A guide for colleges navigating the ‘hate speech’ line

While most college campuses value liberal education, intellectual fellowship and free inquiry, there is undoubtedly a tension on campuses across America today. How do we pursue liberal, rational open learning with robust and hard-hitting debates, and at the same time celebrate a spirit of inclusion and community? How can we exercise free expression and maintain civility?

The boundaries of protected free expression on our campuses must be expansive. The mission of our colleges — to discover, create and transmit knowledge — depends on it.

{mosads}But when is the line crossed? When does behavior cross over from being protected, even hateful speech, into the proper subject of disciplinary action or even expulsion?

To draw the line, we may borrow a basic doctrine from criminal law. We should evaluate the expressive behavior based on the actor’s intent. Is the actor intending to cause harm to a particular victim or is the actor intending to communicate views, however unpleasant or even hateful those views may be?

Some years ago, I used this method in my analysis of an incident that occurred at Williams College, where I was a trustee.

A Jewish student complained that a faux eviction notice had been placed on her dorm room door, purporting to imitate those put on Palestinian homes designated for destruction due to involvement with terrorism. The student understandably felt terrible. The college president asked for my advice.

“This,” he said, “is not just speech — this is actual conduct. Can we sanction those responsible?”

I suggested looking into the way the notices were posted to try to determine the intent behind the posting. Were only Jewish students targeted? Was the point to intimidate and threaten individual Jewish students or was it rather to make a dramatic, and even disturbing, statement about views concerning the Israel-Palestine conflict?

As it turned out, every student in that dorm regardless of affiliation received one.

We may apply a similar analysis to cases of pure speech. Words alone may in some cases cross the line from protected expression to that which may be sanctioned or punished. But punishment is only appropriate when the purpose of the behavior is to instill fear of imminent serious harm.

A racial epithet, when screamed at another student in a menacing manner is no longer protected expression. Now it has crossed over into that which may be punished by the university. Without such intent, the expression should be protected.

But just because speech is protected does not mean it must go unchallenged. The moral response to hateful speech is to describe it as such, and to criticize it directly. Justice Louis D. Brandeis famously wrote in Whitney v. California that the answer to hateful speech is not “enforced silence,” but “more speech.”

In December 2014, while I was president of Brandeis University, a prominent student member of the campus Black Lives Matter movement tweeted that she had no sympathy for the two New York City police officers who had been murdered in revenge for the deaths of Eric Garner and Michael Brown.

Knowing this student, I believe she was trying to express her deep frustration over her perception that the officers’ deaths had received more attention that those of Garner and Brown. But that is not what she wrote, and her tweet went viral.

I received enormous pressure from some to expel her or at least withdraw her financial aid package, and from others to issue a short statement supporting free speech and the right of all members of the community to say what they wished.

I rejected the idea of expelling the student from the university, or of pursuing any student disciplinary charges or other sanctions such as terminating financial aid. I believed her tweet to be protected speech. But I also believed that this was a case that called for more than a mere statement confirming her rights.

In the same statement that defended her freedom of expression and her academic freedom, I added a criticism of my own, saying that her comments were contrary to the highest values of the university and that I found them to be abhorrent.

We bind ourselves to an impoverished choice set if we believe that we can either punish speech or else we validate it.

There is the middle position: Justice Brandeis’s dictum of “more speech” that allows us to respond without punishing. In the face of hate speech, the call for more speech is not merely an option. It is a moral obligation.

The balance of free expression and civility does not require complete agreement but it does require respectful disagreement.

I proposed three principles of respectful disagreement: look for common ground even when we disagree and articulate that common ground as part of the discussion; assume the best in each other, and not suspect the motives of those with whom we disagree; and disagree without attacking each other personally — dispute, without delegitimizing.

These are the principles of a kind of vigorous civility that is essential for our campuses and ultimately for our society.

Frederick M. Lawrence is the Secretary/CEO of The Phi Beta Kappa Society and is the former president of Brandeis University. He is also a senior research scholar at Yale Law School.

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