Running Head: CAMPUS SPEECH CODES Hate Speech versus Free Speech on College Campuses: Exploring the Viability of a Constitutional and Sustainable Campus Speech Code Michelle Epstein Garland Doctoral Student/Graduate Teaching Associate College of Communication and Information University of Tennessee [email protected] Campus Speech Codes 2 Hate Speech versus Free Speech on College Campuses: Exploring the Viability of a Constitutional and Sustainable Campus Speech Code Abstract This article explored the viability of a Constitutional and sustainable campus speech code. Specifically, this article used the website and rating system of the organization Freedom for Individual Rights in Education (FIRE) as the source for the pilot analysis. Southeastern Conference and Pacific 10 Conference universities were chosen as the sample, and both the overall university and individual codes were examined for violations of free speech. For the purpose of this article, codes that were found to have no violations were presented. This article found that based on the chosen sample, no Constitutional and sustainable campus speech code is currently viable. However, analysis of a broader sample is recommended. Keywords: campus speech codes, hate speech, free speech Campus Speech Codes 3 Hate Speech versus Free Speech on College Campuses: Exploring the Viability of a Constitutional and Sustainable Campus Speech Code I. INTRODUCTION Throughout history racial and ethnic slurs have ignited a fire in man so deep that lives have been lost. Hate speech is an old phenomenon, but since the 1980’s, hate speech regulation on university campuses has caused much debate for students, faculty, staff, administrators, and lawmakers, and judges. Incidents from universities around the country have led administrators to take action. One such incident occurred at the University of Southern California in 2005. “At an Alpha Epsilon Pi party with the theme Once Upon a Time in Mexico, the fraternity set up a makeshift replica of the U.S.-Mexico border, with barbed wire looped around the top of a rented six foot fence. Next to the fence was a flashing red light and a cardboard sign that read ‘Welcome to Mexico.” 1 According to a 2011 article in the Knoxville News Sentinel, in 2010, at the University of Tennessee, when more than a hundred prospective students walked across the street near the Black Cultural Center last February, Ja'Nay Bryant was giving a tour to encourage the high school students to become Volunteers. The university recruiting organization bused the students to Knoxville from around the state in order to offer them a campus visit that they might not have had otherwise. Luckily, Bryant said, most of the visitors didn't notice the bananas hurled in their direction. But she and other students leading the tour did. 2 While advocates for hate speech regulations assert that equality matters most, critics— including the courts—conclude that freedom of speech trumps equality. Hate speech regulations, or codes, repeatedly have been written, tried, and then rejected or diluted by court challenges. 1 Stop the Hate: Fraternity and Sorority Action Guide, 2006. Retrieved from April 18, 2011 from www.stophate.org. 2 Meghan Boehnke, (January 17, 2011), UT takes a look at diversity: Panel pushes awareness initiatives after episode of racial intolerance . Retrieved April 18, 2011 from www.knoxnews.com. Campus Speech Codes 4 While civility is a key value, risks of impairing constitutionally protected expressive freedoms seem to weigh more heavily in judicial scales. So what is a speech regulation, or speech code? According to the Freedom for Individual Rights in Education organization, a speech code is “any university regulation or policy that prohibits expression that would be protected by the First Amendment in society at large.” This article seeks to provide a historical overview of struggles to create and enforce—and to justify—hate speech codes at Southeastern Conference and Pacific Ten universities. First, efforts to define hate speech will be discussed. Then, key court decisions striking down or severely limiting campus speech codes are examined as a framework for a content analysis of SEC and PAC-10 speech codes. As universities attempt to regulate hate speech through speech codes, the issue of defining hate speech arises for without a clear definition of hate speech, what are speech codes actually regulating. According to Paul McMasters, First Amendment ombudsman, “hate speech is that which offends, threatens, or insults groups based on race, color, religion, national origin, gender, sexual orientation, disability, or a number of other traits.” 3 According to Scott Rubin, head of global communications and public affairs for Google and YouTube, hate speech is that which “attacks or demeans a group based on race or ethnic origin, religion, disability, gender, age, veteran status and sexual orientation or gender identity." 