Law enforcement, scholars discuss legal definition of hate speech in American constitutional jurisprudence with regard to college campuses
“Hate Speech, Free Speech, More Speech or Less Speech: The Quad as Free Expression Zone or Safe Space?” took place on May 1 in the Multipurpose Room of the Student Community Center. The event, organized by Interim Chancellor Ralph J. Hexter, was in collaboration with UC Davis School of Law and moderated by Madhavi Sunder, the senior associate dean and a professor in the School of Law.
Panelists included Alan E. Brownstein, an emeritus professor at UC Davis School of Law with a focus on constitutional and church and state law; Carlton F.W. Larson, a scholar of American constitutional law and Anglo-American history; and California Highway Patrol safety sergeant Steven White, assigned to the state capitol protection section. Among the attendants was Interim Provost and Executive Vice Chancellor Ken Burtis.
Sunder set the theme for the discussion by expressing how public university campuses, particularly UC campuses, became “focal points for public activism” against the Vietnam War and gradually made their way to becoming “a sight for contested speech in the culture wars.”
In light of the UC Berkeley protests against the presence of Ann Coulter and resistance at both UC Davis and UC Berkeley against former Breitbart editor Milo Yiannopoulos, administration expressed that an open discussion regarding hate speech was especially relevant.
Notable cases that questioned the presence of free speech include a letter to the editor written by Jeff Weiner, a UC Davis professor of comparative literature. Weiner’s letter addressed the cancellation of Yiannopoulos’ talk by stating that “free speech is dead on college campuses” and went on to express that “the protesters think they triumphed, but they only succeeded in taking us one step closer to the death of the university.”
Additionally, the unanimously passed ASUCD Senate Resolution #5 demonstrated ASUCD’s resistance to associate with the presence of Yiannopolous at UC Davis. The Senate Resolution quotes the ASUCD Student Bill of Rights, stating that students “have the right to be free from discrimination and harassment on the basis of race, gender, sex, ethnicity, religion, national origin, disability, sexual orientation, status within or outside the university, or political belief in all activities sponsored or conducted by the University, its affiliates, ASUCD, or campus student groups as addressed in the UC Davis Principles of Community.” The bill also stated that the Davis College Republicans inviting Milo Yiannopoulos “has brought about the marginalization and harassment of minority groups, such as transgender and minority students, on other university campuses[.]”
The event led off with Sunder discussing what the future direction of free speech will be in the face of violence occurring on university campuses, places that have been historically dedicated to open dialogue and debate.
“How does the univeristy balance its commitment to guarantee the rights and safety of all students and in particular its principle commitment to [the diversity of] students in an increasingly inclusive university,” Sunder said. “What is the role of law enforcement in securing free speech?”
Larson emphasized that the United States is “distinct” in that it protects free speech more than any other western country. He drew analogies between educational institutions restricting speakers’ entrance to private property owners barring visitors from entering their property.
It was then discussed that, while it is justifiable for people who own property to impede someone from their home, if that person is going on a political tirade that is unaligned with the property owner’s values, that right does not apply to public educational institutions.
Larson went on to quote the Supreme Court ruling in the case of Tinker v Moines about the freedom of expression of student opinions on college campuses.
“It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate […] during authorized hours he may express his opinions, even on controversial subjects […] if he does so without ‘materially and substantially interfer[ing] with the requirements of appropriate discipline in the operation of the school’ and without colliding with the rights of others,” reads the ruling Larson mentioned.
Brownstein addressed the extent to which the First Amendment protects various categories of speech and distinguished between speech and conduct, noting that speech is protected by the First Amendment while conduct is not.
“Hate speech is simply another kind of speech that is protected as speech […] [it] has no legal significance,” Brownstein said. “Obstructing access to a room or activity is not protected speech, it’s prescribable conduct.”
Next, Brownstein recounted a case of abortion clinics that were subject to protests by individuals opposed to abortion who expressed their opinions by denying women and staff access to the clinic buildings. In this case, Congress passed the Freedom of Access to Clinic Entrances Act, which challenged the First Amendment by conveying that the protestors were not engaging in speech but rather performing conduct, which can be prohibited by law.
It was clarified that these laws could not be implemented on the grounds of respecting an individual’s sensibilities and sensitivity, nor on the basis of having caused emotional distress, regardless of how vile the relayed messages were. Brownstein listed several cases during which the Supreme Court ruled in favor of the side demonstrating speech. Cases included Nazi supporters marching through a town with a high population of Holocaust survivors and Westboro Baptist Church members displaying signs with “thank God your son is dead” at the funeral of Iraq veterans on the grounds that “God is punishing the U.S. because we are too protective of homosexuality.”
White echoed the same notions as Brownstein with regard to protection of speech. He mentioned that reservation permits for the state capitol are given regardless of the message that is being relayed to the public. The safety of citizens is their primary concern.
Larson added that prohibiting the speech of the invited individual is not a disadvantage to the group that was excluded, but rather “the harm is to everybody else that was deprived of the normal functioning marketplace of ideas that you would expect to have.”
Written by: Kimia Akbari — email@example.com