Debate: Just Say No To Legislating Hate Speech on Campus

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

Before taking the law school plunge, I briefly toyed with the notion of becoming a psychologist. An elective class in sociology at the University of Tennessee introduced me to an atheist African-American professor who openly mocked me in class, claimed the attacks on September 11, 2001 were a “white man’s conspiracy,” and proudly professed a love of Fidel Castro.

At the course’s conclusion, this professor sent me an email with my grade and expressed her deep concern that I thought my classmates and the course material were “a load of crap.”

If the lunatics running the asylum students and faculty of today had their way, that professor could be punished for “hate speech.” We must stand boldly against people like Maryland’s Representative Anthony Brown and firmly say “Fuck you, we stand for the free exchange of all ideas.” Congress has no business regulating speech on college campuses, much less crafting bills to punish “hate speech.”*

Legislating “hate speech” on college campuses carries a hefty burden. Any bill someone like Anthony Brown would propose must serve a compelling government interest, be as narrowly tailored as possible to serve that interest, and be the least restrictive means of achieving that interest.** It’s hard to see what sort of compelling government interest is at stake in defining and punishing “hate speech” on college campuses. No one yet has provided a clear-cut definition of “hate speech” or justified why the government should stick their nose in the issue.

Fortunately for Representative Brown’s constituency, the definition problem is easy to solve.

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.

Grant money is nice, but it doesn’t excuse the fact no less than the United States Supreme Court held the government has no business deciding what is and isn’t offensive.  Shifting the burden to college campuses creates a bizarre scenario where defending one’s right to be on campus is an actionable offense and singing a raucous football cheer song on another is perfectly acceptable. Without a uniform standard, the students of tomorrow will have no idea how to protect themselves from disciplinary hearings over hurtful words.

If our nation’s higher-education institutions band together and figure out a uniform standard of “hate speech,” what punitive measures would follow if a line was crossed? Is a student subject to diversity re-training, or do they face expulsion? No matter the punishment, it will not be the least restrictive means of combating “hate speech” on college campuses. Absent a slap on the wrist, no punishment would be facially constitutional.

Worse yet, crafting legislation intending to define and punish hate speech on college campuses doesn’t make the hatred go away. Rather, it sends the ideas it intends to punish away from the marketplace of ideas and into what is best termed the “melee of venom.” Silencing the voices of those you find offensive today just lets them fester and grow with grumbles and clenched teeth until the venom explodes into a mass of white polo-shirt wearing guys who never got laid marching with tiki torches chanting “blood and soil.”

Here’s a novel idea for Representative Anthony Brown: If you want to really promote diversity and inclusion, and make campuses safer for all, go back to Washington and craft legislation that protects the rights of those who speak on college campuses freely and equally, no matter how virtuous or scurrilous the speech may be. Let the woke students combat their fellow classmates who “don’t see race” with better ideas and better words, not with bike locks or pepper spray.

And that hateful stuff, the nasty Naxos chants and swastika-clad crowd? They get to speak too, no matter how much we hate them. That way the universities can see who’s out there spreading the nasty stuff, identify them, and take steps the university deems appropriate. Further, their classmates can combat their idiocy with better, more informed views. That’s the point of the marketplace of ideas.

I still think fondly of the sociology professor, wherever she is. It was in her class that I learned to speak up and fight for my beliefs. During her lectures I took notes on issues she’d bring up that didn’t seem right, fact check them, and come back to counter what was incorrect or inaccurate. Our exchanges were the stuff college should prepare a person for: those ideologies and institutions that you hold dearest are going to be challenged, and you’re better served when you know how to fight for them.

Taking that from college students by labeling words or actions “hate speech” does them no justice. In fact, it fails them in the worst way and at the worst time of their lives. We must restore this vital facet of education to college campuses everywhere by standing strongly against “hate speech” legislation aimed at college campuses.

*I put quotation marks around “hate speech” because there’s no legal definition for it.

** Lawyer-types call this a “strict scrutiny” test.

28 comments on “Debate: Just Say No To Legislating Hate Speech on Campus

  1. B. McLeod

    Often, the real goal of legislators is simply cheap posturing, and reading a few cases to see if their bills might actually pass constitutional muster is no part of the equation.

    1. CLS

      And yet legislators will craft stupid legislation, because that’s what they do. The will of the constituency (or the rights of the people) be damned.

  2. PseudonymousKid

    Dear Chris,

    People are morons and think and do stupid, evil things. Can I hang an approximation of a black body from a tree on the quad or directly across from a black fraternity or sorority for shits and giggles? What if I do it outside of the home of a football player accused of domestic violence? Thank god we live in the land of the free and the marketplace for such wonderful ideas.

    You can tell me I’m dumb, but now I’m more motivated than before and just keep doing it. Students are getting fearful and angry, which fuels my motivation even more. The “bodies” keep getting more explicit and graphic. They are disturbing and most people can’t even stomach looking at them. When is enough enough? Can I keep tormenting people under the guise of free expression? I won’t tell you I’m just doing it to be an ass of course, I’ll tell you I’m exercising my right to express myself that you detailed. Everyone should know better than to take these art displays literally, I’d say. You want to take me on in a boring burden-shifting analysis to prove discrimination is my actual motivation? Good luck.

    Hate speech exists, and neither “don’t ask, don’t tell” or “I know it when I see it” are gonna cut it. That it’s difficult to define and there are dangers in the exercise doesn’t mean we shouldn’t try unless you really want to see and hear and experience some horrific things. Which, I suppose, you might.

    Best,
    PK

    1. SHG

      So many questions. So much begging. Please don’t beg, and especially don’t beg the question. It’s unbecoming.

