Good Speech | Bad Speech

One person’s freedom of expression may be another’s verbal assault-a dilemma with First Amendment implications. Constitutional law experts Charles Lawrence and Gerald Gunther explore this in the following essays. Note that while the two professors take differing stands, both speak from experience as victims of the kind of “bad speech” at issue. Their arguments were initially framed in the context of an ongoing debate at Stanford University over whether and how the Fundamental Standard for student conduct should be amended. Several other Law School faculty members-including Dean Brest and Professors William Cohen, Thomas Grey, and Robert Rabin-have also contributed to the campus deliberations.

Good Speech | Bad Speech 1

I have the better part of my life as a dissenter. As a high-school student, I was threatened with suspension for my refusal to participate in a civil-defense drill, and I have been a conspicuous consumer of my First Amendment liberties ever since. There are very strong reasons for protecting even speech that is racist. Perhaps the most important is that such protection reinforces our society’s commitment to tolerance as a value. By protecting bad speech from government regulation, we will be forced to combat it as a community.

Good Speech | Bad Speech 4
Professor Lawrence,
who has been at Stanford
since 1983, teaches constitutionallaw,
and law, and race relations.
Known for his
penetrating analyses of
unconscious racism, he is
the author (with Joel
Dreyfuss) of The Bakke
Case: The Politics of
Inequality (1979) and
numerous scholarly

I have, however, a deeply felt apprehension about the resurgence of racial violence and the corresponding increase in the incidence of verbal and symbolic assault and harassment to which blacks and other traditionally excluded groups are subjected. I am troubled by the way the debate has been framed in response to the recent surge of racist incidents on college and university campuses and in response to some universities’ attempts to regulate harassing speech. The problem has been framed as one in which the liberty of free speech is in conflict with the elimination of racism. I believe this has placed the bigot on the moral high ground and fanned the rising flames of racism.

Above all, I am troubled that we have not listened to the real victims – that we have shown so little understanding of their injury, and that we have abandoned those whose race, gender, or sexual orientation continues to make them second-class citizens. It seems to me a very sad irony that the first instinct of civil libertarians has been to challenge even the smallest, most narrowly framed efforts by universities to provide black and other minority students with the protection the Constitution, in my opinion, guarantees them.

The landmark case of Brown v. Board of Education is not a case that we normally think of as a case about speech. But Brown can be broadly read as articulating the principle of equal citizenship. Brown held that segregated schools were inherently unequal because of the message that segregation conveyed: that black children were an untouchable caste, unfit to go to school with white children. If we understand the necessity of eliminating the system of signs and symbols that signal the inferiority of blacks, then we should hesitate before proclaiming that all racist speech that stops short of physical violence must be defended.

University officials who have formulated policies to respond to incidents of racial harassment have been characterized in the press as “thought police,” even though such policies generally do nothing more than impose sanctions against intentional face-to-face insults. Racist speech that takes the form of face to- face insults, catcalls, or other assaultive speech aimed at an individual or small group of persons falls directly within the “fighting words” exception to First Amendment protection. The Supreme Court has held in Chaplinsky v. New Hampshire that words which “by their very utterance inflict injury or tend to incite an immediate breach of the peace” are not protected by the First Amendment.

If the purpose of the First Amendment is to foster the greatest amount of speech, racial insults deserve that purpose. Assaultive racist speech functions as a preemptive strike. The invective is experienced as a blow, not as a proffered idea. And once the blow is struck, a dialogue is unlikely to follow. Racial insults are particularly undeserving of First Amendment protection, because the perpetrator’s intention is not to discover truth or initiate dialogue but to injure the victim. In most situations, members of minority groups realize that they are likely to lose if they fight back, and are forced to remain silent and submissive.

Courts have held that offensive speech may not be regulated in public forums (such as streets, where the listener may avoid the speech by moving on). But the regulation of otherwise protected speech has been permitted when the speech invades the privacy of the unwilling listener’s home, or when the unwilling listener cannot avoid the speech. Racist posters, fliers, and graffiti in dormitories, bathrooms, and other common living spaces would seem to fall within the reasoning of these cases. Minority students should not be required to remain in their rooms in order to avoid racial insult. Minimally, they should find a safe haven in their dorms and in all other common rooms that are a part of their daily routine.

I would also argue that the university’s responsibility for ensuring that these students receive an equal educational opportunity provides a compelling justification for regulations that ensure them safe passage in all common areas. A minority student should not have to risk becoming the target of racially assaulting speech every time he or she chooses to walk across campus. Regulating vilifying speech that cannot be anticipated or avoided need not preclude announced speeches and rallies – situations that would give minority-group members and their allies the opportunity to organize counter-demonstrations or avoid the speech altogether.

