Regulating Racist Speech on Campus: A Modest Proposal?

REGULATING RACIST SPEECH ON CAMPUS: A MODEST PROPOSAL?t NADINE STROSSEN* TABLE OF CONTENTS Introduction ................................................... I. Some Limited Forms of Campus Hate Speech May Be Regulable Under Current Constitutional Doctrine .......... A. General ConstitutionalPrinciplesApplicable to Regulating Campus Hate Speech ...................... B. ParticularSpeech-Limiting DoctrinesPotentially Applicable to Campus Hate Speech .................... 1. Fighting Words ................................... 2. IntentionalInfliction of Emotional Distress ......... 487 495 495 507 508 514 t The title is drawn from Jonathan Swift's essay A Modest Proposalfor preventing the Children ofpoor Peoplefrom being a Burthen to their Parentsor the Country, andfor Making them Beneficial to the Public (Dublin 1729), in JONATHAN SwIFr 492 (A. Ross & D. Woolley eds. 1984). This Article not only responds to the specific points made in Lawrence, If He Hollers Let Him Go: Regulating Racist Speech on Campus, 1990 DUKE L.J. 431 [hereinafter Lawrence], but also addresses the general issues raised by the many recent proposals to regulate racist and other forms of hate speech on campus. Professor Strossen's Article, as well as Professor Lawrence's, are expanded versions of oral presentations that they made at the Biennial Conference of the American Civil Liberties Union (ACLU) in Madison, Wisconsin on June 16, 1989 (available from author). After discussion of these presentations, the Conference adopted the following resolution: The ACLU should undertake educational activities to counter incidents of racist, sexist, anti-semitic and homophobic behavior (including speech) on school campuses and should encourage school administrators to speak out vigorously against such incidents. At the same time, the ACLU should undertake educational activities to counter efforts to limit or punish speech on university campuses. The ACLU has taken action to implement both prongs of this resolution. See infra note 17 and text accompanying notes 344-55. * Professor of Law, New York Law School. A.B., 1972, Harvard-Radcliffe College; J.D., 1975, Harvard Law School. Professor Strossen is a General Counsel to the ACLU, and serves on its Executive Committee and National Board of Directors. She thanks Charles Baron, Jean Bond, Ava Chamberlain, Elsa Cole, Donald Downs, Eunice Edgar, Stephen France, Ira Glasser, David Gold. berger, Thomas Grey, Gerald Gunther, Nat Hentoff, Mary Heston, Martin Margulies, Mar Mat. suda, Michael Meyers, Gretchen Miller, Colleen O'Connor, Taggarty Patrick, john powell, John Roberts, Alan M. Schwartz, Judge Harvey Schwartz, Robert Sedler, Norman Siegel, Peter Siegel, William Van Alstyne, and Jane Whicher for information and insights they shared regarding the subject of this Article. For comments on earlier versions of the Article, she thanks Ralph Brown, Edward Chen, Norman Dorsen, Bernie Dushman, Stanley Engelstein, Eric Goldstein, Franklyn Haiman, Morton Halperin, Alon Harel, Leanne Katz, Martin Margulies, Maimon Schwarzschild, and Samuel Walker. For their research assistance, she expresses special thanks to Jennifer Colyer and Marie Newman, who provided help throughout this project. For additional research assistance, she thanks Marie Costello, Jayni Edelstein, Ramyar Moghadassi, and Julia Swanson. Vol. 1990:484] A MODEST PROPOSAL? 3. Group Defamation ................................ 517 C. Even a Narrow Regulation Could Have a Negative Symbolic Impact on Constitutional Values ............. 520 II. Professor Lawrence's Conception of Regulable Racist Speech Endangers Free Speech Principles .................. 523 A. The ProposedRegulations Would Not Pass ConstitutionalMuster ................................. 524 1. The Regulations Exceed the Bounds of the Fighting Words Doctrine ................................... 524 2. The Regulations Will Chill ProtectedSpeech ....... 526 B. The Proposed Regulations Would Endanger FundamentalFree Speech Principles.............. 531 1. Protection of Speech Advocating Regulable Conduct. .......................................... 531 2. Proscriptionon Content-BasedSpeech Regulations... 533 a. The indivisibility offree speech................. 533 b. The slippery slope dangers of banning racist speech. ............................. 537 c. The content-neutralityprinciple reflects sensitivity to hate speech's hurtfulpower .................. 539 III. Professor Lawrence's Rationales for Regulating Racist Speech Would Justify Sweeping Prohibitions, Contrary to Free Speech Principles .................................... 541 A. Brown and Other Cases Invalidating Governmental Racist Conduct Do Not Justify Regulating NonGovernmental Racist Speech .......................... 541 1. The Speech/Conduct Distinction ................... 542 2. The PrivateAction/State Action Distinction ........ 544 B. The Non-Intellectual Content of Some Racist Speech Does Not Justify Its Prohibition ....................... 547 IV. Prohibiting Racist Speech Would Not Effectively Counter, and Could Even Aggravate, the Underlying Problem of Racism ................................................... 549 A. Civil LibertariansShould Continue to Make Combating Racism a Priority .................................... 549 B. PunishingRacist Speech Would Not Effectively Counter R acism .............................................. 554 C. Banning Racist Speech Could Aggravate Racism ....... 555 V. Means Consistent with the First Amendment Can Promote Racial Equality More Effectively Than Can Censorship ...... 562 Conclusion ..................................................... 569 DUKE LAW JOURNAL [Vol. 1990:484 Freedom of speech is indivisible; unless we protect it for all, we will have it for none.1 -Harry Kalven, Jr. If there be minority groups who hail this holding [rejecting a first amendment challenge to a group libel statute] as their victory, they might consider the possible relevancy of this ancient remark: "Another such victory and I am undone." 2 -Hugo Black, Jr. The civil rights movement would have been vastly different without the shield and spear of the First Amendment. The Bill of Rights... is of particular importance to those who have been the victims of 3 oppression. -Benjamin L. Hooks It is technically impossible to write an anti-speech code that cannot be twisted against 4speech nobody means to bar. It has been tried and tried and tried. -Eleanor Holmes Norton The basic problem with all these regimes to protect various people is that the protection incapacitates.... To think that I [as a black man] will ... be told that white folks have the moral character to shrug off insults, and I do not .... That is the most insidious, the most insulting, the most racist statement of all!5 -Alan Keyes Whom will we trust to censor communications and decide which ones are "too offensive" or "too inflammatory" or too devoid of intellectual content?... As a former president (...truncated)