Hate Speech at Public Universities: The Search for an Enforcement Model
Alan Edward Brownstein · SSRN Electronic Journal · 1991
Two kinds of challenges may be raised against the regulation of hate speech on college campuses. Hate speech policies may be attacked directly as a substantive abridgement of the first amendment rights of students and professors. Alternatively, restrictions on some manifestations of hate speech may be accepted in theory, but specific regulations are criticized on the grounds that they are vague and overbroad. Instead of precisely delineating the expression that may be appropriately and constitutionally limited, particular regulations may chill protected speech and provide too much unfettered discretion to an administrative staff. I have previously written at some length on the question of whether hate speech may be constitutionally prohibited in public universities. In my judgment, there are various situations in which hate speech may be restricted without violating the first amendment. This brief commentary will focus on the separate question of how a hate speech policy can be promulgated and enforced consistently with constitutional guarantees and the values of academic freedom. For purposes of this discussion, however, it is necessary for readers who doubt the legitimacy of any restrictions on hate speech to assume arguendo that there are at least some instances in which hate speech may be prohibited in a university environment.