      There are many things we can say and express that are distasteful to some, but rather than emit unpleasant emotions, perhaps you can come up with a principled way to distinguish them for America. How about “whatever SHG decides is good speech is protected and bad speech is not.” Work for you? Everybody?

      1. PseudonymousKid

        You can decide. That’s as principled as any other solution.

        Limit hate speech laws to cases of actual, provable intent to intimidate or cause harm. Prosecutions under the law should be few and far between, because of the practical issues of proving what motivated the person without him telling you. There’s going to be a whole bunch of activity that’s shitty that doesn’t get prosecuted, but Chris is ultimately correct. Short of real world consequences or the threat of real world consequences, we ought not limit speech of any kind. The principle being that some chafing is necessary to ensure we aren’t being totalitarian, but it should stop at chafing and go no further.

        How’s them for some feelz?

        1. SHG

          Intent is easy, which is why the jails are full of people with that nasty mens rea. A person intends the natural consequences of his actions. It’s a lawyer thing. Didn’t you ever wonder why mom always called you her “lil’ fella”? She changed your diapers, you know.

          1. PseudonymousKid

            I was stuck thinking about proving a discriminatory motivation and conflated that with intent in your world. Oops. You’re right.

        2. wilbur

          “Limit hate speech laws to cases of actual, provable intent to intimidate or cause harm. ” Friend, you’re just kicking the can down the road.

          How are you going to define “intimidate or cause harm”? Or “chafing”? I’ve dealt with car salesman who were not above trying to intimidate and/or cause me economic harm. Or football coaches who would kick you in the ass after they verbally intimidated you. Let’s not even get into lawyers.

          Life is not always pleasant. If making someone’s life less than pleasant is going to be a crime, we better build a lot more jails.

          1. PseudonymousKid

            That’s the distinction I’m trying to make without moving too far into a simple value call. Yes, the difference between chafing that we should endure and intimidation that we shouldn’t depends on a million variables and loads of context. That’s the judgment call society must make. Get a good lawyer and a PR firm.

            Making violence or the threat thereof the dividing line separates engagement in the marketplace of ideas from thuggery. It isn’t about pleasantness. It’s more about the idea a person shouldn’t go through life fearful of bodily harm for disagreeing with someone else. That’s not how we settle disagreements.

            1. SHG

              “Fearful” is what the other guy feels. How does the speaker know what strikes fear in another? In the olden days, we tended not to be particularly fearful of speech, but today, speech seems to be far more fear-invoking. Where will it go tomorrow? Or does any “I felt unsafe” become the line others have illegally crossed?

            2. PseudonymousKid

              Sure, fears can change over time. What doesn’t is the necessity to remove violence from public discourse. We can have plenty of follow up chats on what violence is and when it is acceptable or justified, or what qualifies as discourse. We can talk about our tastes all day, but it won’t be fruitful to argue over them. De gustibus.

              To allow even a little violence is to destroy the whole concept of free speech as we understand it. Some speech is culled in the process, but those casualties are acceptable. That’s as surgical as we can get without overturning the whole cart. So announces PK, ruler of the world.

  3. Andy

    I’d rather it be whatever Andy decides is good speech is protected and bad speech is not.

    Also, all humans are nuts. Some humans are more nuts than others.

  4. CLS

    Dear Kid…can I call you Kid? Well, I’m gonna.

    SHG’s done all the heavy lifting for me while I was away saving puppies and kitties, so I’ve only the following to offer:

    I’m sorry you think so little of the students in the black fraternity or sorority who have to look at your hypothetical effigy of a black body. Your approach in that situation equates each and every young black man or young black woman as a small child, incapable of shrugging off the idiotic stunt and going on about their everyday lives.

    The same goes for the football player accused of domestic violence. You think so little of his ability to weather criticism or stupidity that we must sweep in with legislation to stamp out this thing you call “hate speech.”

    And it’s a real thing, you say. The problem comes with the definition, and you’ve now hopefully seen the light as the situation parsed out over the day. Finding a point where words equate to violence just doesn’t happen.

    If you really want to see what happens when we start trying to legislate hate speech, well, Kid, another fella did the heavy lifting for you. I know links aren’t permitted, but search for David Meyer-Lindenberg’s post on this site called “Hate Speech: Never Go Full Europe.” I hear that guy’s going places.

    Best,
    –CLS

    1. John Barleycorn

      Let me help you out here Chris seeing as how you have unintentionally sandwiched the Insane Clown Posse in-between yourself and the Kid.

    2. PseudonymousKid

      CLS,

      Thanks for the response. You can call me anything you’d like. I apologize for assuming familiarity.

      Some people are incapable of shrugging things off so easily. Should we damn them for their weakness? Maybe we weren’t created equal after all. Some people were meant to be pawns. Fuck ’em and whatever they are afraid to say. Only the strong survive.

      Don’t be a jerk and make threats of violence. The idea touches upon precious speech but also ensures it can exist at all. That’s the position I’ve retreated to. “No genocide” isn’t controversial, but some speech that isn’t so overt will get caught up too. Oh well. That’s the marketplace at work, determining value. Some speech is even less than worthless.

      I’m orthogonal as hell and not even talking about hate speech anymore. It doesn’t matter who the fuck you are, but what you say. If it’s I want to kill or harm so and so, get fucked. It’s not justifiable. Draw the line at threats of physical harm and leave it alone.

      Yours Truly,
      Kid

      1. CLS

        Dear Orthagonal:

        If you’re not talking about hate speech anymore, then it stands to reason you have nothing further to add to this conversation.

        Best,
        –CLS

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