U.S. Legal Context
“The First Amendment of the United States Constitution permits expression of an immense range of diverse perspectives, including those that may be unreasonable, disrespectful, bigoted, and/or potentially harmful. It protects vigorous criticism and peaceful protest of such views, as well, which can contribute significantly to their social marginalization. Public officials are legally prohibited from discriminating against individuals or groups based on their beliefs or coercively suppressing speech on the basis of its political or religious content.
Short of granting blanket tolerance toward all forms of speech, however, the Constitution requires that citizens refrain from engaging in forms of expression that directly and explicitly incite violence, disorder, or lawlessness (e.g., Sunstein, 1995). For example, public demonstrations that threaten to disturb the peace can be declared unlawful gatherings and dispersed by a democratically sanctioned, lawful use of police force. It is also illegal for individuals ‘to make true threats and incite imminent crimes against anyone… for any reason’ or to use ‘fighting words’, which include ‘face-to-face personal insults addressed to a specific person, of the sort that are likely to start an immediate fight’ (Volokh, 2015).
There is, however, ‘no ‘hate speech’ exception to the First Amendment’ (Volokh, 2015). We understand hate speech to include forms of ‘expression whose dominant purpose is to insult or denigrate members of a social group identified by such characteristics as race, ethnicity, religion, or sexual orientation, or to arouse enmity or hostility against them’ (Sumner, 2009, pp. 208–9). Within this particular legal context, calls for more powerful institutional responses to potentially harmful speech… have prompted some institutions to implement speech codes, bias response systems, unconscious bias training, and seminars designed to combat insensitive or insulting forms of expression that radical scholars identify as ‘microaggressions’ (FIRE, 2017; Snyder & Khalid, 2016; UCLA, 2014).
Advocates of free speech on both the Right and the Left have raised concerns about these initiatives, which some critics consider little more than ‘a politically correct effort to prevent anyone from voicing views that do not fall in line with a narrow ‘social justice’ ideology’ (Ben-Porath, 2017, p. 11)… Critics of these efforts have argued that a substantial portion of reported ‘bias’ or ‘hate’ incidents on campus are more accurately described as expressions of mild disrespect, insensitivity, or mere political conflict (FIRE, 2017). Some have gone even further to challenge the narrative of ubiquitous hate speech on campus. For example, Wilfred Reilly (2019), an African American scholar of race relations, concludes from an extensive study of over one hundred high profile cases that, rather than facing an increase in the frequency or severity of hate incidents, American colleges and universities are experiencing an epidemic of hate crime hoaxes…” (Bindewald & Hawkins 2020, 3-4).
“…Private institutions are not bound by the same First Amendment constraints as public institutions, and they can legally promote sectarian views and limit or restrict speech inconsistent with their guiding mission and values (FIRE, 2015)” (Bindewald & Hawkins 2020, 9).
References
Ben-Porath, S. (2017). Free speech on campus. University of Pennsylvania Press.
Bindewald, B. & Hawkins, J. (2020) Speech and inquiry in public institutions of higher education: Navigating ethical and epistemological challenges, Educational Philosophy and Theory, DOI: 10.1080/00131857.2020.1773794
Foundation for Individual Rights in Education (FIRE) (2017). Bias response team report 2017. https://www.thefire.org/first-amendment-library/special-collections/fire-guides/bias-response-team-report-2017/
Foundation for Individual Rights in Education (FIRE) (2015). FIRE’s Guide to first-year orientation and thought reform on campus. https://d28htnjz2elwuj.cloudfront.net/wp-content/uploads/2015/07/29150208/FIRE-Guide-Orientationand-Thought-Reform.pdf
Reilly, W. (2019). Hate crime hoax: How the left is selling a fake race war. Regnery Publishing.
Snyder & Khalid, (2016). The rise of bias response teams on campus. New Republic. https://newrepublic.com/article/132195/rise-bias-response-teams-campus
Sumner, L. (2009). Incitement and the regulation of hate speech in Canada. In I. Hare & J. Weinstein (Eds.), Extreme speech and democracy (pp. 204–220). Oxford University Press.
Sunstein, C. (1995). Is violent speech a right? Advocacy of illegal violence to kill people is not necessarily constitutionally protected speech. The American Prospect, Summer 1995. http://prospect.org/article/violent-speech-right
UCLA (2014). Tool: Recognizing microaggressions and the messages they send. Diversity in the Classroom, UCLA Diversity & Faculty Development. https://academicaffairs.ucsc.edu/events/documents/Microaggressions_Examples_Arial_2014_11_12.pdf
Volokh, E. (2015, May 7). No, there’s no ‘hate speech’ exception to the First Amendment. The Washington Post.
