The constitutionality of hate speech legislation : a textualist/originalist examination

Controversy over assaultive speech has erupted from time to time in American society for almost a century.1 In recent years, however, that controversy has been pushed into the forefront of American life. Events at college campuses throughout the country have inspired the adoption of hate speech codes at many universities.2 In addition, recent trends around the world criminalizing hate speech indicate that American universities are not alone in being concerned about assaultive speech. Because of this controversy in our society, I have increasingly become curious about the possible benefits and drawbacks of hate speech policies. Should minorities and other victimized groups be legally shielded from verbal attacks? Will policies designed to protect them achieve the desired effect of minimizing verbal attacks against them? If so, do the policies constitute an unacceptable limitation on the freedom of expression? If so, do they violate the freedom of expression guaranteed by its Constitution?