This is one in a series of occasional articles from BPC Fellow Steven F. Hayward. The opinions expressed reflect those of the author and not necessarily those of the Bipartisan Policy Center.
The ongoing campus controversies over free speech versus hate speech grind along deepening ruts that cannot escape two difficulties. The first is that a rigorous and intelligible definition of “hate speech” is elusive. The second is that current First Amendment jurisprudence defaults in favor of maximum protection for such speech, even when it makes explicit invidious attacks, bordering on incitement, on what the Supreme Court terms “discrete and insular minorities.” Think for example of the Supreme Court decision that struck down legislative bans on cross burnings, notwithstanding the plain history and obvious intent of this symbolic expression of overt hostility towards African Americans. This is why public universities have to host duly-invited speakers like Richard Spencer, whether they want to or not.
It is no wonder that surveys show a significant plurality of students having low regard for the free speech absolutism of the First Amendment, which arguably drives a diminished regard for the Constitution as a whole. My “anecdata” for this statement is my practice of asking classes how many believe the First Amendment and even the Constitution itself are obsolete. The question usually elicits about 40% of the class answering affirmatively. Survey data confirms what I find in my own classrooms: a 2018 Gallup/Knight Foundation survey of college students found that 64% do not believe the Constitution should protect “hate speech”; 73% support campus policies that restrict offensive slurs; and 30% support policies to limit the expression of offensive political views on campus.
One proposed standard for defining and drawing a line against hate speech on campus, advanced by New York University’s Ulrich Baer and others, is any speech which denies or calls into question the essential humanity or dignity of any specific person or group.
This may sound sensible on the surface, but defects emerge with a closer look. Who would make judgment about which speakers cross the line? How would a university keep this from becoming a veto mechanism for any group that objects to the point of view of proposed speaker? This standard, applied strictly, would justify blocking Pope Francis from a campus visit because LGBTQ students feel threatened by the orthodox Catholic teachings on human nature and sexuality. Or how about Harvard economist George Borjas, who has been marshalling empirical arguments for decades on behalf of the position that low-skilled immigration from Latin America should be sharply curtailed? There is no way to make this standard workable without it being arbitrary and potentially becoming a veto mechanism for legitimate, if controversial, viewpoints of those such as Charles Murray.
Perhaps there is a more robust and less arbitrary standard that would enable a public university to resist the Spencers of the moment. The chain of logic behind this alternative standard is straightforward but surprisingly neglected today, and runs as follows: People like Spencer insist upon the strict vindication of their absolute right of free speech under the First Amendment, and rush to federal court to enforce that right whenever a public university, such as Auburn University in 2016, resists accommodating them.
But what is the ultimate basis of the right to free speech? It is not merely the words set upon parchment two centuries ago, but something deeper: the right of free speech is rooted in the broader idea of the freedom of conscience—the freedom to think for oneself—that is in turn based on the natural political equality of all human beings. Claiming a right to free speech on behalf of an explicit ideology that denies the ultimate ground for free speech is clearly contradictory.
In other words, a white supremacist like Spencer is demanding the vindication of his right to deliver speech whose substantive content, if it came to fruition, would deny that equal right of speech to others. A university can therefore say: “We decline to host a speaker whose ideology would deny the same right of free speech to others.” We can see this principle at work in other modern democracies. Germany’s postwar constitutional prohibition on Nazi activism goes beyond mere historical contingency.
To be sure, this standard at a public university would not survive a court challenge (private universities have somewhat more latitude to circumscribe speech), but it may still be useful for a public university to embrace this standard because it would enable them to take the initiative and turn the tables on an extremist speaker, instead of repairing behind the defensive statements often issued that a university has no choice but to host a speaker whose views the university community widely deplores.
A university might even require that such speakers be introduced with the following statement:
The university wishes to highlight the contradiction of a speaker claiming a right of free speech that he would deny to others, and challenges him directly to justify this double-standard.
This would have the effect of putting someone like Spencer on the defensive at the outset, eliciting either an incoherent explanation, or an avoidance of the challenge that would discredit the speaker.
This is not a world-beating standard but would likely be more productive to constructive campus debates than trying to draw the necessarily fuzzy line demarcating “hate speech.”