University limitation on intentional infliction of emotional distress: Constitutional remedy for hate speech
Douglas M. Fraleigh · Howard Journal of Communications · 1995
The problem of hate speech continues unabated on college and university campuses. Many educational institutions have responded to this problem by promulgating speech codes. When such codes have been challenged in court, they have been found unconstitutional. In an effort to get around constitutional barriers, many universities have based their speech codes on the fighting words exception to the First Amendment. This paper argues that speech codes that regulate fighting words have constitutional difficulties in the aftermath of R.A.V. v. City of St. Paul, Minnesota (the cross‐burning case). Furthermore, fighting words codes often fail to reach the most harmful hate speech, and the fighting words doctrine has long been abused by the police. As an alternative, colleges and universities should adopt speech codes based on the tort of intentional infliction of emotional distress. Such a code would not violate the Constitution, and it would ensure that the most repugnant instances of hate speech would be punished.