4 While the definitions are similar in identifying the targets, that is as far as the similarity goes. Some feel that hate speech is content based. Others believe it can be identified by intent. Still others believe hate speech is centered upon the core meaning behind the message. This variety, if nothing else, should be a hint at just how complicated the debate on hate speech codes really is. 3 Retrieved April 3, 2011 from www.firstamendmentcenter.org. 4 Theresa Howard, (October 1, 2009), Online hate speech: It’s difficult to police; It also can be difficult to agree on a definition, USA Today , Life, 4D. Campus Speech Codes 5 According to Shiell, in his 2009 book Campus Hate Speech on Trial , “the debate between the two sides…hit the public eye in a big way from 1989-1992 as literally hundreds of articles appeared in national and local newspapers and magazines, academic newsletters and journals, publications of professional organizations, law reviews, alumni newsletters, and other places.” 5 This exploratory study examines both sides of the debate looking at case studies and court rulings that have impacted the history of this debate. To this point, no campus speech code has been upheld in court. After a brief historical overview, a qualitative analysis of speech regulations of SEC and Pac 10 schools will follow. The goal of this exploratory study is to create a “how to” for campus administrators to develop a constitutional and sustainable speech code. II. HISTORICAL OVERVIEW Speech Regulations In Doe v. University of Michigan 6, “a federal court struck down the university’s code when an unidentified graduate student in psychology, represented by the ACLU, argued that the code violated his First Amendment right to discuss in the classroom controversial theories positing biologically based differences between sexes and races.”7 The courts ruled the code unconstitutional for a variety of reasons. The ruling identified the distinction between speech and conduct, the latter of which is open to regulation based on fighting words 8 and incitement.9 After identifying the underlying issue, the court addressed the ruling of the code 5 Timothy C. Shiell, Campus Hate Speech on Trial , Second Edition, Revised (University Press of Kansas, 2009), 5. 6 See Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989). 7 Timothy C. Shiell, Campus Hate Speech on Trial , Second Edition, Revised (University Press of Kansas, 2009), 8. 8 See Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). 9 See Gooding v. Wilson, 405 U.S. 518, 523 (1972). Campus Speech Codes 6 being vague and overbroad. 10 This case was the first to address the constitutionality of hate speech codes as this was the first code challenged by a student. The Wisconsin case soon followed. The University of Wisconsin code, written by several law professors, attempted to write a constitutional code, taking what was learned from the Doe v. University of Michigan case. In UWM Post v. Board of Regents of University of Wisconsin, the court ruled in a 5-2 decision that the code, though less broad than the previously mentioned case, was overbroad and vague. The issue of fighting words was revisited, but this ruling also rejected the hostile environment argument. 11 Similar rulings were made in R.A.V. v. City of St. Paul 12 , which did not address campus speech codes but speech codes in general, Dambrot v. Central Michigan University 13 , which addressed the constitutionality of regulating speech based on content, and Iota Xi Chapter v. George Mason University 14 , in which the university’s actions were deemed unconstitutional. In this case, the University did not have an explicit speech code and instead assigned consequences on a case-by-case basis. Corry v. Leland Stanford Junior University 15 was the first case to address the constitutionality of speech codes as private universities. It is important to note that private universities are not required to adhere to constitutional demands as public institutions. This code was the narrowest in scope, but with this ruling, the court left universities with the 10 Lee Ann Rabe, “Sticks and Stones: The First Amendment and campus speech codes,” John Marshall Law Review, 37(1), 2003, 205-227. 11 S. Douglas Murray, “The demise of campus speech codes,” Western State University Law Review, 24(2), 1997, 247-281. 12 See R.A.V. v. City of St. Paul , 505 U.S. 377 (1992). 13 See Dambrot v. Central Michigan University , 839 F. Supp. 477 (E.D. Mich. 1993). 14 See Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University , 773 F. Supp. 792 (E.D. Va. 1991). 15 See Robert Corry et al. v. Leland Stanford Junior University , County of Santa Clara Superior Court, Case no. 740309, February 27, 1995. Campus Speech Codes 7 impression that no speech code would hold up in court. 16 In Silva v. University of New Hampshire 17 , the constitutionality of the university’s sexual harassment code specifically was questioned.