Freedom of Speech and Equality: Do We Have to Choose?

Journal of Law and Policy Volume 25 | Issue 1 Article 7 12-2-2016 Freedom of Speech and Equality: Do We Have to Choose? Nadine Strossen Follow this and additional works at: https://brooklynworks.brooklaw.edu/jlp Part of the Constitutional Law Commons, First Amendment Commons, Jurisprudence Commons, Law and Politics Commons, Legal History Commons, Legislation Commons, and the Other Law Commons Recommended Citation Nadine Strossen, Freedom of Speech and Equality: Do We Have to Choose?, 25 J. L. & Pol'y (2016). Available at: https://brooklynworks.brooklaw.edu/jlp/vol25/iss1/7 This Article is brought to you for free and open access by the Law Journals at BrooklynWorks. It has been accepted for inclusion in Journal of Law and Policy by an authorized editor of BrooklynWorks. FREEDOM OF SPEECH AND EQUALITY: DO WE HAVE TO CHOOSE?^ Nadine Strossen INTRODUCTION As a lifelong activist on behalf of both equality and free speech, I am convinced, based on actual experience, that these core values are mutually reinforcing and not, as some have argued, in tension with each other. Moreover, I am convinced that this is true even for offensive speech that affronts our most cherished beliefs, including our belief—to quote the Declaration of Independence—that we are all “created equal” and equally “endowed . . . with certain unalienable rights.”1 On campuses, polls show substantial support for suppressing offensive speech in general and hate speech in particular2 because ^ This essay is based on a lecture that Nadine Strossen delivered at the University of North Carolina in Chapel Hill, North Carolina on March 24, 2016. Prof. Strossen gratefully acknowledges her Research Assistants, New York Law School students Jakub Brodowski, Julio Piccirillo, and Rachel Searle, for their assistance with converting the lecture to essay format, including by drafting most of the footnotes. For almost all footnotes, both credit and responsibility are due to these Research Assistants, as well as to the officers and editors of the Brooklyn Journal of Law & Policy. * Nadine Strossen is the John Marshall Harlan II Professor of Law at New York Law School. She has written, lectured, and practiced extensively in the areas of constitutional law, civil liberties, and international human rights. From 1991 through 2008 she served as president of the American Civil Liberties Union, the first woman to head the nation’s largest and oldest civil liberties organization. Professor Strossen is currently a member of the ACLU’s National Advisory Council. 1 THE DECLARATION OF INDEPENDENCE para. 1 (U.S. 1776). 2 In this essay, I will use the term “offensive speech” to refer to any speech conveying any thought that any of us hates because we consider it wrong, evil, dangerous, upsetting, or harmful in any way, including because it insults our most 185 186 JOURNAL OF LAW AND POLICY so many students, to their credit, find hate speech to be offensive and intolerant.3 It is important to understand that the arguments for suppressing hate speech also apply fully to other types of offensive speech, which cause the same kinds of psychic, emotional harms to people’s senses of identity, dignity, and security that are cited as justifications for repressing hate speech. Therefore, if you are persuaded that these harms warrant suppressing hate speech, you will either have to accept suppression of all offensive speech, or else find some way to distinguish this particular type of offensive speech. Both of those options are problematic, due to the inescapably vague, subjective determinations as to whether speech is “offensive” or conveys “hate.” Consequently, empowering officials to punish any such expression necessarily vests the officials with enormous discretionary power, which will inevitably be wielded in ways that are arbitrary at best, and discriminatory at worst. Officials can use this power to punish their critics, and to punish members of various marginalized minority groups or advocates of their rights. Indeed, the enforcement records of hate speech laws demonstrate that these dangers are far from hypothetical. Instead, where offensive or hateful speech is concerned, more speech, not less, should be the solution. The right of free speech guaranteed by the First Amendment is indivisible and reciprocal. Restricting an individual’s rights jeopardizes the rights of many, as that same censorship can eventually be turned and applied to the individual invoking the right. As one commentator put it, “verbal purity is not social change.”4 cherished beliefs, or our deepest senses of personal identity, dignity and security. I will use the term “hate speech” as it is generally used in public discourse, to refer to a specific type of offensive speech: biased or stereotyped ideas on the basis of race, religion, gender, sexual orientation, or any other aspect of social identity. Neither term has a specific legal definition precisely because the Supreme Court has steadfastly refused to exclude such speech from the First Amendment’s free speech guarantee. Therefore, neither term is a constitutional law term of art that corresponds to a Court-defined carve-out from the First Amendment. 3 Jeffrey M. Jones, College Students Oppose Restrictions on Political Speech, GALLUP (Apr. 5, 2016), http://www.gallup.com/poll/190451/collegestudents-oppose-restrictions-politicalspeech.aspx?g_source=Education&g_medium=newsfeed&g_campaign=tiles. 4 As quoted in Hate Speech on Campus, AM. C.L. UNION, https://www.aclu.org/other/hate-speech-campus (last visited Jan. 19, 2017). FREEDOM OF SPEECH AND EQUALITY 187 I. THE CURRENT STATE OF HATE AND FREE SPEECH A. There is No Categorical Free Speech Exclusion for Offensive or Hate Speech Contrary to much popular misunderstanding, there is no exception to the First Amendment’s free speech guarantee for speech whose message is offensive or hateful. The Supreme Court has repeatedly reaffirmed that the “bedrock principle”5 underlying our free speech rights is that government may never suppress speech just because officials or citizens disapprove of the ideas it conveys, even if the vast majority of us consider those ideas absolutely abhorrent. This cardinal principle is usually called “content neutrality” or “viewpoint neutrality.”6 The First Amendment bars government from restricting any speech just because of any negative intellectual, psychological, or emotional reaction to its message.7 Instead, the government must neutrally and even-handedly protect expression for all ideas. This important duty belongs to all government bodies, including public universities, pursuant to the state action doctrine. In fact, the Supreme Court has held that this neutrality rule is especially important at universities, consistent with their educational mission, which is expressly to broaden students’ 5 Texas v. Johnson, 491 U.S. 397, 414 (1989) (“If there is a bedrock principle underlying the First Amendment, it is that the govern (...truncated)