Opponents of speech codes often argue that liberal academics use the codes to advance an agenda of political correctness. But Jon B. Gould's provocative book, based on an enormous amount of empirical evidence, reveals that the real reasons for their growth are to be found in the pragmatic, almost utilitarian, considerations of college administrators. Instituting hate speech policy, he shows, was often a symbolic response taken by university leaders to reassure campus constituencies of their commitment against intolerance. In an academic version of "keeping up with the Joneses," some schools created hate speech codes to remain within what they saw as the mainstream of higher education. Only a relatively small number of colleges crafted codes out of deep commitment to their merits.
Although college speech codes have been overturned by the courts, Speak No Evil argues that their rise has still had a profound influence on curtailing speech in other institutions such as the media and has also shaped mass opinion and common understandings of constitutional norms. Ultimately, Gould contends, this kind of informal law can have just as much power as the Constitution.
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About the Author
Jon B. Gould is assistant director of the Administration of Justice program and assistant professor in the Department of Public and International Affairs at George Mason University, where he is jointly appointed in law and women's studies.
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Speak No Evil
The Triumph of Hate Speech Regulation
By Jon B. Gould The University of Chicago Press
Copyright © 2005
The University of Chicago
All right reserved.
Chapter One Background and Chronology
On May 13, 1991, ABC's Nightline joined other national media in reporting that 125 colleges and universities had adopted so-called hate speech codes. Although the program failed to define speech codes, media reports suggest that the policies at issue sought to punish students (and in some cases faculty and staff) for uttering offensive comments about another's race or ethnicity. One of the most famous policies was adopted at the University of Michigan, which prohibited:
Verbal or physical behavior ... that stigmatizes or victimizes an individual on the basis of race, ethnicity, religion, sex, sexual orientation, creed, national origin, ancestry, age, marital status, handicap or Vietnam-era veteran status ... and that creates an intimidating, hostile or demeaning environment for educational pursuits, employment or participation in University sponsored extra-curricular activities.
WHAT IS HATE SPEECH?
It is interesting that Michigan's policy was dubbed a "hate speech code," for at no point did the policy mention the term "hate speech," nor does American law provide a ready definition. "Hate speech" is a creation of commentators and opponents of the speech policies, although the expression has become commonplace in everyday society. Its bounds are difficult to determine, for, like former Justice Potter Stewart's famous quotation about pornography ("I shall not today attempt further to define the material ... [b]ut I know it when I see it"), hate speech is fuzzy in the abstract but more apparent when confronted in person. The term "hate" is also a misnomer of sorts. I may hate my neighbor, and I may tell him so, but vitriol alone does not make an argument "hate speech." Hate speech is generally reserved for verbal attacks that target people on the basis of their immutable characteristics, or any form of "speech attacks based on race, ethnicity, religion, and sexual orientation or preference." It may be easiest to think of hate speech on a continuum. Certainly, the term includes racist, ethnic, religious, and sexist slurs, words like "spic," "kike," "cunt," or "towel head." It is difficult to imagine situations in which these terms are not meant as verbal attacks. Hate speech is closely connected to the Supreme Court's category of fighting words-those expressions that by their very nature are likely to bring people to blows-but the two are not completely analogous. Where a nasty insult, say like "motherfucker," might well precipitate a brawl, the jeer would not rise to the level of hate speech, which implies some sort of attack against an individual's immutable characteristics. Termed "race hate" in the 1920s and 1930s and "group libel" in the 1940s, "hate speech" or "racist speech" became the common terms in the 1980s as other characteristics, including sexual orientation, were included within its bounds.
That hate speech usually involves immutable characteristics is but part of the definition, for the term also connotes an attack against minority status. Although an African American might contemptuously call a white person a "dumb honky," there is debate about whether the epithet counts as hate speech. Certainly, the attack marks the target's race, but there can be little doubt that whites remain a majority in this country, whether by absolute numbers or by measures of political or social power. Absent some other threat, no reasonable recipient of the slur would believe himself in danger of marginalization or worse. Richard Delgado and Jean Stefancic, two of the most notable proponents of hate speech regulation, have gone so far as to claim that "hate speech directed against blacks and other minority groups has no ready analog in speech against whites."
