Page 23 - Delaware Lawyer - Fall 2019

ment, but a noose tacked to an African American student’s door in a dormito- ry could be regarded as harassment (or a true threat) unprotected by the First Amendment. ... Posting an anti-Asian rant on YouTube cannot be punished, but targeting Asian students with re- peated harassing emails can be.3
In this instance, the president will say, the fraternity brothers are not targeting your daughter or other Jewish students. They are merely expressing an abstract idea, albeit a vile one.
Of course, the president does not want an unhappy tuition-paying parent, so she will offer you this parting advice: “Tell your daughter that a university is a vibrant marketplace of ideas and that the best way to combat bad ideas in this marketplace is with good ideas. Your daughter should use hard facts and cool reason to expose the fallacy and sheer ignorance of the fra- ternity brothers’ message.”
Are you a satisfied customer, ready to open your checkbook the next time the university’s development office calls? Or is your stomach churning and your tem- perature rising?
If the latter is true, welcome to the world of people who can’t fathom why universities permit one group of students to disparage another. Indeed, a 2015 survey by the Yale University William F. Buckley Program found that 72 percent of students favored disciplinary action against “any student or faculty member on campus who uses language that is con- sidered racist, sexist, homophobic or oth- erwise offensive.”4
Contrary to what conservative pundits contend, these students are not fragile snowflakes seeking to be coddled by their university. They’re fighters and, to their credit, they are often fighting on behalf of students other than themselves.
So, what, then, is the argument for protecting hate speech on campus?
The Precious Right to Speak
It boils down to one core assumption: That our society is better off allowing people to express all manner of ideas — even foolish, dangerous and hateful ideas — than it is allowing the government to decide which ideas are permitted in public discourse. As a federal judge said in rul-
Freedom of speech
is endangered whenever governments decide which ideas may be expressed or heard.
ing that neo-Nazis could march in Skokie, Illinois, notwithstanding its large Jewish population: “[I]t is better to allow those who preach racial hatred to expend their venom in rhetoric rather than to be pan- icked into embarking on the dangerous course of permitting the government to decide what its citizens may say or hear.”5
This abstract argument may be cold comfort to gay students hearing that ho- mosexuality is a disease and Latin Ameri- can students hearing that Mexicans are criminals and rapists.6 But the argument reflects a hard-earned lesson derived from centuries of struggle to secure the pre- cious right to speak.
Put bluntly, freedom of speech is nei- ther the natural state of affairs nor the most common. To the contrary, the right to speak freely has been the exception for most of history and continues to be the exception for most people living in the world today.
“Persecution for the expression of opinions,” Justice Oliver Wendell Holmes wisely observed, is “perfectly logical.”7 For those in power, whether they be monarchs, religious leaders, politburos or democratic majorities, the natural incli- nation is to suppress speech that under- mines their power or questions their core assumptions.
It is only when people realize, Holmes continued, “that time has upset many fighting faiths” — that the sun did not re- volve around the earth, that God did not place the king on the throne, that slavery is unjustifiable, that communism did not replace capitalism — that they come to ap- preciate that “the best test of truth is the power of the thought to get itself accepted
in the competition of the market.” 8 History also teaches that minority groups and dissenting voices are the first to suffer when free speech is not pro- tected. We could give historic examples of Galileo, Protestant reformers, aboli- tionists, anti-war activists and civil rights protesters, but it is more compelling to consider contemporary examples of gov- ernments suppressing speech by Uyghurs in China, journalists in Saudi Arabia, and democratic reformers in Myanmar, Rus- sia, Iran, Venezuela, Egypt and countless
other countries.
The lessons are simple but vital: Free-
dom of speech is endangered whenever governments decide which ideas may be expressed or heard, and free speech has proven to be the ally, not the enemy, of those seeking greater recognition and equal treatment.
An example illustrates the inherent
wisdom of these lessons.
The Slippery Slope of Regulating Speech
Let’s return to your Jewish daughter in college and imagine that you succeeded in convincing the university to adopt a code to regulate hate speech on campus. The university’s code, modeled after a code once used at the University of Wisconsin, prohibits racist or discriminatory com- ments that demean an individual student or group of students based on their race, sex, religion, disability or sexual orienta- tion and create an intimidating, hostile or demeaning environment for education.9
This sounds great, and when you learn that the university subsequently sus- pended the fraternity brothers until they agreed to stop displaying their “Hitler Was Right” sign, you pat yourself on the back.
Everything is going swimmingly until it’s “Table Day” at the university, when student organizations display their litera- ture on tables in the central quad and seek out new members.
After the event, the president’s office is overwhelmed with students complaining that other students violated the univer- sity’s hate speech code. Here’s a short list of some of the complaints:
• Women students who have had abortions claiming that they were de- meaned by a pro-life group that hand-
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