protection of such speech under the First Amendment. The controversy reflects the age-old tension between liberty, which seeks to shield individual action from external restraints, and equality, which occasionally imposes restraints on individuals to address injustice.

This article seeks to address the degree of First Amendment protection of racist and offensive speech and expression on private university campuses. Unlike their public counterparts, which are state actors, private universities are not subject to heightened constitutional examination of their policies. Despite the lowered standard, private institutions arguably have a moral imperative to scrutinize racist speech on campus due to its pernicious impacts on minority students. At the same time, as vital incubators for civic and democratic values, universities have a historical commitment to providing an open forum for the exchange of conflicting ideas, which requires the protection of unpopular speech and expression. These conflicting objectives are extremely difficult to reconcile, both in theory and practice, and may yield an unsatisfying result even after extensive soul searching. Part II addresses the tension between equality and liberty, Part III explains the difference between public and private universities from a legal perspective, and Part IV addresses arguments for and against the regulation of First Amendment rights.

II. Trade-Offs Between Equality and Liberty

The Constitution is a document that tries to balance liberty and equality. The Supreme Court has interpreted liberty to mean more than just the historical interpretation as freedom from physical restraint. It also includes “specific rights that allow persons, within a lawful reach, to define and express their identity.”[2] This rather broad definition of liberty raises a significant moral and legal dilemma: How far should individuals be able to pursue their liberty before that pursuit infringes upon the liberty of others? The Founding Fathers certainly did not envision unconstrained individual liberty. Justice Harlan remarked that in interpreting the Constitution, the Supreme Court has always tried to strike a balance between “liberty of the individual” and “the demand of organized society.”[3]

First Amendment jurisprudence reflects this tension between protecting individual liberty and the necessity of maintaining order in civil society. On one hand, free speech and expression are necessary to free people “from the bondage of irrational fears.”[4] The right to receive information regardless of their substantive content “is fundamental to our free society.”[5] Yet the Court has consistently recognized exceptions to First Amendment rights, such as wartime restrictions,[6] fighting words,[7] obscenity,[8] and captive audiences.[9] Hate speech, however, is not one of these exceptions.[10] From these case law exceptions, it is apparent that an unrestricted and absolutist interpretation of the First Amendment neither comports with judicial doctrine nor common sense understanding of how society operates. Under some circumstances, limited restrictions on free speech and expression may be necessary to protect the legitimate expectations of individuals.

III. State vs. Private Actors

To further add to the complexity of First Amendment jurisprudence, we must recognize the identity of the actor seeking to regulate speech and expression. Agents of the State face direct limits imposed by the Constitution. A central tenet of the First Amendment is that tolerating both orthodox and unorthodox ideas is necessary to protect individuals against government harassment and to serve as a counter-majoritarian mechanism.[11] The Constitution protects both elegant and vulgar speech because “a society can be truly strong only when it is truly free.”[12] Censorship of speech and expression, even unpopular ones, only “reflects a society’s lack of confidence in itself. It is a hallmark of an authoritarian regime.”[13] People should be able to choose from a marketplace of ideas without interference from the State. A bedrock principle of the First Amendment is that government cannot prohibit the expression of an idea just because society finds the idea to be offensive.[14] Doing so creates the specter of tyranny. Moreover, having government officials censor modes of expression undermines the integrity of the democratic decision-making process.

However, private institutions do not face the same Constitutional constraints. A private association that seeks to regulate the speech and expression of its members do not have the same coercive power that a government actor does. Nor would the restriction limit the functionality of the democratic political process. The Bill of Rights does not apply to actions taken by private institutions, even when these schools receive significant federal funding.[15] Thus, much of the arguments over the proper scope of First Amendment protection on private campuses are moral or philosophical questions, rather than strictly legal ones.

Lastly, we must recognize that universities are unique and complex institutions. Judicial doctrine developed to regulate the conduct of government agencies or business corporations are ill suited to address problems that universities face.[16] The following sections will analyze major arguments behind traditional First Amendment jurisprudence and how they apply on private university campuses.

