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Philosophy of Law

The Moral Core of U.S. Constitutional Bans on Hate Speech Codes

Norman Fischer
Kent State University

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ABSTRACT: The striking down of the Stanford University Hate Speech Code on February 27, 1995 demonstrated the strong animus in U.S. First Amendment decisions against such codes. Judge Peter Stone, applying the U.S. Supreme Court decision in R.A.V. ruled, first, that the Stanford Code was too broad, and second, that the state cannot censor content by picking out some "fighting words" to prohibit. I argue that the moral basis for banning overbroad codes combines a nonconsequential emphasis on the value of liberty with a consequentialist analysis of what happens when liberty that should be protected is entangled in codes reflecting liberty that should not be protected. In contrast, the moral basis for content neutrality does not depend on consequentialist thinking, but shows that the very search for a moral basis for banning the purest acts of hateful speech logically makes the speech protected by elevating it to a viewpoint.

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The striking down of the Stanford University hate speech code on February 27, 1995 logically concluded a strong animus in U. S. First Amendment decisions against such codes. Judge Peter Stone, applying the U. S. Supreme Court decision in R.A.V. ruled, first, that the Stanford code was over broad, and second that the state cannot censor content by picking out some "fighting words" to prohibit. (1) My argument is that the moral basis for banning codes because they are overbroad combines a nonconsequentialist emphasis on the value of liberty, with a consequentialist analysis of what happens when liberty that should be protected is swept up in codes aiming at liberty that should not be protected. In contrast the moral basis for content neutrality does not depend on consequentialist thinking, but shows that the very search for a moral basis for banning the purest acts of hateful speech logically makes the speech protected by elevating it to a viewpoint.

Both St. Paul and Stanford had prohibited certain words and symbols that were commonly held to stigmatize individuals on the basis of their membership in groups, characterizing them as "Fighting words," thus going back to the famous "Chaplinsky" Supreme Court case, which held that there were some words which were unprotected by the First Amendment because their sole purpose was to make people fight. For Edward Cleary, who successfully argued R.A.V. in front of the Supreme Court, R.A.V. brings to fruition the line of legal thought that limits "fighting words" to a purely contextual definition. For Cleary R.A.V. says that group offence at certain words could not justify state censorship of these words. In contrast, for Tom Grey, the architect of the Stanford Code, R.A.V. and Corry are constitutional and moral aberrations that block the he full development of antidiscrimination law. (2)

To highlight Judge Stone's achievement it must be understood that not only did he strike down the alleged right to censor based on group membership aspect of the Stanford code, but he also identified this aspect as the core of the code, hidden under the shell of the concepts "fighting words" and "harassment." Beneath that shell the core of the Stanford code, as R.A.V. should have made clear, is the same unjustified extension of fourteenth amendment equality rights, to the idea that a class of words that are held to stigmatize groups can be censored. Hence, after February 27, 1995, hate speech codes on U. S. campuses can more easily be seen as group censorship codes, even when hidden under the shell of a "fighting words" concept bloated far beyond a contextual definition of them, or a harassment concept bloated far beyond work place discrimination.

Beyond the issue of whether the new standard in the U. S. of striking down hate codes on or off campus is a constitutionally correct interpretation of the First Amendment, the Stanford ruling raises the question of whether it and R.A.V. before it are morally proper in what they imply for free speech and for group interests in equality and nondiscrimination.

The common denominator found in many defenses of hate speech codes is that they emphasize that their result will be to increase, through equality, the liberty of potentially stigmatized groups. The moral defense of constitutional bans on codes must address this claim and Tom Grey's question as to whether, since the equal protection clause of the fourteenth amendment demands non discrimination in such areas as equal access to the facilities of the University, therefore it can also limit liberty through restrictions on speech stigmatizing groups, since such stigmatization itself violates equal access and thus liberty. Neither Corry nor R.A.V. provide a morally adequate account of this issue. Before we can understand the strongest moral argument against hate speech codes, we must understand the strongest moral argument for them. the strongest possible argument for the codes must be teased out of such Constitutional/moral defenders as Grey.

