Burning Crosses on Campus: University Hate Speech Codes

Debates about the value and constitutionality of hate speech regulations on college campuses have deeply divided academics for over a decade. The Supreme Court’s recent decision in Virginia v. Black, recognizing a state’s power to criminalize intentionally intimidating cross burning at long last provides the key to resolving this heated dispute. The opponents of hate speech codes argue that such regulation guts our concept of free speech. One prominent scholar claims that this censorship would nullify the First Amendment and have “totalitarian implications.” Another constitutional expert, Erwin Chemerinsky, asserts that the “public university simply cannot prohibit the expression of hate, including antisemitism, without running afoul of [established First Amendment principles].” On the other end of the spectrum are authors who argue that hate speech attacks individuals’ Fourteenth Amendment right to equality, which outweighs any cathartic desire to degrade people because of their race, ethnicity, sexual orientation, and religion. This line of thinking recognizes the fundamental right to free speech but argues that it can be restrained when used to intrude on others’ dignity rights. The advocates of campus hate speech codes claim that a college’s mission to further intellectual freedom is not undermined by restricting intimidating speech on campus; consequently, some scholars argue that curbing racist and xenophobic speech would not undermine the core purpose of higher education—the acquisition of truth. Both factions have relied on the Supreme Court’s First Amendment precedents to bolster their claims. This Article adds a fresh perspective to this decades-old academic tempest of intellectual disagreement about First Amendment theory. It first discusses the current problem of hate speech on college campuses. It then turns to a survey of First Amendment jurisprudence that is relevant to the regulation of hate speech on campus. Then it compares and contrasts international approaches to that of the United States. The final portion of the Article analyzes the narrow and broad implications of the Supreme Court’s rational in Virginia v. Black to develop two forms of college hate speech regulations that are likely to withstand First Amendment challenges