What Can (and Can’t) Universities Do about “Hate Speech” on Campus?

1. What Can (and Can’t) Universities Do about “Hate Speech” on Campus? Office of General Counsel November 2017

2. First Amendment “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” The Bill of Rights (the first ten amendments to the U.S. Constitution) is a list of specific limitations on governmental power. This includes the federal government and, generally, state governments through the Fourteenth Amendment. The First Amendment guarantees to individuals several related fundamental rights. The foundation for all of them is the freedom of speech.

3. The First Amendment’s Guarantee of Free Speech The right to freedom of speech allows individuals to express themselves without the government interfering – with certain very narrow exceptions. Public universities like Kansas State University are state governmental agencies, so the University is “the government” and is not allowed to interfere with individual expression, except for those very narrow exceptions.

4. Narrow Exceptions(whenever used to restrict or punish speech, these are heavily scrutinized by courts) • True threats (criminal threats directed at a person with the intent of placing the victim in fear of bodily harm or death) • Fighting words (personally abusive epithets in your face, tending to cause an immediate violent reaction) • Incitement to imminent lawless action (e.g., incitement to riot) • Criminal or illegal conduct (e.g.,vandalism, assault, riots, blackmail, defamation, perjury, child pornography, discrimination) • Seriously disruptive actions (e.g., occupying a building; shouting down a lecturer)

5. We CANNOT We CAN prohibit, punish and remedy discrimination (see next slide) prohibit and punish violence, vandalism, criminal threats and other criminal conduct impose neutral reasonable time, place and manner restrictions lead by example, talk about aspirational values, and encourage respectful engagement by all • censor, prohibit, “chill” or punish protected expression • even if it’s biased, rude, mean, hateful, offensive, bigoted, wrong, immoral, or deeply distressing • enact or enforce censorship policies • hate speech codes • overzealous anti-harassment policies reaching into protected speech • prohibiting “microaggressions”; requiring “trigger warnings” • “unofficial” bias investigations/warnings • designated “speech zones” • “disinviting” controversial speakers • compel speech through mandatory civility statements or codes

6. Discrimination • Very specifically defined. “Hate speech” is still protected expression unless it crosses this line (or meets another of the narrow exceptions). • Harassment is a type of discrimination – all of these elements must be met: • Conduct toward a person or persons based on race, color, ethnic or national origin, sex, sexual orientation, gender identity, religion, age, ancestry, disability, genetic information, military status, or veteran status that: • creates an intimidating, hostile, or offensive academic, work, or housing environment for someone • is severe or pervasive • unreasonably interferes with their education or work • under a reasonable person standard • and intent is required in an academic context

7. Examples of reasonable time, place, manner rulesoften seen on campuses(must be content- or viewpoint-neutral, narrowly drawn to meet an important governmental purpose, and applied consistently) • Chalking rules (e.g., must use washable chalk) • Posting rules (e.g., size of posters, places where posting is allowed) • Noise control (e.g., no loud bullhorn outside a classroom) • Litter control (e.g., designated literature distribution areas) • Traffic control (e.g., cannot block sidewalks, roadways)

8. Principles of Community • Aspirational statement of values and encouraged behavior • NOT enforceable – or could be used to punish anyone for anything they say (e.g.,on social media) that someone else finds disagreeable. Even if just held out as enforceable policy, would have an unconstitutional “chilling effect” on speech. • Different from enforceable rules such as anti-discrimination policy or student conduct code

9. Special Issues • Classroom speech and employees’ speech Somewhat different rules apply here. Professional and/or academic environments can be controlled to a greater degree, and some civility rules can be imposed. But in public areas, or in the personal spaces of students and employees, more unruly and robust expressive behavior must be allowed. • Academic freedom Related to but different from freedom of speech. Generally refers to the right to teach, write or speak in the academic context about controversial topics without forfeiting tenure. Universities also have academic freedom to determine curriculum, etc. But professional decorum and standards of excellence still apply, unlike outside that context, for example in the personal social media statements made by faculty and students.