Context matters in hate speech, not only the relative power differential between perpetrator and target but also the speaker's intent. Consider the terms "nigger" or "faggot." For years these have been among the worst slurs that whites could utter against blacks or heterosexuals could fling at gays and lesbians. But over the last fifteen years some minorities have begun to reappropriate the terms, stripping the words of their ugly and debilitating connotations. One now hears rap albums in which African Americans gamely call each other "nigger." The rap group N.W.A., a.k.a. Niggers With Attitude, is one of the most notable examples of African Americans redefining the "N word" as a badge of honor. In its 1991 single, "Niggaz 4 Life," N.W.A. sang:
Why Do I Call Myself a Nigger, You Ask Me? I Guess It's the Way Shit Has to Be Back When I Was Young Gettin A Job Was Murder Fuck Flippin Burgers 'Cause I Deserve A Nine-to-Five I Can Be Proud Of That I Can Speak Loud Of
So too some gays have begun to use "faggot" when talking about one another. Dan Savage, a sex columnist for many urban, alternative newspapers, explained his use of the slur when he sat for a 1995 interview. Said Savage, who is gay:
When [my] column started in 1990 or 1991-when we first started talking about [faggot]-that was during ACT UP and Queer Nation's Ascendancy. And that's when the whole reclamation movement started taking back hate words.... Faggot is what my gay friends call each other: That's how we talk to each other. And inviting ... people to use that term when they address me sort of strips the word of its hate, or demonstrates a way it can be stripped of its hate.
Savage is more accepting of "reclaimed" slurs than are others, for whites and heterosexuals often court trouble if they try to use the same terms in conversation with blacks or homosexuals. There the power differential between social groups-the fact that whites and straights are in the majority and blacks and gays are not-embeds the speaker's words with a different and disturbing message. Explains Savage, "some gay people get very upset when they see ... straight people using [faggot]. It's okay for us to use it amongst ourselves, but it's not okay for me to give permission for straight people to call me that word." Even well-meaning people have found this out the hard way. At Central Michigan University a white basketball coach uttered the word "nigger" when conducting a pep talk for his team, the majority of whom were black. According to the coach, he used the term like his players did, in a "positive and reinforcing" way "to connote someone who is 'fearless, mentally strong, and tough.'" Although the players generally failed to take offense, news of the incident soon spread through the campus community. A student demonstration was staged, unfavorable news stories were written about the university, and the coach soon found himself out of a job.
There are some who find this "double-standard" unfair, that minority groups can use certain terms among themselves without criticism but that if "outsiders" seek to apply the same words for similar purposes they are assailed. 14 However, the key elements at work here are the historic power differences between social groups and the fact that certain words are associated with the exclusion of minority groups by others. The dynamic is more prevalent than some might initially realize. Jews freely tell Jewish jokes about themselves, but if a Christian is caught doing the same the prat falls flat. The Irish can spin yarns about the drinking capers of their countrymen, but a Brit who attempts to tell the same joke faces disapproving glares, at best. Years ago the television show Seinfeld satirized this dynamic when its character Jerry, a Jewish comedian, took umbrage at his dentist who converted to Judaism and immediately began telling Jewish jokes. Visiting a priest to complain about the dentist's sham conversion, Jerry told the priest that he believed the dentist converted "just for the jokes." "And this offends you as Jewish person?" the priest asked Jerry. "No," said Jerry, "as a comedian."
Of course, there is nothing funny about hate speech, although it can be difficult at times to disentangle slurs from seriously intended conversation. Just as context matters, so does the standard for measuring offense. Should hate speech be judged by the intent of the speaker or the feelings of the recipient? In the case of Doe v. University of Michigan, the plaintiff feared that he might be punished under a hate speech code for suggesting that women are biologically programmed to be caregivers. To some, this view would smack of sexism, the speaker insinuating that women should remain at home tending to babies and baking cookies. Yet the speaker might claim a legitimate interest in examining the biological basis of gender definition, a point of academic debate worthy of consideration. Whose view should win here? What about the case where a speaker questions the determinants of sexual orientation, claiming that homosexuality is an "ungodly lifestyle" because "people choose to be gay." This message would undoubtedly be an affront to the many gays and lesbians who only recently have felt free to "come out" without serious social stigma. But should the speaker be punished for raising an idea, even one that is offensive to its target?
These are central questions in the hate speech debate, ones that do not have easy answers. Among those who have written on hate speech, the prevailing view is that hate speech turns on the intent of the speaker. Where an individual seeks a legitimate debate, even on controversial questions, his message should not count as hate speech. But when the purpose is to offend, to silence, to marginalize, then speech becomes hateful. Admittedly, these lines are malleable, but the principle is worth considering. When someone criticizes what she sees as a double standard in the use of the word "nigger," her purpose presumably is to question the differential use of a historical epithet, not to denigrate a minority group. Even if the audience thinks her insensitive or unreasonably provocative, her message is not itself intended as an attack. By contrast, the person who decries "the niggers on campus," arguing they should "go back to Africa," is clearly attacking African Americans on the basis of their race. Whether, in fact, this speaker should be permitted to make his remarks unchecked is another question-and one that forms the heart of the hate speech debate in America-but it is impossible to ignore his prejudice and the despicable meaning of his words. His speech is hateful and directed against a group because of its race.
