Page 22 - Delaware Lawyer - Fall 2019

FEATURE
Alan E. Garfield
Safe Zone
Free speech on the campus quad
It’s complicated. That’s the beginning of wisdom when it comes to hate speech regulation on college campuses.
20 DELAWARE LAWYER FALL 2019
Why so complicated? Isn’t it obvious that hate speech is unworthy of First Amendment protection? Doesn’t protecting hate speech dignify hatred and provide cover for racists and misogynists to victimize disadvantaged groups?
Just imagine that you are a success- ful lawyer who recently sent your Jewish daughter off to college and paid the steep tuition bill. Weeks later, you received a late-night distress call from your daugh- ter complaining through her tears that members of a fraternity had been holding daily vigils on campus with signs that said “Hitler Was Right.”
You may recall from law school that “there is no such thing as a false idea” under the First Amendment.1 But aren’t there some ideas which are so indis- putably false that they don’t merit con- stitutional protection? Isn’t the “right- ness” of Hitler’s ideas a quintessential example?
Besides, even if the First Amendment allows members of the general public to spew this awful venom, doesn’t a univer- sity have an obligation to ensure that its students are not made to feel unwelcome on campus, which is, after all, their home
away from home?
Will you be satisfied if the univer-
sity president tells you that she will pub- licly condemn the fraternity members’ speech, but that the fraternity brothers have a right to express their despicable ideas on campus? Will you be comfort- ed by her explanation that a university would fail its essential mission if it did not permit the robust exchange of ideas, even if some ideas are offensive, disagree- able and hateful?
You might push back — you are a lawyer, after all — and remind the presi- dent that threats are not protected by the First Amendment and that civil rights laws require universities to protect stu- dents from harassment.2 “You’re right,” the president will concede, but she will explain that those exceptions apply only when speech is targeted at individual stu- dents and isn’t simply the expression of an abstract idea. Admittedly, the line be- tween these can be difficult to draw, but the president will point to illustrations from legal scholars Erwin Chemerinsky and Howard Gillman:
[A] noose placed on a tree on a cam- pus cannot by itself be deemed harass-
or Battle Zone?