Ed. Note: In light of United States Rep. Anthony Brown’s (D-MD) proposed bill to prohibit “hate speech” on campus, Andrew King and Chris Seaton have agreed to debate whether Congress should craft “hate speech” prohibitions for colleges. This is Andrew’s argument:

Last year saw a number of political events end in violence, and this year that type of violence has mainly shifted to campuses. These violent protests disrupt normal operations, often result in damage to property and injury to people, and cost the colleges for additional security. It’s time, energy, and money that could instead be spent on offering more critical feminist theory classes on campus. And with all the media attention, it is inevitable that politicians would want to wade into this situation and solve the problem at the farthest distance possible from these problems—via Congress.

The federal government has a role in enforcing federal constitutional rights through preventing unlawful discrimination and ensuring equal protection. There have even been instances where that role has been effective. There’s a lot the federal government does wrong, but as the saying goes, even a blind squirrel finds a nut occasionally.

Maryland Representative Anthony Brown is introducing a bill aimed at fighting hate speech on campus. Here’s what he says it will do:

If passed, the bill would require universities and colleges to demonstrate they have programs and initiatives in place that clearly define to students “what is acceptable speech and what is not acceptable speech[.]”

Presumably the bill will use a more definite legal standard than acceptable; otherwise, this is doomed to fail the way college speech codes are routinely struck down when challenged. And it’s entirely unclear what the proposed enforcement mechanism is here. Rather, it sounds like the Representative wants colleges to lecture students about making other students feel good with bunny kisses and rainbow hugs. Good thing my tax dollars aren’t going for that:

For institutions that might lack the necessary resources to create these programs, the bill would set aside grant money to “take away any excuse,” Brown said.

Oh. But the Representative isn’t done:

The bill would also push universities to report hate crimes to local law enforcement. While existing laws require universities to report hate crime data, Brown said many schools don’t comply, which has led to underreporting.

Not a terrible idea. College campuses are designed for education (purportedly) rather than investigating and prosecuting crimes or constitutional violations. The Representative’s proposal is a bit lacking, but it invites more careful thought about what Congress can do to protect students on publicly-funded campuses.

If Congress determines that students on college campuses are being seriously harmed by hate speech, then Congress is within its traditional role of enforcing constitutional rights to step in. The recent evidence suggests that violent protests are doing just that. So there is a colorable argument for Congress to consider remedial measures.

Any proposal to combat hate speech is often met with the assertion that it’s protected speech under the First Amendment. Sometimes eggheads try to appeal to broader principles and ideas. Either argument is often followed by a response approximating “fuck that.” But if Congress, and public universities for that matter, are serious about regulating hate speech, then they need to take a different approach; courts will require a more thoughtful response.

The first step is acknowledging that there is nothing that can be legally done for students who feel micro-aggressed or triggered by contrary opinions. Take a mental toughness pill, buttercup. We’ve come to accept that provocative expressions of a sexual nature exist on a spectrum. At one end is obscenity, which is unprotected and therefore can be legally regulated. So, filming pornography still enjoys some First Amendment protection, even if prostitution doesn’t. Likewise, nude photography is generally protected, but distributing indecent materials to minors is not.

On balance, obscenity jurisprudence errs on the side of protecting borderline speech. So too could the same sort of framework be applied to hate speech. In this analogy, micro-aggressions would be analog pornographic but not obscene speech. In other words, it would enjoy First Amendment protection. The unprotected hate speech would arise from speech that carries with it an implicit threat.

The Supreme Court has already held that states can criminalize speech which intends to intimidate. In the Black case, the defendants were convicted under Virginia’s law criminalizing cross burning. The Court concluded that while cross burning has been used to intimidate, it isn’t per se intimidation. In fact, the Court drew an explicit comparison with its obscenity jurisprudence:

Thus, just as a State may regulate only that obscenity which is the most obscene due to its prurient content, so too may a State choose to prohibit only those forms of intimidation that are most likely to inspire fear of bodily harm.

This provides a starting place for Congress to push colleges to regulate hate speech. And from there Congress can colorably set the boundary of hate speech closer towards unprotected micro-aggressions. The first avenue is suggested by Justice Thomas’s dissent:

In our culture, cross burning has almost invariably meant lawlessness and understandably instills in its victims well-grounded fear of physical violence. * * *

Accordingly, this statute prohibits only conduct, not expression. And, just as one cannot burn down someone’s house to make a political point and then seek refuge in the First Amendment, those who hate cannot terrorize and intimidate to make their point. In light of my conclusion that the statute here addresses only conduct, there is no need to analyze it under any of our First Amendment tests.

Justice Thomas argues that the expressive purpose of burning a cross is irrelevant in light of the intent to terrorize and intimidate. No matter how much Congress wished to prohibit the publication of Nazi symbols in a textbook, it could not constitutionally. But it could encourage colleges to punish students who distribute, post, or display Nazi symbols anywhere on campus. Congress could find that certain symbols are inherently terroristic and demand students be punished not for any speech or thought, but for the action of publicly posting those symbols. After all, the display of Nazi imagery isn’t to merely challenge the status quo, it communicates an implicit threat to those who disagree with the group’s message.

In the cross-burning case, the Court concluded that the conduct had to inspire fear of bodily harm, but the rule could arguably be more expansive than the Court held there. In some sense, the requirement that it be bodily harm was dicta. There was no serious argument that cross burning didn’t convey with it a threat of serious physical harm. So, there was no analysis of whether that was mandatory for First Amendment purposes. And other aspects of the law suggest a finding of serious mental harm would be sufficient for First Amendment purposes.

On the criminal side, the United States has outlawed torture, which can be committed by intentionally causing severe mental pain or suffering. Other statutes prohibit harassment or stalking without requiring that the offender threaten physical harm. On the civil side, many states recognize the tort of intentional infliction of emotional distress. These all demonstrate that mental harm can be severe enough to allow for punishment and compensation. In turn, this suggests that this sort of harm would be sufficient for finding certain expressions of hate speech to be without First Amendment protection.

With these in mind, Congress can tackle hate speech by focusing on discriminatory conduct that causes serious harm to students, which in turn has caused mob violence and property damage. Once colleges have the legal cover to discipline students and report them to law enforcement, it could lead to a reduction in the violence and destruction on campus.