IV. The Scope of First Amendment Rights on Private Campus

    A. The marketplace of ideas

In Abrams v. U.S., Justice Holmes’ concept for a marketplace of ideas became a cardinal rule of modern First Amendment jurisprudence. According to Justice Holmes, truth cannot be arrived at through fiat. Instead, people must be allowed to experiment with ideas, and “the best test of truth is the power of the thought to get itself accepted in the competition of the market.”[17] A corollary of the Holmes’ marketplace analogy is that government authorities are ill suited to tell people what is true and what is false, or what is wrong and what is right.[18] If an individual and the government are equally inept at finding the “right answer,” liberty and personal autonomy dictate that the individual should make the decision. Holmes’ distrust of government authority finds a spiritual comrade in Hayek’s libertarian philosophy. Any government is unlikely to come up with a single standard that will satisfy the needs of every individual.[19]

The marketplace of ideas is a simple and seductive conception. It maximizes individual liberty by insulating people from coercive attempt to impose certain beliefs on them from any external source of authority. The market must enable a debate that is “uninhibited, robust, and wide-open.”[20] Through this unrestricted debate, the truth will emerge. Yet the concept of market place of ideas contains significant flaws and fails to fully capture the complexity of social interactions on private campuses.

Unlike members of a commercial market, students at universities are part of a captive audience, which may warrant greater protection against unwanted and offensive speech. In a fully functional market, individuals may refrain from participating in the market or withdraw completely if they wish. If I do not want to buy a car, there is no imperative for me to look at advertisements, listen to sale pitches, or bargain with sellers.

However, university students do not have the same luxury when it comes to racist speech. Students have fewer avenues of retreat. Being at school and interacting with fellow students, including those who have made the racist remarks, is a necessary part of university life.[21] One assumption underpinning the marketplace of ideas is that the speech and expression in question take place in public. Thus, when confronted with disagreeable or offensive ideas, individuals could either confront the speaker or retreat into the privacy of their homes. Within the confine of one’s home, individual autonomy requires virtually unlimited control over the content of the messages received, especially in a modern society where people are “inescapably captive audiences for many purposes.”[22]

The unique nature of universities, however, blurs the distinction between public forum and private space. From a student’s perspective, a campus serves a dual purpose: a forum for the exchange of conflicting ideas and a home where one could be free from speech that one does not want to hear. Students at some institutions may develop the expectation that the university is more than just a place for intellectual development.[23] Failure to recognize the conflicting functions of a university will skew any analysis of the hate speech dilemma. Moreover, some scholars have argued that the emotional vulnerabilities of college-aged students, combined with the stress naturally associated with college life, require a careful balancing of the different priorities implicated in the debate over the scope of First Amendment rights. Yet despite the importance of this balancing process, the ones affected the most by racist speech on campus—the students—also lack control over it. This argument will be further explored in Part C below.

An advocate of the marketplace may also interpret recent events as examples of students exercising their market power. When confronted with ideas that they find outrageous and unacceptable, whether coming from a professor or an invited speaker, the students acted upon their collective influence to have their voices be heard. After all, “marketplace theory does not demand that everyone who wants to speak must be heard, but only that everything worth saying must be available to be heard.”[24] Those who admonish student protesters ignored the students’ exercise of their own First Amendment rights.[25]

Yet the most troubling philosophical aspect of the Holmesian marketplace concept is that it is entirely process-oriented. It “offers no view on the ultimate question of what constitutes objective truth other than to say that such truth…is more likely to emerge from this process than any other.”[26] Such an ideology places little faith in “individual human agency” and rests on the notion that civil liberties are necessary because even the most disagreeable views may represent legitimate social interests.[27] Ironically, the libertarian concept of the marketplace of ideas is built upon a jurisprudence that sought to advance collective social interests even at the expense to individuals. An absolutist interpretation of the protections offered by the First Amendment borders on cultural nihilism, embracing the acceptability of any given position regardless of social norms. For aspiring lawyers, the First Amendment ought to be something more—a doctrine that encourage “speech that is truthful, gracious, well-considered, and generous to opponents.”[28]

