The Volokh Conspiracy

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Washington Post editorial calls for universities to 'make crystal clear that racist … speech [is] off-limits'


From the editorial:

Two-bit provocations such as hanging nooses on campuses play on emotions made raw in the wake of a presidential campaign that featured the vilification of minorities and barely veiled race-baiting. For university administrators, the challenge is to address that legitimate pain with sensitivity and make crystal clear that racist signs, symbols and speech are off-limits.

If the call was simply to punish threats of violence—racist or otherwise—I'd be all for that; and some of the time, nooses might be seen as threats. But the editorial isn't limited to that: It calls for administrators to punish "racist … speech" generally. (I assume the editorial must mean punishment, since it's hard to see what else would "make crystal clear" that the speech is "off-limits.") This is an editorial, the product of carefully considered labor on the part of a group of people, not an extemporaneous remark; when it says "racist … speech" (especially right after a sentence talking about political advocacy during a presidential campaign), I assume it means what it's saying.

And the editorial's proposal is an awful idea. At public universities, it would violate the First Amendment; at private universities, it would violate many of the universities' stated commitments to open debate, as well as basic principles of academic freedom.

1. The Supreme Court has made "crystal clear" that the government may not discriminate based on viewpoint, even in limited public fora such as university open spaces (or for that matter even university programs for funding student speech). Lower courts have consistently struck down campus speech codes aimed at supposedly bigoted speech. See, e.g., Dambrot v. Central Michigan Univ., 55 F.3d 1177, 1184-85 (6th Cir. 1995); DeJohn v. Temple Univ., 537 F.3d 301, 316-17, 320 (3d Cir. 2008); McCauley v. Univ. of V.I., 618 F.3d 232, 237-38, 250 (3d Cir. 2010); Iota Xi Chapter of Sigma Chi Fraternity v. George Mason Univ., 993 F.3d 386, 388-89, 391, 393 (4th Cir. 1993); College Republicans v. Reed, 523 F. Supp. 2d 1005, 1010-11, 1021 (N.D. Cal. 2007); Roberts v. Haragan, 346 F. Supp. 2d 853, 870-72 (N.D. Tex. 2004); Bair v. Shippensburg Univ., 280 F. Supp. 2d 357, 373 (M.D. Pa. 2003); Booher v. Bd. of Regents of N. Ky. Univ., 1998 U.S. Dist. LEXIS 11404, *28-*31 (E.D. Ky. 1998); UWM Post, Inc. v. Regents, 774 F. Supp. 1163, 1165-66, 1173, 1177 (E.D. Wis. 1991); Doe v. Univ. of Mich., 721 F. Supp. 852, 856, 864-66 (E.D. Mich. 1989). And in Christian Legal Society v. Martinez (2010), the Court gave students' freedom to "express any viewpoint they wish—including a discriminatory one" as an example of "this Court's tradition of protect[ing] the freedom to express the thought that we hate" (quotation marks omitted). There is no First Amendment exception for "hate speech" or "racist signs, symbols and speech."

2. And beyond their unconstitutionality, bans on "racist … speech" would, of course, extend far beyond just threats or even epithets. Many substantive claims may be easily labeled racist, in the sense of being generalizations that express a negative claim about a racial group, whether they are claims about blacks being criminals, whites being an oppressor race, Hispanic immigration being bad for the country (ethnicity is generally treated much like race in legal rules and university policies), and so on. And of course many other claims are routinely labeled racist as well, even if they focus not on race but on religion (condemnation of Islam is routinely labeled "racist"), immigration (calls to deport illegal aliens, or otherwise limit immigration, are routinely labeled "racist" even if they call for broad enforcement of the law), foreign nations (harsh condemnation of Israel is often labeled anti-Semitic, in the sense of being hostile to Jews as an ethnic group) and so on. Some such advocacy may be motivated by racial or ethnic hostility, while some might not be; but all such advocacy that runs against university administrators' political views would be deterred when "university administrators" "make crystal clear" that "racist … speech"—racist in the views of whatever disciplinary committee is making decisions—is "off-limits."

Plus of course bans on racist speech would hardly stay limited to speech that is hostile based on race, or on ethnicity. Naturally there would then be calls for similar bans on sexist speech, speech critical of particular religions, anti-gay speech, anti-transgender speech, and so on—and those would suppress an even broader range of debate.

The Post has long benefited from strong First Amendment protection and has long defended it. It's a shame that it is affirmatively calling for viewpoint-based speech suppression here.