The most commonly advanced argument against the regulation of racist speech proceeds something like this: We recognize that minority groups suffer pain and injury as the result of racist speech, but we must allow this hate mongering for the benefit of society as a whole. Freedom of speech is the lifeblood of our democratic system. It is especially important for minorities, because often it is their only vehicle for rallying support for the redress of their grievances. It will be impossible to formulate a prohibition so precise that it will prevent the racist speech you want to suppress, without catching in the same net all kinds of speech that it would be unconscionable for a democratic society to suppress.

Such arguments seek to strike a balance between our concern, on the one hand, for the continued free flow of ideas and the democratic process dependent on that flow, and, on the other, our desire to further the cause of equality. There can, however, be no meaningful discussion of how we should reconcile our commitment to equality with our commitment to free speech, until it is acknowledged that racist speech inflicts real harm, and that this harm is far from trivial.

To engage in a debate about the First Amendment and racist speech without a full understanding of the nature and extent of that harm is to risk making the First Amendment an instrument of domination rather than a vehicle of liberation. We have not all known the experience of victimization by racist, misogynist, and homophobic speech, nor do we equally share the burden of the harm it inflicts. We are often quick to say that we have heard the cry of the victims when we have not.

The Brown case is again instructive, because it speaks directly to the psychic injury inflicted by racist speech by noting that the symbolic message of segregation affected “the hearts and minds” of Negro children “in a way unlikely ever to be undone.” Racial epithets and harassment often cause deep emotional scarring and feelings of anxiety and fear that pervade every aspect of a victim’s life.

Brown also recognized that black children did not have an equal opportunity to learn and participate in the school community when they bore the additional burden of being subjected to the humiliation and psychic assault contained in the message of segregation. University students bear an analogous burden when they are forced to live and work in an environment where at any moment they may be subjected to denigrating verbal harassment and assault. The same injury was addressed by the Supreme Court when it held that, under Title VII of the Civil Rights Act of 1964, sexual harassment which creates a hostile or abusive work environment violates the ban on sex discrimination in employment.

Carefully drafted university regulations could bar the use of words as assault weapons while at the same time leaving unregulated even the most heinous of ideas provided those ideas are presented at times and places and in manners that provide an opportunity for reasoned rebuttal or escape from immediate insult. The history of the development of the right to free speech has been one of carefully evaluating the importance of free expression and its effects on other important societal interests. We have drawn the line between protected and unprotected speech before without dire results. (Courts have, for example, exempted from the protection of the First Amendment obscene speech and speech that disseminates official secrets, defames or libels another person, or is used to form a conspiracy or monopoly.)

Blacks and other people of color are skeptical about the argument that even the most injurious speech must remain unregulated because, in an unregulated marketplace of ideas, the best ones will rise to the top and gain acceptance. Experience tells quite the opposite. People of color have seen too many demagogues elected by appealing to America’s racism, and too many sympathetic politicians shy away from issues that might brand them as being too closely allied with disparaged groups.

Whenever we decide that racist speech must be tolerated because of the importance of maintaining societal tolerance for all unpopular speech, we are asking blacks and other subordinated groups to bear the burden for the good of all. We must be careful that the ease with which we strike the balance against the regulation of racist speech is in no way influenced by the fact that the cost will be borne by others. We must be certain that those who will pay that price are fairly represented in our deliberations and that they are heard.

At the core of the argument that we should resist all government regulation of speech is the ideal that the best cure for bad speech is good-that ideas that affirm equality and the worth of all individuals will ultimately prevail. This is an empty ideal unless those of us who would fight racism are vigilant and unequivocal in that fight. We must look for ways to offer assistance and support to students whose speech and political participation are chilled in a climate of racial harassment.

Civil rights lawyers might consider suing on behalf of blacks whose right to an equal education is denied by a university’s failure to ensure a nondiscriminatory educational climate or conditions of employment. We must embark upon the development of a First Amendment jurisprudence grounded in the reality of our history and our contemporary experience. We must think hard about how best to launch legal attacks against the most indefensible forms of hate speech. Good lawyers can create exceptions and narrow interpretations that limit the harm of hate speech without opening the floodgates of censorship.

Everyone concerned with these issues must find ways to engage actively in actions that resist and counter the racist ideas that we would have the First Amendment protect. If we fail in this, the victims of hate speech must rightly assume that we are on the bigots’ side.

