Can universities ban hate speech on campus?

Can public universities ban racist, sexist, or otherwise offensive speech?  Lee Rowland of the ACLU explains how the First Amendment affects free speech on campus.


  Lee Rowland is a senior staff attorney with the ACLU’s Speech, Privacy, and Technology Project.

Can universities ban hate speech on campus? Brief Transcript

Lee Rowland: “What is Hate Speech? Can public universities ban it from campus? As with so many First Amendment questions, the answers can be complicated. My name is Lee Rowland. I’m a first amendment attorney at the National ACLU. And we’re here to talk about Hate Speech on Campus. As a general matter, when people use the term hate speech, they’re often referring to identifiably hateful, often racist or sexist speech that demeans people based on characteristics they can't change. Under the First Amendment, that language no matter how disgusting, offensive we find it, and I certainly do, is still protected. That doesn't change on a public campus. The first amendment binds government from censoring or punishing you for engaging in speech that's protected. Public universities are a wing of the government and they are run by government bureaucrats. So when a public university says you can or you cannot say a certain word they are acting as the government and first amendment protections apply. Now there's one asterisk on the question of whether or not hate speech, or speech that’s hateful, on campus is protected. Which is that under Federal law, universities also have a duty to ensure that there is a learning environment available for all students, regardless of their race or sex. But federal laws cannot trump our constitution which is the supreme law of the land. Generally courts have held that political opinions, no matter how hateful, no matter disgusting or demeaning, are fully protected on college campuses just as they would be on a street or sidewalk, what’s called a ‘public forum’ under first amendment law. The only instances in which courts have ruled that a public university has a duty or an ability to silence speech on campus is when that speech becomes so specific and targeted at an individual student that their opportunities for learning are directly and personally curtailed. We’ve seen a number of recent examples at the campus of University of California Berkeley, in the past year or so where right wing provocateurs have singled out the campus, the birthplace of the free speech movement from many decades ago, to bring their hateful and racist ideas. When these speakers have come, whether it’s been Ann Coulter or Milo Yiannopoulos, predictably, mass controversy has erupted. That’s involved by the way of the school providing security to these speakers. Could Berkley throw its hands up and say ‘we’re sick of this. No more controversial speakers, no more hateful speakers, no more radicals’ the answer is no. The university of california is a government institution, which means that under the first amendment, the Constitutional rules apply to Berkeley as well. While campuses may be compelled under the First Amendment to allow even hateful speech to occur on the quad, campuses have a lot of ability to engage in more loving and inclusive counter-speech without offending any part of the Constitution. This illustrates the kind of beautiful but often messy cacophony that the first amendment creates and requires on campus and off. So do public universities have the ability to silence speakers who are hateful? Under the First Amendment, the answer is no. My name is Lee Rowland. I am a First Amendment attorney at the ACLU, and you’re watching TalksOnLaw.”