The more difficult cases are those in which a speaker makes indirect, presumptive, and prejudicial comments about a group. In the summer of 2002 the famous Hollywood agent-turned-studio-head Michael Ovitz gave an interview in which he attributed his fall from grace to the "gay mafia" in Hollywood. Did Ovitz intend to impugn a group on the basis of its immutable characteristics? Perhaps, if as most experts now recognize, homosexuality is biologically determined. Ovitz clearly saw a conspiracy among gay studio executives to sink his career, but was this an attack on their sexual orientation or Ovitz's uncovering of a cabal that was linked by sexual orientation? Another way to ask this question is how would we react if the criticism had been of "Jewish bankers" who controlled Hollywood? Most studio veterans acknowledge that Hollywood employs a larger percentage of Jews and gays than does American industry as a whole, but what is the point of highlighting a target's religious or sexual identity in criticizing certain individuals? Imbedded in the message is a reflection of prejudice, an attempt to denigrate a person's actions because of his membership in a historically marginalized group. Should it matter that Ovitz's comments were quoted in a magazine, not spoken directly to his enemies? Even the proponents of hate speech regulation differ. Some see a threat whenever prejudice is expounded; others would limit sanctions to personally delivered vitriol. Richard Delgado has himself changed his approach over time. Where Delgado once attacked general messages of racial inferiority, his more recent proposals call for tort penalties when a speaker directly addresses his target.
Were we in Canada or Europe, Ovitz's comment might implicate the criminal law, since the United States is virtually alone among Western democracies in refusing to sanction hate speech per se under the law. Both the International Convention on the Elimination of All Forms of Racial Discrimination and the International Covenant on Civil and Political Rights prohibit the advocacy of hatred and link it to discrimination. German law punishes expression that incites racial hatred, and the Canadian Supreme Court has upheld prohibitions on hate speech directed against groups who have faced "historical and social prejudice." To be sure, Ovitz was hardly attempting to incite a mob; rather, he sought to explain away his own poor performance. But the irony of America's attention to hate speech is that there is no comparable legal standard against which to measure the misdeed. By and large, we address the subject through academic writings and social commentary, for there are neither criminal nor civil statutes that define the terms of hate speech. Certain states now punish hate crimes, but for most of America's history both law and society tolerated conduct that is only now being labeled by observers as hate speech.
HATE SPEECH AND THE COURTS
In truth, hate speech has been with us for years, almost from the moment that the first "others" got off the boat to a chilly reception. For centuries African Americans have endured vindictive slurs-and much worse-from white Americans, and Jews too have suffered through several periods in which anti-Semitism was not only accepted but also fashionable. Anti-Catholic prejudice followed the arrival of Catholic immigrants in the mid-1800s, and a general anti-immigrant fervor took over the nation in the late nineteenth and early twentieth centuries. Few, however, would ever have thought to label such treatment as "hate speech" at the time. Prejudice was openly spoken, especially among so-called polite society, and the courts were rarely asked to intervene because the lines had already been drawn in civil society.
For that matter, free speech and open discourse are privileged rights under the First Amendment. According to the courts the First Amendment applies to "expression," a term that is generally considered to mean speech. Certainly, some actions can be expressive, including the burning of the flag, a draft card, or the donning of offensive apparel, but for the most part the courts have distinguished between speech, which is expressive and thus constitutionally protected, and actions, which are neither.
Historically, there have been only five bases under which the courts are willing to restrict speech: obscenity; libel; time, place, and manner regulations; the clear and present danger test; and fighting words. Obscenity law probably traces back to our Puritan past, reflecting the notion that some expression is so carnal and salacious that it may be regulated. Libel is a branch of defamation law, allowing individuals to sue those who knowingly malign their reputations. Time, place, and manner restrictions are just as they sound, permitting public bodies to place reasonable limits on the way in which expression is delivered, rather than its content. A protestor may not blare his message outside your bedroom window at two in the morning, although he is free to express his views at a more reasonable time and place. Similarly, under the clear and present danger test, courts have been willing to punish expression that imminently incites others to criminal or dangerous activity. The classic example is yelling "fire" in a crowded theater, where the speaker's interest in expression is overwhelmed by the threat of people being trampled on the way out. Courts interpret this test very narrowly, with only the most egregious speech qualifying as dangerous. Finally, fighting words statutes are said to protect the public peace. First recognized by the Supreme Court in the 1942 case of Chaplinsky v. New Hampshire, the term was initially defined as words that "by their very utterance inflict injury" and "tend to incite an immediate breach of the peace." However, over time this definition has been winnowed so that by the mid-1960s it included only the latter half-speech that incites an immediate breach of the peace.
Excerpted from Speak No Evil by Jon B. Gould Copyright © 2005 by The University of Chicago. Excerpted by permission.
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Table of Contents
1. Background and Chronology
2. Theoretical Implications
3. The Rise of Hate Speech Codes
4. The Courts Act
5. While They Slept
6. The Triumph of Hate Speech Regulation
Appendix: Methodology and Data Sources