Are “Hate” and “Racist’’ Speech Protected by the Constitution?

Recently, I was asked by a federal judge to appear on a panel of three at an Inns of Court in Houston on the topic, “Free Speech on Campus.”  The room was filled with federal, state and local judges, and attorneys.  The topic of hate speech and racist speech came up and whether the Constitution protected such speech. One panelist, a lawyer and regent at a major university in Texas, said that if a student on his campus flagrantly offended an African-American student, that offending student “would be history”—expelled immediately.

But another panelist, an African-American law-school student, said, “I know the word n_____ is protected.”  She cited the full word, and not just “n.”  My own view was that the law student was right and that the university regent took a moral position, but not a constitutional one.  An offending student denied a constitutional right could sue—if he or she could afford the huge attorney fees.  All public colleges and universities must follow the First Amendment because they receive government money.

Now what’s the point of all this?  No one should endorse or accept racist or hate speech, even if protected by the First Amendment.  But the growing problem these days is that the undefined terms “racist” and “hate speech” are being tossed around loosely against ideas or philosophies or research or political views or people, that critics, especially uninformed students, just don’t like—say a Condoleezza Rice.  Even traditional, respected conservatism has sometimes been labeled as racist or hate speech. And even free enterprise is often called a villain.

The recent case at Middlebury College regarding Charles Murray is on point.  His presentation was shut down by loud student protests charging hate and racist speech.  Even a faculty member was sent to the hospital for injury inflicted by the student mob as they attacked the car the faculty member was driving with Murray.  Many years ago I invited Dr. Murray to speak at my college, Hillsdale College.  He was a professional social scientist, giving a first-rate lecture, without a hint of hate or racism.  He’s now affiliated with the American Enterprise Institute, a nationally respected research center indeed.

Another relevant case comes to mind about the rejection of 1st Amendment protections at the University of Oklahoma.  It would be difficult to find speech more obnoxious and despicable than the ten-second chant that two Oklahoma SAE-fraternity brothers sang, claiming, “There will never be a n_____ SAE/You can hang him from a tree”— video recorded secretly on a private bus.  University President David Boren expelled the two students two days later and shut down the SAE fraternity.  He understandably took a moral position, but not a legal, constitutional one.  He was ripe for a lawsuit against him.

Eugene Volokh teaches free-speech law at UCLA’s School of Law and asserts:  ‘’There is no First Amendment exception for racist speech, or exclusionary speech, or . . . for speech by university students that ‘created a hostile educational environment for others.’”

Similarly, John Banzhaf, a professor at George Washington University’s Law School, argues that President Boren could be sued over his punishments of the two students on several grounds for clear constitutional violations.  Banzhaf summarizes these constitutional grounds as:  “There are many legal grounds. . . . These include violations of rights to free speech under the U. S. Constitution, violation of their rights to Due Process also guaranteed by the Constitution, violation of the procedural protections guaranteed by the university’s own ‘Student Rights Responsibilities Code,’ and legal action under local laws protecting people from summary evictions for their places of dwelling.”

Banzhaf adds, “There is no hate speech exception of the U. S. Constitution.”  He states further that under the Due Process clause of the Constitution, students cannot be expelled for even a short period, let alone permanently, without a hearing.

The harder question might be:  would you toss two kids out of school for singing a stupid ditty off campus on a private bus?  I personally would have talked with these kids, remembering that at their young age, they can be immature.  I would hate to think of the awful micro-aggressions I have committed in my lifetime, glad that a hidden device wasn’t recording my private indiscretions.

Robert Shibley, executive director of the Foundation for Individual Rights in Education (FIRE), says that the two Oklahoma students expelled for their racist comments on a video could have sued and likely won.  But the two students chose not to sue.  FIRE would have taken their case pro bono.

Courts are strongly protective of First Amendment rights.  For example, in 1992, the U. S. Supreme Court held in R.A.V v. St. Paul that even cross-burning is constitutionally protected speech, unless it is part of a credible, specific threat.  And the KKK was constitutionally permitted to march down streets in Jewish neighborhoods in Skokie, Illinois.  Then, too, the burning of the American flag is constitutionally protected as conduct that is expressive free-speech protest.  Similarly, when Samuel Alito was an appellate judge, he opined:  “There is no categorical ‘harassment exception’ in the First Amendment’s free speech clause.”  And quarterback Colin Kaepernick’s kneeling during the National Anthem was I think disgraceful, but protected protest.

Why should the public or any college campus care about the sovereignty of free speech?  The late Supreme Court Justice Antonin Scalia told us why:  “If you stop speech that hurts other peoples’ feelings, the First Amendment will become a dead letter.”  Freedom of speech and press is the lifeblood of a free society.  And the abuse of free speech, however outrageous, is the price we must pay for this freedom.


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