    B. Academic freedom

A critical mission of any university is to create, preserve, and disseminate knowledge. Thus, universities must be free to provide a forum for the discussion of ideas, especially controversial and radical ones that society may not approve of. First Amendment protection is critical to maintaining the academic freedom necessary for any university. However, legal jurisprudence on academic freedom is restricted in its scope and only affords limited protection to racist and other offensive speech by students.

One of the earliest Supreme Court cases on academic freedom puts forth a narrow definition of academic freedom. Justice Frankfurter argued that in order to maintain universities’ ability to speculate and experiment with ideas, thoughts and ideas within the academic realm “are presumptively immune from inquisition by political authority.”[29] Thus, the First Amendment protects academic freedom by freeing teaching and scholarship from political control. These efforts are needed to “contribute unique cultural and intellectual values to a free society.”[30] Government interference with pedagogy and research intrudes upon the ability of individuals and private institutions to exercise their legitimate autonomy. The recent incident at Yale, where a professor sent out an email to students in her official capacity as the administrator of a residential college, would seem to fall outside the scope of academic freedom. Though this characterization only holds if one were to assume that teaching and learning only takes place within a classroom.

Justice Frankfurter’s opinion also says nothing about extending academic freedom to the words and expressions of students. The rights of American university students have been traditionally suppressed by the doctrine of in loco parentis, the idea that universities act in the place of students’ parents. This principle was not rejected by the judiciary until 1961,[31] four years after Justice Frankfurter’s opinion, which most likely does not extend to academic freedom of students. Thus, students’ right to free speech is not “properly part of constitutional academic freedom, because none of them has anything to do with scholarship or systematic learning.”[32] Based on the history of judicial interpretation of academic freedom, racist and offensive speech by students does not fall under the umbrella of First Amendment-based academic freedom.

Moreover, a university’s education mission includes more than just critical learning. Students also “learn to express themselves in acceptable, civil terms” and “understand the need for those external restraints to which we must all submit if group existence is to be tolerable.”[33] Racist and other offensive speech cross a threshold that society considers to be unacceptable. Disciplinary actions or other forms of punishment thus enforce the social unacceptability of racist speech. Not regulating such speech might send the message to offenders that racism is at least considered by some people to be acceptable.

While the judicial doctrine on academic freedom appears straightforward on paper, it is clear that Justice Frankfurter’s conception of academic freedom may be too restrictive. A hallmark of higher learning institutions is that students learn from each other.[34] In fact, one of the principal arguments in favor of affirmative action programs is that diversity promotes learning by forcing students learn from their differences and challenge “even their most deeply held assumptions about themselves and their world.”[35] The free exchange of ideas among students is an integral part of the university learning experience. Limiting academic freedom to just the scholarship of the faculty could actually damage the ability of a university to fulfill its educational mission. However, expanding the scope of academic freedom may be difficult since within the student body, trying to distinguish protected academic speech and unprotected non-academic speech would result in arbitrary line drawing. The inherent dilemma with defining the boundaries of academic freedom shows why the judiciary is not the best arbiter of the university policies.

    C. Democratic self-governance

An extension of the marketplace of ideas is that free speech is necessary for a constitutional democracy to succeed. Since democracy is essentially a political process through which members of a community reach a consensus, individuals must possess all information available to become informed participants in a democracy. Within any community exist majority and minority groups who disagree with each other over important subject matters. The consensus of the community must be reached through “a running discussion between majority and minority” and the “free consideration of arguments.”[36] Free speech is necessary for individuals to add their alternative proposals to the political discussion and to ensure rational discourse in a democracy.[37] Justice Brandeis said that even “imminent danger cannot justify” the prohibition of free speech “unless the evil apprehended is relatively serious.”[38] The protection of individual liberty through First Amendment rights is directly linked with preserving a constitutional democracy.