10. Lessons from History • Many students are hearing about the First Amendment for the first time in the context of its protection of groups that speak hateful messages, or groups that are ultra-conservative or “alt-right.” • But it is not a shield meant for only those people or those views. This is not a “conservative” versus “liberal” issue. Free speech must be for everyone, or else whoever is in power gets to decide what is or isn’t allowed – and that is censorship. • There is an understandable instinct to protect people from words that hurt, insult, or offend them. So sometimes the first impulse is to suppress or censor those messages. But history has taught us that censorship is used mostly (almost always) to restrict and harm the most vulnerable, the most powerless, and the most marginalized in our society. • Students need to know about this history in order to understand the issue today on our campuses and in society at large.

11. Some U.S. History of Governmental Censorship • 1790’s – criticism of the government banned (Alien and Sedition Acts) • 1830’s – anti-slavery pamphlets outlawed; abolitionists murdered, jailed, literature destroyed • 1900-1920’s – labor rights leaders, suffragettes, anti-war protesters – banned or jailed; teaching evolution in schools banned • 1950’s and 1960’s – civil rights activists harassed, banned from public areas, prosecuted and jailed

12. How has the First Amendment Impacted that History? • Slavery abolitionists, suffragettes, labor rights leaders, civil rights leaders of the 1960’s and to the present day – all have been protected against governmental interference by courts applying the First Amendment to their cases and stopping the suppression of their speech • Those activists and movements could not have succeeded without the courts’ steadfast protection of their right to speak out, to challenge and offend widely-held views at the time

13. The Alternative: Censorship and Control of Ideas • Government enforces uniform beliefs, common religion, with no dissent or debate • Majority imposes its will on the rest of society • Other ideas are silenced by force • Whoever is in power at the moment gets to decide what to censor • Order and conformity are valued above free thought, diversity, progress • Exists today in many countries and regimes • Has been soundly rejected in our society and under our laws

14. If government can censor or silence someone who offends you today, it could be you who offends someone else and is silenced tomorrow. Present-day examples of protected speech that someone else might want to shut down if given the authority: • Personal social media postings • Black Lives Matter movement • Environmental protection protests • LGBTQ rights advocacy • Anti-government protests/criticisms against the government • Protests against a University policy/criticisms against administration

15. Why is Freedom of Speech Worth Protecting? • Value of a free and democratic society • Respect for individual thought and decision-making • Exposure of ideas – allows robust debate to test them • Desire for true diversity of beliefs • Necessary for education, knowledge and progress • Protects the most vulnerable in society from being silenced • Made civil rights movements and gains possible • Has been fought for and won through decades of struggle • Is rare in human history and in the world today • Is fragile – once erosion starts, it goes quickly

16. More Examples of What We CAN Do • state the University’s own values (but not require anyone to share a social or political orthodoxy or require them to promise to adhere to those values) • educate students about the University’s role and give them the framework to process events and messages • help them understand the limits on the University’s authority and how they benefit from limits on governmental power • teach students the historical and current value of free speech (even “hate speech”) to democracy and civil rights • educate students about their individual rights • empower students to use their voices and make their arguments

17. And We CAN • teach students the value of allowing others to speak – learning something new or exposing bad or false ideas • organize co-curricular activities about diversity, rights and responsibilities, and other topics of interest or concern • sensitize people to the unintended effects of words, without banning or punishing words • encourage open dialogue and interaction • celebrate diversity, including diversity of ideas

18. And We Also CAN • help students understand that while neither they nor the University has the power to prevent others’ messages, we all do have control over our own reactions – thoughts, feelings, and responses, including ignoring unworthy messages or engaging in dialogue and making counter-arguments • help the campus community understand why the University cannot and should not comment on every controversial speech act on or off campus • work as a community to figure out additional ways to weaken the power and minimize the impact of hurtful speech • speak out in our community about our own values (e.g., to condemn intolerance and bigotry)

19. When we hear a report of an incident of "hate speech" on campus or that might be related to campus, what should we do? • Don't rush to judgment. Wait until the facts are known. • Remain calm and help others do the same. • Remember that the University is the government. • Understand what is Constitutionally protected vs. unprotected speech. • Remember the difference between disagreeing with the content of the message and defending the right to say the message (if it's protected speech). See the University’s Statement on Free Speech and Expression. • Resist the temptation to demand a statement or action by the University for everything that everyone does that doesn’t align with our values. • Engage in the CAN DOs.