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REGULATING RACIST SPEECH on CAMPUS: a MODEST PROPOSAL?T

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REGULATING RACIST SPEECH on CAMPUS: a MODEST PROPOSAL?T REGULATING RACIST SPEECH ON CAMPUS: A MODEST PROPOSAL?t NADINE STROSSEN* TABLE OF CONTENTS Introduction ................................................... 487 I. Some Limited Forms of Campus Hate Speech May Be Regulable Under Current Constitutional Doctrine .......... 495 A. General ConstitutionalPrinciples Applicable to Regulating Campus Hate Speech ...................... 495 B. ParticularSpeech-Limiting Doctrines Potentially Applicable to Campus Hate Speech .................... 507 1. Fighting Words ................................... 508 2. Intentional Infliction of Emotional Distress ......... 514 t The title is drawn from Jonathan Swift's essay A Modest Proposalfor preventing the Children of poor Peoplefrom being a Burthen to their Parentsor the Country, andfor Making them Beneficial to the Public (Dublin 1729), in JONATHAN SwIFr 492 (A. Ross & D. Woolley eds. 1984). This Article not only responds to the specific points made in Lawrence, If He Hollers Let Him Go: Regulating Racist Speech on Campus, 1990 DUKE L.J. 431 [hereinafter Lawrence], but also addresses the general issues raised by the many recent proposals to regulate racist and other forms of hate speech on campus. Professor Strossen's Article, as well as Professor Lawrence's, are expanded versions of oral presentations that they made at the Biennial Conference of the American Civil Liberties Union (ACLU) in Madison, Wisconsin on June 16, 1989 (available from author). After discussion of these presentations, the Conference adopted the following resolution: The ACLU should undertake educational activities to counter incidents of racist, sexist, anti-semitic and homophobic behavior (including speech) on school campuses and should encourage school administrators to speak out vigorously against such incidents. At the same time, the ACLU should undertake educational activities to counter efforts to limit or punish speech on university campuses. The ACLU has taken action to implement both prongs of this resolution. See infra note 17 and text accompanying notes 344-55. * Professor of Law, New York Law School. A.B., 1972, Harvard-Radcliffe College; J.D., 1975, Harvard Law School. Professor Strossen is a General Counsel to the ACLU, and serves on its Executive Committee and National Board of Directors. She thanks Charles Baron, Jean Bond, Ava Chamberlain, Elsa Cole, Donald Downs, Eunice Edgar, Stephen France, Ira Glasser, David Gold. berger, Thomas Grey, Gerald Gunther, Nat Hentoff, Mary Heston, Martin Margulies, Mar Mat. suda, Michael Meyers, Gretchen Miller, Colleen O'Connor, Taggarty Patrick, john powell, John Roberts, Alan M. Schwartz, Judge Harvey Schwartz, Robert Sedler, Norman Siegel, Peter Siegel, William Van Alstyne, and Jane Whicher for information and insights they shared regarding the subject of this Article. For comments on earlier versions of the Article, she thanks Ralph Brown, Edward Chen, Norman Dorsen, Bernie Dushman, Stanley Engelstein, Eric Goldstein, Franklyn Haiman, Morton Halperin, Alon Harel, Leanne Katz, Martin Margulies, Maimon Schwarzschild, and Samuel Walker. For their research assistance, she expresses special thanks to Jennifer Colyer and Marie Newman, who provided help throughout this project. For additional research assistance, she thanks Marie Costello, Jayni Edelstein, Ramyar Moghadassi, and Julia Swanson. Vol. 1990:484] A MODEST PROPOSAL? 3. Group Defamation ................................ 517 C. Even a Narrow Regulation Could Have a Negative Symbolic Impact on Constitutional Values ............. 520 II. Professor Lawrence's Conception of Regulable Racist Speech Endangers Free Speech Principles .................. 523 A. The Proposed Regulations Would Not Pass ConstitutionalMuster ................................. 524 1. The Regulations Exceed the Bounds of the Fighting Words Doctrine ................................... 524 2. The Regulations Will Chill Protected Speech ....... 526 B. The Proposed Regulations Would Endanger FundamentalFree Speech Principles.............. 531 1. Protection of Speech Advocating Regulable Conduct. .......................................... 531 2. Proscriptionon Content-Based Speech Regulations... 533 a. The indivisibility offree speech................. 533 b. The slippery slope dangers of banning racist speech. ............................. 537 c. The content-neutralityprinciple reflects sensitivity to hate speech's hurtfulpower .................. 539 III. Professor Lawrence's Rationales for Regulating Racist Speech Would Justify Sweeping Prohibitions, Contrary to Free Speech Principles .................................... 541 A. Brown and Other Cases Invalidating Governmental Racist Conduct Do Not Justify Regulating Non- Governmental Racist Speech .......................... 