However, the democratic self-governance analogy does not transplant completely to a university setting. Students are not the functional equivalent of citizens. They do not have the same degree of political control over their community through the ballot, either by electing representatives in a legislature and an executive or by enacting specific regulations through a referendum. When confronted with racist speech and expression, students have no effective means to protect themselves through the political process. This is more so for students at private universities, since their counterparts at public schools could try to change university policies by influencing the state legislature. Students may have some limited power over university policy through organized protests and making suggestions,[39] but these actions are not binding on neither the administration nor the board of trustees.

Yet one could make a strong argument that democratic values are fostered through collegiate education. Public schools are thought to be the “cradle of our democracy,”[40] and should help turn students into autonomous citizens ready for the “rough and tumble world of public discourse.”[41] Schools are not the instruments of the state, transmitting only officially sanctioned ideas.[42] If dissenting and disruptive ideas were to flourish in society, they must also flourish at the university level, where people spend some of the most formative years of their lives. The clash of opposing ideas and a lack of unanimity are normal conditions of human life.[43] University life should therefore be treated as a transition period to full membership in civil society and First Amendment rights are crucial for students to develop the skills needed to become participants in the democratic polity.

Given the sordid history of racism in this country, however, it is difficult to justify how racist speech and expression contributes to democratic self-governance. In every culture, certain words and expressions “acquire meaning well beyond what outsiders can comprehend.”[44] Slavery and segregation—both accepted as legitimate legal and social institutions—have made speech more than just manifestations of personal ignorance. The goal of hate speech is to silence and marginalize minority groups.[45] Unlike other forms of offensive speech, racial insults provide no opportunity for the listener to reflect and respond since the injury is instantaneous.[46] The offender’s intention is “not to discover truth or initiate dialogue but to injure the victim.”[47]

Words have no intrinsic meanings and take on life only within a community of common interpreters. Racist speech is more than just threat and intimidation. The history of racial repression and segregation has imbued such words with the intent to exclude minorities from become full participants of civil society and the political system. By denigrating the very existence of minorities, racists speech robs minorities of their dignity and self-respect, both of which are primary goods that every rational person would desire.[48]

Of course, not all anti-democratic speech should be regulated. Doing so would lead to one exception after another to the First Amendment, “until those in power are free to stifle opposition in the name of protecting democratic ideals.”[49] If society were to ban the Ku Klux Klan for being “repugnant to democratic values,” then other groups, such as the communist party, ought to be banned as well.[50] This is indeed a troubling line of reasoning. One could try to distinguish racist speech on the grounds that it is intrinsically designed to foster inequality and suppress individual liberties. Yet the same could be said of all anti-democratic ideals. Trying to rationally justify the suppression of racist speech requires trying to distinguish acceptable and unacceptable forms of expression on the ground of substantive content—something that the First Amendment is designed to prevent.

V. Remedies to Racist Speech?

Racism is a pestilence that plagues not just university campuses, but also society as a whole. The failure of the legal system to eradicate the vestiges of deeply ingrained racism demonstrates the difficulty that society has in coming up with a solution. University students may be particularly susceptible to racial insults and have limited redress. A speech code may seem like the most straightforward solution to addressing racist incidents on private campuses. However, this approach contains significant flaws.

During the 1990s, several universities sought to control outbursts of racist incidents through speech codes. Many of them, instituted by public schools, were struck down for being unconstitutionally vague. For private universities, such provisions are more likely to withstand constitutional challenges. Justification for such codes rests on the assumption that racist speech has no legitimate educational or expressive purposes, and thus should be banned to protect the rights and dignity of minority students. Within the context of the marketplace of ideas, speech codes are analogous to safety codes and other quality control measures. We regularly reject products of poor qualities—capable of causing harm to users—from reaching the market. Thus, the marketplace of ideas should have similar forms of quality control. Furthermore, incidents involving racist and offensive remarks are not consensual transactions, since they are neither voluntary (the listener would like the speaker to stop) nor mutual (the listener has no chance to respond).[51] Racist speech is akin to market distortions that ought to be eliminated.