Good Speech | Bad Speech 2

I am deeply troubled by current efforts – however well-intentioned -to place new limits on freedom of expression at this and other campuses. Such limits are not only incompatible with the mission and meaning of a university; they also send exactly the wrong message from academia to society as a whole. University campuses should exhibit greater, not less, freedom of expression than prevails in society at large.

Proponents of new limits argue that historic First Amendment rights must be balanced against “Stanford’s commitment to the diversity of ideas and persons.” Clearly, there is ample room and need for vigorous University action to combat racial and other discrimination. But curbing freedom of speech is the wrong way to do so. The proper answer to bad speech is usually more and better speech-not new laws, litigation, and repression.

Good Speech | Bad Speech 3
Professor Gunther, one ofthe nation’s foremost constitutional law scholars, has taught courses on freedom of speech at Columbia, Harvard, and for the past 28 years, at Stanford. Some 600 pages ofhis landmark casebook, Constitutional Law (11th ed., 1985) are devoted to First Amendment issues.

Lest it be thought that I am insensitive to the pain imposed by expressions of racial or religious hatred, let me say that I have suffered that pain and empathize with others under similar verbal assault. My deep belief in the principles of the First Amendment arises in part from my own experiences.

I received my elementary education in a public school in a very small town in Nazi Germany. There I was subjected to vehement anti-Semitic remarks from my teacher, classmates and others- “Judensau” (Jew pig) was far from the harshest. I can assure you that they hurt.

More generally, I lived in a country where ideological orthodoxy reigned and where the opportunity for dissent was severely limited.

The lesson I have drawn from my childhood in Nazi Germany and my happier adult life in this country is the need to walk the sometimes difficult path of denouncing the bigots’ hateful ideas with all my power, yet at the same time challenging any community’s attempt to suppress hateful ideas by force of law.

Obviously, given my own experience, I do not quarrel with the claim that words can do harm. But I firmly deny that a showing of harm suffices to deny First Amendment protection, and I insist on the elementary First Amendment principle that our Constitution usually protects even offensive, harmful expression.

That is why-at the risk of being thought callous or doctrinaire – I feel compelled to speak out against the attempt by some members of the Stanford community to enlarge the area of forbidden speech under the Fundamental Standard. Such proposals, in my view, seriously undervalue the First Amendment and far too readily endanger its precious content. Limitations on free expression beyond those established by law should be eschewed in an institution committed to diversity and the First Amendment.

In explaining my position, I will avoid extensive legal arguments. Instead, I want to speak from the heart, on the basis of my own background and of my understanding of First Amendment principles-principles supported by an ever larger number of scholars and Supreme Court justices, especially since the days of the Warren Court.

Among the core principles is that any official effort to suppress expression must be viewed with the greatest skepticism and suspicion. Only in very narrow, urgent circumstances should government or similar institutions be permitted to inhibit speech. True, there are certain categories of speech that may be prohibited; but the number and scope of these categories has steadily shrunk over the last fifty years. Face-to-face insults are one such category; incitement to immediate illegal action is another. But opinions expressed in debates and arguments about a wide range of political and social issues should not be suppressed simply because of disagreement with those views, with the content of the expression.

Similarly, speech should not and cannot be banned simply because it is “offensive” to substantial parts or a majority of a community. The refusal to suppress offensive speech is one of the most difficult obligations the free speech principle imposes upon all of us; yet it is also one of the First Amendment’s greatest glories – indeed it is a central test of a community’s commitment to free speech.

The Supreme Court’s 1989 decision to allow flag-burning as a form of political protest, in Texas v. Johnson, warrants careful pondering by all those who continue to advocate campus restraints on “racist speech.” As Justice Brennan’s majority opinion in Johnson reminded, “If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” In refusing to place flag burning outside the First Amendment, moreover, the Johnson majority insisted (in words especially apt for the “racist speech” debate): “The First Amendment does not guarantee that other concepts virtually sacred to our Nation as a whole-such as the principle that discrimination on the basis of race is odious and destructive-will go unquestioned in the marketplace of ideas. We decline, therefore, to create for the flag an exception to the joust of principles protected by the First Amendment.” (Italics added.)