541 1. The Speech/Conduct Distinction ................... 542 2. The Private Action/State Action Distinction ........ 544 B. The Non-Intellectual Content of Some Racist Speech Does Not Justify Its Prohibition ....................... 547 IV. Prohibiting Racist Speech Would Not Effectively Counter, and Could Even Aggravate, the Underlying Problem of R acism ................................................... 549 A. Civil LibertariansShould Continue to Make Combating Racism a Priority .................................... 549 B. PunishingRacist Speech Would Not Effectively Counter R acism .............................................. 554 C. Banning Racist Speech Could Aggravate Racism ....... 555 V. Means Consistent with the First Amendment Can Promote Racial Equality More Effectively Than Can Censorship ...... 562 Conclusion ..................................................... 569 DUKE LAW JOURNAL [Vol. 1990:484 Freedom of speech is indivisible; unless we protect it for all, we will have it for none.1 -Harry Kalven, Jr. If there be minority groups who hail this holding [rejecting a first amendment challenge to a group libel statute] as their victory, they might consider the possible relevancy of this ancient remark: "An- other such victory and I am undone." 2 -Hugo Black, Jr. The civil rights movement would have been vastly different without the shield and spear of the First Amendment. The Bill of Rights... is of particular importance to those who have been the victims of 3 oppression. -Benjamin L. Hooks It is technically impossible to write an anti-speech code that cannot be twisted against speech nobody means to bar. It has been tried and 4 tried and tried. -Eleanor Holmes Norton The basic problem with all these regimes to protect various people is that the protection incapacitates.... To think that I [as a black man] will ... be told that white folks have the moral character to shrug off insults, and I do not .... That is the most insidious, the most insult- ing, the most racist statement of all!5 -Alan Keyes Whom will we trust to censor communications and decide which ones are "too offensive" or "too inflammatory" or too devoid of intellectual content?... As a former president of the University of California once said: "The University is not engaged in making ideas safe for '6 students. It is engaged in making students safe for ideas." -Derek Bok [R]estrictive codes... may be expedient, even grounded in conviction, but the university cannot submit the two cherished ideals of freedom 7 and equality to the legal system and expect both to be returned intact. -Carnegie Foundation for the Advancement of Teaching 1. Kalven, Upon Rereading Mr. Justice Black on the First Amendment, 14 UCLA L. REV. 428, 432 (1967). 2. Beauharnais v. Illinois, 343 U.S. 250, 275 (1952) (Black, J., dissenting). 3. Statement by Benjamin Hooks, quoted in Philip Morris Companies Inc., Press Release (May 7, 1990). 4. Gottlieb, Banning bigoted speech: Stanford weighs rules, San Jose (Cal.) Mercury-News, Jan. 7, 1990, at 3, col. 1. 5. Stanford News, Press Release (Mar. 19, 1990) (quoting Alan Keyes, a former assistant secretary of state and now president of Citizens Against Government Waste, criticizing Stanford hate speech regulation). 6. Bok, Reflections on Free Speech: An Open Letter to the Harvard Community, EDUC. REC., Winter 1985, at 4, 6. 7. CARNEGIE FOUNDATION FOR THE ADVANCEMENT OF TEACHING, A SPECIAL REPORT: CAMPUS LIFE, IN SEARCH OF COMMUNITY 20 (1990) [hereinafter CARNEGIE FOUND. SPECIAL REPORT]. Vol. 1990:484] A MODEST PROPOSAL? In the political climate that surrounds [the race] issue[ ] on campus, principle often yields to expediency and clarity turns into ambiguity, and this is no less true for some of our finest scholars.8 -Joseph Grano When language wounds, the natural and immediate impulse is to take steps to shut up those who utter the wounding words. When, as here, that impulse is likely to be felt by those who are normally the first amendment's staunchest defenders, free expression faces its greatest threat. At such times, it is important for those committed to principles of free expression to remind each other of what they have always known regarding the long term costs of short term victories bought through compromising first amendment principles. 9 -- Civil Liberties Union of Massachusetts As a former student activist, and as a current black militant, [I] be- lieve[ ] that free speech is the minority's strongest weapon ... [Platernalism [and] censorship offer the college student a tranquilizer as the antidote to campus and societal racism. What we need is an alarm clock. What we need is free speech ...and more free speech!10 -Michael Meyers INTRODUCTION Professor Lawrence has made a provocative contribution to the per- ennial debate concerning
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