The problem with the above analogy is that no objective standards exist for what constitutes “good” speech. Speech codes seek to regulate speech based on its substantive content, a goal that is anathema to the First Amendment. Moreover, the problems associated with regulating substantive content are brought up at the end of Part IV(C). Even arguments inimical to our democratic society should be respected because otherwise there would be no meaningful distinction between banning one form of expression over another (the KKK vs. communism hypo). Drawing lines between acceptable and unacceptable speech is an arbitrary and time-consuming exercise that is unlikely to yield a satisfying conclusion for all involved.

While one could argue that racist remarks are “fighting words” and thus not protected by the First Amendment, a specific prohibition of such remarks would likely be struck down since it distinguishes racist speech from other fighting words, and thus would serve as unconstitutional content-based prohibition by the state.[52] Even a comprehensive ban suffers from the problem of trying to objectively define what exactly constitute fighting words.

Lastly, speech code may ultimately be a futile exercise given the infinite ways in which racism could express itself. Regulations that try to “imagine and specify every possible indication of racism” will fall short, given the intrinsic elusiveness of their intended target.[53] The opposite approach, drafting a vaguely worded statute, is equally unsatisfactory. Such a code would not only deter desirable speech and expression on campus,[54] but also create a negative symbolic effect by limiting First Amendment protections.[55] Ultimately, even in the private campus setting, entrusting a central administrator with censorship functions poses a serious threat to the ability of students to legitimately exercise their First Amendment rights.

VI. Conclusion

Universities are an important institution in any democratic society. They foster the development of students into autonomous individuals and encourage the exchange of conflicting ideas. Racist speech and expression pose a threat to the missions of these institutions by disparaging minority students and limiting their potential for self-realization. While state schools’ effort to regulate racist speech is limited by the First Amendment, private schools have greater legal freedom to do so. Yet many of the moral and philosophical arguments underpinning the protection of racist and offensive speech apply in the private setting as well. The sections above illuminated the difficulties involved with trying to regulate racist speech. Combatting racism requires an ongoing conversation within the universities, which requires empowering students to address the issues that affect them the most. This does not necessarily mean enfranchising students to vote on university policies. However, administrations must understand the moral and practical imperative of recognizing student needs when enacting policies, whether it be the regulation of hate speech or other pressing concerns. How to accomplish this rather difficult goal should be left to universities and students to decide, rather than outside actors.

 

[1] Robert C. Post, Racist Speech, Democracy, and the First Amendment, 32 Wm. & Mary L. Rev. 267, 278.

[2] Obergefell v. Hodges, 135 S.Ct. 2584, 2593.

[3] Poe v. Ullman, 367 U.S. 497, 542 (dissenting).

[4] Whitney v. California, 274 U.S. 357, 376 (Brandeis, J. concurring) (overruled by Brandenburg v. Ohio, 395 U.S. 444).

[5] Stanley v. Georgia, 394 U.S. 557, 564.

[6] Schenck v. United States, 249 U.S. 47, 52.

[7] Chaplinsky v. United States, 315 U.S. 568.

[8] Miller v. California, 413 U.S. 15.

[9] Rowan v. Post Office Dept., 397 U.S. 728.

[10] See e.g. Virginia v. Black, 538 U.S. 343; R.A.V. v. City of St. Paul, 505 U.S. 377; Brandenburg v. Ohio, 395 U.S. 444.

[11] See United States v. Rumely, 345 U.S. 41, 58-59.

[12] Ginzburg v. United States, 383 U.S. 463, 498 (Stewart, J., dissenting).

[13] Id.

[14] Texas v. Johnson, 491 U.S. 397, 414.