Short of granting blanket tolerance toward all forms of speech, however, the Constitution requires that citizens refrain from engaging in forms of expression that directly and explicitly incite violence, disorder, or lawlessness (e.g., Sunstein, 1995). For example, public demonstrations that threaten to disturb the peace can be declared unlawful gatherings and dispersed by a democratically sanctioned, lawful use of police force. It is also illegal for individuals ‘to make true threats and incite imminent crimes against anyone… for any reason’ or to use ‘fighting words’, which include ‘face-to-face personal insults addressed to a specific person, of the sort that are likely to start an immediate fight’ (Volokh, 2015).
There is, however, ‘no ‘hate speech’ exception to the First Amendment’ (Volokh, 2015). We understand hate speech to include forms of ‘expression whose dominant purpose is to insult or denigrate members of a social group identified by such characteristics as race, ethnicity, religion, or sexual orientation, or to arouse enmity or hostility against them’ (Sumner, 2009, pp. 208–9). Within this particular legal context, calls for more powerful institutional responses to potentially harmful speech… have prompted some institutions to implement speech codes, bias response systems, unconscious bias training, and seminars designed to combat insensitive or insulting forms of expression that radical scholars identify as ‘microaggressions’ (FIRE, 2017; Snyder & Khalid, 2016; UCLA, 2014).
Advocates of free speech on both the Right and the Left have raised concerns about these initiatives, which some critics consider little more than ‘a politically correct effort to prevent anyone from voicing views that do not fall in line with a narrow ‘social justice’ ideology’ (Ben-Porath, 2017, p. 11)… Critics of these efforts have argued that a substantial portion of reported ‘bias’ or ‘hate’ incidents on campus are more accurately described as expressions of mild disrespect, insensitivity, or mere political conflict (FIRE, 2017). Some have gone even further to challenge the narrative of ubiquitous hate speech on campus. For example, Wilfred Reilly (2019), an African American scholar of race relations, concludes from an extensive study of over one hundred high profile cases that, rather than facing an increase in the frequency or severity of hate incidents, American colleges and universities are experiencing an epidemic of hate crime hoaxes…” (Bindewald & Hawkins 2020, 3-4).
“…Private institutions are not bound by the same First Amendment constraints as public institutions, and they can legally promote sectarian views and limit or restrict speech inconsistent with their guiding mission and values (FIRE, 2015)” (Bindewald & Hawkins 2020, 9).
References
Ben-Porath, S. (2017). Free speech on campus. University of Pennsylvania Press.
Bindewald, B. & Hawkins, J. (2020) Speech and inquiry in public institutions of higher education: Navigating ethical and epistemological challenges, Educational Philosophy and Theory, DOI: 10.1080/00131857.2020.1773794
Foundation for Individual Rights in Education (FIRE) (2017). Bias response team report 2017. https://www.thefire.org/first-amendment-library/special-collections/fire-guides/bias-response-team-report-2017/
Foundation for Individual Rights in Education (FIRE) (2015). FIRE’s Guide to first-year orientation and thought reform on campus. https://d28htnjz2elwuj.cloudfront.net/wp-content/uploads/2015/07/29150208/FIRE-Guide-Orientationand-Thought-Reform.pdf
Reilly, W. (2019). Hate crime hoax: How the left is selling a fake race war. Regnery Publishing.
Snyder & Khalid, (2016). The rise of bias response teams on campus. New Republic. https://newrepublic.com/article/132195/rise-bias-response-teams-campus
Sumner, L. (2009). Incitement and the regulation of hate speech in Canada. In I. Hare & J. Weinstein (Eds.), Extreme speech and democracy (pp. 204–220). Oxford University Press.
Sunstein, C. (1995). Is violent speech a right? Advocacy of illegal violence to kill people is not necessarily constitutionally protected speech. The American Prospect, Summer 1995. http://prospect.org/article/violent-speech-right
UCLA (2014). Tool: Recognizing microaggressions and the messages they send. Diversity in the Classroom, UCLA Diversity & Faculty Development. https://academicaffairs.ucsc.edu/events/documents/Microaggressions_Examples_Arial_2014_11_12.pdf
Volokh, E. (2015, May 7). No, there’s no ‘hate speech’ exception to the First Amendment. The Washington Post.