The moral claims for group equality that are contained in St. Paul, Stanford type codes must center on the core inegalitarian element in the hate that these codes try to stop. But what is that core inegalitarian element in hate? This is a question that such defenders of the codes as Grey have not concentrated on enough. At present the answer to the question of what is the core inegalitarian element in the hate that the codes are supposed to stop is certainly elusive at best, which is why the hate codes have been and should be struck down because of their "overbreadth," vagueness and chilling effect, i.e., one of the reasons cited in both R.A.V. and Corry for finding the codes unconstitutional. It is hence relatively easy to provide an argument for the moral validity of the "overbreadth" constitutional argument. It is simply that, in the interests of prohibiting speech which is not worthy, there is too great a danger that speech that is worthy will be stopped. Indeed, Grey accept that overbreadth is an issue, but differs with R.A.V. and Corry on how much of an issue it is. Certainly in his ruling Judge Stone dashed the hopes of Cass Sunstein, who had expressed his wish that the R.A.V. ruling striking down a city code would not be extended to college campuses. Sunstein argued that colleges' and universities' special educational mission should exempt them from R. A.V.'s striking down of a city code. In "Liberalism, Speech Codes, and Related Problems" Sunstein, although clearly displeased with R.A.V., did not attack it's central conclusions, i.e., that the St. Paul code was first, over broad and therefore chilled speech, and second was a content and viewpoint based proscription. Instead Sunstein argued that the administration of a university or college has a broader right to censor speech than does a city like St. Paul, and thus is less subject of "overbreadth" distinctions, because of its special educational mission. Judge Stone showed no willingness to accept such a plea for special treatment of universities. Sunstein's dream has not come true. Campuses have not been given a post R.A.V. right to further their educational mission by a constitutional endorsement of their authority to fire employees who utter words that do not fit their mission. On this approach, Sunstein piously notes "teachers and researchers would almost always be protected." (3) To see the moral debate here, all one has to do is counterpose to Sunstein's paternalism Cleary's argument that the reason why the St. Paul ordinance was found over broad, was because in cases after chaplinsky the U. S. Supreme Court had systematically narrowed the possibility in interpreting "fighting words" broadly as a laundry list of words that stigmatize groups under the paternal protection of society to stop the offensive words. (4) The debate between Cleary and Sunstein/Grey on overbreadth thus charts the familiar moral territory of both individual liberty versus social interests, as well as the consequentialist issue of the possible harmful, "over broad" effects of any law. The moral issue is easy to understand, it's resolution difficult.

In contrast what is elusive is the moral issue itself in the second and most harshly criticized as merely libertarian aspect of R.A.V. and Corry, the idea that hate speech codes constitute content and viewpoint discrimination. Further analysis, however, of the difficulty in finding the core of hate that hate codes are after can lead us also to a purely moral nonconsequentialist defense of the content and viewpoint neutrality issues as well. Of course the moral defense of the codes is precisely that they should discriminate between words that stigmatize groups and those that do not, that only in that way can they protect the equality of members of the stigmatized group, including their equal right to liberty. To the opponents of R.A.V. and Corry what constitutionally strikes the codes down as content based censorship is what morally makes them worthwhile. This is a paradox that the moral defender of R.A.V. and Corry must answer.

To get at the core of hate and group stigmatization that these codes are after, and thus at the alleged moral basis of the codes, it is best to begin by getting at what even the defenders of the codes might admit is at their periphery. If we show the moral weakness of the periphery we are better prepared to see the moral weakness of the center. What is this periphery?

The answer is that many hate speech codes go far beyond restricting hate against gender and race, and go on to add a "peripheral" laundry list of group stigmatization. To pick one example out of this laundry list, why do strictures on speech against veteran's status, found sometimes in campus codes, stick out like a sore thumb? The reason is that from the standpoint of liberty of speech people have the right to strongly criticize moral choices, and veteran's status seems to represent, at least in part, a moral choice. Let us turn to religion and sexual orientation as another part of the "periphery." Although some may dispute that either religion or sexual orientation are primarily a matter of moral choice, others may claim that they are, and the issue is certainly one of legitimate debate. If they are moral choices, then a liberal state must respect the right of a person to select these moral choices; but it must also respect the right to criticize those moral choices. Some will dispute that they are moral choices, but then the state must respect the right of people to dispute about that.

Now, of course. R.A.V. and Corry respect the right of people to make these choices. But they do not demand, and indeed disallow, mandating something further, namely that we refrain from criticizing the group to which one comes to belong by exercising that right to make choices Here we can distinguish between a strong and a weak concept of respecting a right. On the strong concept, even though we may disagree with what is chosen, we respect first the exercise of the right, and second the autonomy shown in the exercise of the right. On the weak notion, even though we may disagree with what is chosen, we respect the exercise of the right, just because it is a right, not because any autonomy is shown. But the same analysis can be applied to someone who criticizes the moral choice made in becoming a veteran, joining a religion or adopting a sexual orientation. Thus on the one hand, these choices could be respected in a weak sense because the right to make the choices is respected, or they could be respected in the strong sense that these choices exhibit autonomy. On the other hand the right to criticize these choices could be respected in a weak or strong sense. We now begin to see the clear difference between the moral defense of the content neutral aspect of R.A.V. and Corry, and the moral critique of content neutrality as applied to hate codes. The critic of R.A.V. or Corry, particularly the second, "content neutrality" aspect as opposed to the first "overbreadth" aspect, will say that precisely the problem is that those defending striking down the St. Paul and Stanford codes do not distinguish between strong and weak respect for exercise of rights. For if they did, they would certainly choose to rate hate speech against groups at a lower value than the expression of group orientation that is being stigmatized. On that basis, critics of R.A.V. and Corry would be willing to justify censoring the content of hate speech directed against groups, in the interest of both the equality and liberty of the stigmatized group. In the case of "peripheral" group stigmatization, where the membership in the group seems to involves some choice, the moral critic of R.A.V., Corry will hold that any choices made to join a stigmatized group should be respected in both a strong and a weak sense, whereas the choice to stigmatize membership in these groups should be respected in neither a strong nor a weak sense. To this the moral defender of R.A.V. and Corry asks how can we make such a sharp distinction between moral choices and still preserve that choice which is free speech? The logical answer for the moral critic of R.A.V. and Corry is to then say that the hate codes in their essence are not directed to stigmatization of the peripheries that give rise to this dilemma, but to stigmatization of a core group identity that constitutional and legislative history of the U.S. and many other countries has established as particularly worthy of protection: they will say that sexual, racial and ethnic identity are not subject to choice in anything remotely like membership in the groups that could be classified as of peripheral moral and constitutional interest might be said to be: that stigmatizing of people because of membership in the groups made up of racial, sexual and ethnic identity constitutes a pure act of hate. They are pure acts of discriminatory and inegalitarian hate because they are directed to fixed characteristic that cannot be changed. It is such pure acts of hate that hate codes aim to punish.