[15] Robert M. O’Neil, Free Speech in the College Community 225 (1997).

[16] J. Peter Byrne, Academic Freedom: “A Special Concern of the First Amendment,” 99 Yale L.J. 251, 254

[17] Abrams v. U.S., 250 U.S. 616, 630.

[18] David F. McGowan & Ragesh K. Tangri, A Libertarian Critique of University Restrictions of Offensive Speech, 79 Cal. L. Rev. 825, 838.

[19] F. A. Hayek, The Road to Serfdom 101 (Bruce Caldwell ed., 2007).

[20] New York Times Co. v. Sullivan, 376 U.S. 254, 270.

[21] Mari Matsuda, Public Response to Racist Speech: Considering the Victim’s Story, 87 Mich. L. Rev. 2320, 2372.

[22] Supra note 9 at 736.

[23] See Judith Schiff, How the Colleges Were Born, Yale Alumni Magazine, May/June 2008 (residential college system designed to foster the development of students socially and aesthetically, and the master is supposed to develop personal relationships with each student).

[24] Supra note 19 at 876.

[25] Of course, students’ exercise of their First Amendment rights is subject to similar restraints that they have asked for as part of their protests.

[26] Supra note 19 at 836.

[27] Louis Menand, The Metaphysical Club 66 (2001). This interpretation of Holmes’ jurisprudence reconciles his advocacy of civil liberties with his disinterest in the suffering of minority groups. See e.g. Giles v. Harris, 189 U.S. 475, 483 (state disqualification of African American voters is constitutional); Buck v. Bell, 274 U.S. 200, 207 (forced sterilization of the intellectually disabled did not violate the Due Process Clause of the Fourteenth Amendment).

[28] Supra note 17 at 260.

[29] Sweezy v. New Hampshire, 354 U.S. 234, 266 (concurring).

[30] Supra note 17 at 258.

[31] See Dixon v. Ala. State Bd. of Educ., 294 F.2d. 150.

[32] Supra note 17 at 262.

[33] Papish v. Bd. of Curators of Univ. of Mo., 410 U.S. 667, 672 (Burger, C.J., dissenting).

[34] See Grutter v. Bollinger, 539 U.S. 306, 314.

[35] William G. Bowen, Admissions and the Relevance of Race, Princeton Alumni Weekly, Sept. 26, 1977, at 7, 9.

[36] Supra note 1 at 281.

[37] John Rawls, A Theory of Justice 225 (1971)

[38] Supra note 4 at 377.

[39] David Shimer & Victor Wang, Students Submit New Demands to Salovey, Yale Daily News Nov. 13, 2015.

[40] Adler v. Bd. of Educ. of the City of N.Y., 342 U.S. 485, 508 (Douglas, J., dissenting).

[41] Supra note 1 at 321.

[42] Tinker v. Des Moines School Dist., 393 U.S. 503, 511.

[43] Supra note 38 at 222.

[44] Virginia v. Black, 538 U.S. 343, 388 (Thomas, J., dissenting).

[45] Richard Delgado, About Your Masthead: A Preliminary Inquiry into the Compatibility of Civil Rights and Civil Liberties, 39 Harv. C.R.-C.L. L. Rev. 1, 13.

[46] Charles R. Lawrence III, If He Hollers Let Him Go: Regulating Racist Speech on Campus, 1990 Duke L.J. 431, 452.

[47] Id.

[48] Supra note 38 at 62.

[49] Supra note 22 at 2352.

[50] Id.

[51] Supra note 19 at 854-55.

[52] See R.A.V. v. City of St. Paul, 505 U.S. 377, 391-92.

[53] Supra note 1 at 269-70.

[54] For example, if we were to enact a code that bans “all forms of racial epithets,” would a singer who repeatedly use the word “nigger” in a song be punished or not? Over-inclusive language places burden on writers of the code to decide what is acceptable and what is not, which is an invitation for arbitrary decision making.

[55] Supra note 16 at 520.