Campus proponents of restricting offensive speech are currently relying for justification on the Supreme Court’s allegedly repeated reiteration that “fighting words” constitute an exception to the First Amendment. Such an exception has indeed been recognized in a number of lower court cases. However, there has only been one case in the history of the Supreme Court in which a majority of the Justices has ever found a statement to be a punishable resort to “fighting words.” That was Chaplinsky v. New Hampshire, a nearly fifty-year-old case involving words which would very likely not be found punishable today. More significant is what has happened in the nearly half-century since: Despite repeated appeals to the Supreme Court to recognize the applicability of the “fighting words” exception by affirming challenged convictions, the Court has in every instance refused. One must wonder about the strength of an exception that, while theoretically recognized, has for so long not been found apt in practice. (Moreover, the proposed Stanford rules are not limited to face-to-face insults to an addressee, and thus go well beyond the traditional, albeit fragile, “fighting words” exception.)

The phenomenon of racist and other offensive speech that Stanford now faces is not a new one in the history of the First Amendment. In recent decades, for example, well-meaning but in my view misguided majorities have sought to suppress not only racist speech but also antiwar and antidraft speech, civil rights demonstrators, the Nazis and the Ku Klux Klan, and left-wing groups.

Typically, it is people on the extremes of the political spectrum (including those who advocate overthrow of our constitutional system and those who would not protect their opponents’ right to dissent were they the majority) who feel the brunt of repression and have found protection in the First Amendment; typically, it is well meaning people in the majority who believe that their “community standards,” their sensibilities, their sense of outrage, justify restraints.

Those in power in a community recurrently seek to repress speech they find abhorrent; and their efforts are understandable human impulses. Yet freedom of expression – and especially the protection of dissident speech, the most important function of the First Amendment-is an anti-majoritarian principle. Is it too much to hope that, especially on a university campus, a majority can be persuaded of the value of freedom of expression and of the resultant need to curb our impulses to repress dissident views?

The principles to which I appeal are not new. They have been expressed, for example, by the most distinguished Supreme Court justices ever since the beginning of the Court’s confrontations with First Amendment issues nearly seventy years ago. These principles are reflected in the words of so imperfect a First Amendment defender as Justice Oliver Wendell Holmes: “If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought-not free thought for those who agree with us but freedom for the thought that we hate.”

This is the principle most elaborately and eloquently addressed by Justice Louis D. Brandeis, who reminded us that the First Amendment rests on a belief “in the power of reason as applied through public discussion” and therefore bars “silence coerced by law-the argument of force in its worst form.”

This theme, first articulated in dissents, has repeatedly been voiced in majority opinions in more recent decades. It underlies Justice Douglas’s remark in striking down a conviction under a law banning speech that “stirs the public to anger”: “A function of free speech [is] to invite dispute…. Speech is often provocative and challenging. That is why freedom of speech [is ordinarily] protected against censorship or punishment.”

It also underlies Justice William J. Brennan’s comment about our “profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks”-a comment he followed with a reminder that constitutional protection “does not turn upon the truth, popularity or social utility of the ideas and beliefs which are offered.”

These principles underlie as well the repeated insistence by Justice John Marshall Harlan, again in majority opinions, that the mere “inutility or immorality” of a message cannot justify its repression, and that the state may not punish because of “the underlying content of the message.” Moreover, Justice Harlan, in one of the finest First Amendment opinions on the books, noted, in words that Stanford would ignore at its peril at this time:

“The constitutional right of free expression is powerful medicine in a society as diverse and populous as ours….To many, the immediate consequence of this freedom may often appear to be only verbal tumult, discord and even offensive utterance. These are, however, within established limits, in truth necessary side effects of the broader enduring values which the process of open debate permits us to achieve. That the air may at times seem filled with verbal cacophony is, in this sense, not a sign of weakness but of strength.”

In this same passage, Justice Harlan warned that a power to ban speech merely because it is offensive is an “inherently boundless” notion, and added that “we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.” (The Justice made these comments while overturning the conviction of an antiwar protestor for “offensive conduct.” The defendant had worn, in a courthouse corridor, a jacket bearing the words “Fuck the Draft.” It bears noting, in light of the ongoing campus debate, that Justice Harlan’s majority opinion also warned that “we cannot indulge in the facile assumption that one can forbid particular words without also running the substantial risk of suppressing ideas in the process.”)

I restate these principles and repeat these words for reasons going far beyond the fact that they are familiar to me as a First Amendment scholar. I believe-in my heart as well as my mind- that these principles and ideals are not only established but right. I hope that the entire Stanford community will seriously reflect upon the risks to free expression, lest we weaken hard-won liberties at Stanford and, by example, in this nation.

– Adapted from two letters to the chair of the Student Conduct Legislative Council, dated March 10 and May 1, 1989, and published in Stanford University Campus Report on March 15 and May 3, respectively.