Thus, the purest acts of hate directed toward groups would have to be picked out by the moral defender of hate codes, and the attempt to stop purely peripheral expressions of hate toward moral choices to belong to a group, such as hate directed toward veteran's status, and, perhaps, to religion and sexual orientation, would have to be put at the periphery of the moral defense. The fundamental problem here for someone who wants to morally defend a content based hate code would be to limit hate codes so that they could only cover speech that is clearly expressive of pure hate. But what is it about pure hate then, that the moral defender of hate codes wants to get at? The answer would have to be that it is hate directed toward aspects of a person which were not at all the result of moral choices.

The first problem in explicating the idea of pure hate is ascertaining that the expresser of hate at least thought there was no moral choice involved. Consider the following examples. Rudyard Kipling's hatred of Americans after he gave up his attempt to settle in Vermont, and Nietzsche's hatred of women in his late writings on Wagner, like his hatred of Christians throughout all his writings, are all based on the idea that moral choices have been made in defining these groups. Should we censor these passages from Kipling and Nietzsche if read aloud on campus?

The second problem in explicating the idea of pure hate is whether an expression of pure hate must be purely an expression of hate. a similar problem has been the Achilles heel of obscenity/pornography legislation. There the issue has always been is the sexual expression in question only that, or is it more, such as a politics based on sexual expression, or intermingled with sexual expression. Similarly, when does the pure expression of hate intermingle with or become a politics based on hate?

Now it may seem that these problems about defining the pure hate which should be the object of moral opprobrium are still primarily problems of overbreadth and consequentialism. but in fact they also begin to define the nonconsequentilist moral debate over whether codes against group stigmatization constitute content based limits onliberty of speech. For these problems in defining pure hate suggest that hate codes face a paradox. The more they attempt to define the hate they want to get at in terms of the pure animus leading to group stigmatization, and thus to alleged violation of guarantees of nondiscrimination and equality of groups, such as are found in the Fourteenth Amendment, the more the U. S. judiciary will want to throw out the hate code because it is censoring the content of the speech, or the viewpoint that it represents. The first moral/constitutional problem of hate speech codes is consequentialism, overbreadth and chill. But the second moral/constitutional problem of hate speech codes is that independent of consequences, Logicalluy, as soon as "fighting words" become defined, as in the Stanford and St. Paul ordinances, in terms of group stigmatization that allegedly violates constitutional rights to equality, then they can no longer be censored, because they have become viewpoints, theories and political statements. If these codes are directed at impure acts of hate against peripheral groups which may be the result of moral choice, then they stop political discussion. This leads to the search for pure acts of hate. Aside from the difficulty, shown by the examples of Nietzsche and Kipling, of disentangling these pure acts of hate from impure acts, even if those pure acts of hate are defined, they are then defined by the legislative political theory of pure acts of hatred against fixed characteristics of race, sex and ethnicity. In contrast to this political theorizing about hate and fighting words found in the Stanford and St. Paul code, the original "fighting words" case of Chaplinsky was arguably a case of pure insult precisely because it was defined entirely by the context.

It is no accident that "fighting words" has become the legal battle cry in the concept of group hate. The essence of the idea is that there are words, the primary intent of which is to make the people they are directed at react in as abusive and, unreflective a mode as the people who uttered them. Hence, the idea of a politics based on them might seem absurd, since any philosophically elaborated politics involves persuasion. But this is not what results from R. A. V. and Corry. The paradox that emerges from these rulings is that it is the hate codes themselves which elaborate the "fighting words" into political stigmatization of groups, thus showing that the words that they want to censor must be protected by the First Amendment. Hence, they are not pure expressions of hate, and the moral defense of the codes against R.A.V. and Corry's content neutrality doctrine falls.

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(1) Corry v.. Stanford, no 740309, California Superior Court, Santa Clara County, unpublished, but available at http://www.Stanford.edu/group/law/library/welcome.htm (under treasures); R.A.V. v. City of St. Paul 505 U.S. (1992)

(2) Edward Cleary, Beyond the Burning Cross (New York: Random House, 1994), 172-190. Thomas C. Grey, " How to Write a Speech Code without really Trying: Reflections on the Stanford experience," 29 U.C. Davis L .Rev 917-923 (1996).

(3) Sunstein, in David Adams, ed, Philosophical Problems in the Law (Belmont: Wadsworth, 1996),193.

(4) Cleary, 40-50.

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