Elise Stefanik Was Wrong, and Hateful Speakers Are Legally Allowed on Campus. Universities Can't Stop Them Even if They Want to.

Bill of Rights, National Archives

Anti-Israel protestors on university campuses are sometimes saying terrible, evil, awful things. As we learned in yesterday’s congressional hearings, some members of Congress want universities to stop that.  Sorry, nope, universities have no legal power to stop peaceful speech or demonstrations, no matter how offensive they might be. The Constitution protects even the vilest protests. Can Harvard President Claudine Gay, who was vigorously questioned in yesterday’s hearing, actually stop, restrict, or punish anti-Israel or anti-Semitic protests? No. That would actually be illegal.

As the Massachusetts court system explained in 2017:

“The First Amendment of the U.S. Constitution guarantees the right to freedom of speech and the press. There is no ‘hate speech’ exception to the First Amendment in the U.S. Constitution.”

At yesterday’s hearing, several Republicans, notably including skilled conspiracy theorist Elise Stefanik, lambasted three university presidents because they had failed to stop angry anti-Israel, anti-Jewish demonstrations. She accused the presidents of a “lack of moral clarity.” Don’t those demonstrations violate the code of conduct, she asked? Are the protestors being punished? Why are universities allowing hate speech? In turn, the university presidents responded by mumbling, explaining complexities, citing the privacy laws that Congress itself had passed, and evading the questions. After my many years of experience in higher education, I can assure you that the presidents carefully parroted everything the university’s legal team told them to say. Stefanik stomped on them as if they were bugs and she was the exterminator. Members of the public and press, from left to right, have almost universally sided with Stefanik and against the universities. 

There’s only one problem: under American law, the university presidents were absolutely correct. Stefanik was embarrassingly wrong. Hate speech is awful—that’s why we call it hate speech—but the Bill of Rights and the Fourteenth Amendment erect an almost impenetrable shield that protects people who express their views, even when those views amount to hate speech. In our system of government, the only cure for evil speech is to respond with truthful, noble speech. Since almost all universities accept federal financial aid, they are, in general, just as obligated to protect free speech, including wicked speech, as any government agency. Exceptions are few, few, few.

So, let’s look at the law. The First Amendment says:

“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.”

It says, “no law.” It does not say, “no law unless we are offended.” The Fourteenth Amendment carries the same protection to the state level. Free speech specialist Crag R. Smith points out that speech, including hate speech, falls under the First Amendment’s protection. If hate speech represents a viewpoint, the Constitution protects it. Smith mentions the 1969 case Brandenburg v. Ohio, which ruled that an Ohio law against violent speech was unconstitutional. In that case, the Supreme Court vacated the conviction of a member of the Ku Klux Klan who threatened to commit violence against certain groups of people. 

In the Brandenburg case, a group of armed Klansman said things like this: they threatened to bury Black people, they said “Send the Jews back to Israel,” and they stated that a Black man would need “to fight for every inch he gets from now on.” These were obviously awful things to say, but they did not embody any direct threat to a particular person and, therefore, ruled the Court, the Constitution protected them. Indeed, the court stated that “A state may not forbid speech advocating the use of force or unlawful conduct unless this advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” [italics added] 

“Imminent lawless action” is an extremely rigorous standard; otherwise, free expression of offensive speech must be upheld. The Court’s ruling was unanimous.

In a more recent case, R.A.V. v. City of St. Paul, the Supreme Court found that the First Amendment protects such hateful symbols as cross burning and displaying Nazi symbols. The court firmly ruled that the city could not outlaw cross-burning under the stated reasons, although cross-burning could be prosecuted as trespassing, arson, or whatever, according to the circumstances. 

Earlier Post: Conservatives Think Controversial or Offensive Speakers Should Appear on Campus


Overall, as The Law Dictionary summarizes, no law in the United States restricts hate speech:

“In the United States, there are no laws against hate speech. Due to rights protected by the U.S. Constitution’s First Amendment, a person can say just about anything he or she wants to another person or group. By itself, such speech is allowed to take place without penalty under the law.

“A person hurling insults, making rude statements, or disparaging comments about another person or group is merely exercising his or her right to free speech. This is true even if the person or group targeted by the speaker is a member of a protected class. According to U.S. law, such speech is fully permissible and is not defined as hate speech.”

Similarly, attorney Lee Rowland shows that students and faculty on campus have free speech rights, and these rights do not bend when speech becomes hateful, disgusting, or offensive:

“As a general matter, when people use the term hate speech, they’re often referring to identifiably hateful, often racist or sexist speech that demeans people based on characteristics they can’t change. Under the First Amendment, that language, no matter how disgusting or offensive we find it, and I certainly do, is still protected. That doesn’t change on a public campus.”

Since no right is absolute, there are a few exceptions. In terms of college campuses, Smith points out that hostile environments create a different situation. If you are subjected to harassment in the workplace or in class, where you have no recourse to leave, you are protected. In those cases, the victim is trapped in what is called a “captive audience,” where protection against harassment is available. Harassment is one of the very few exceptions to absolute freedom of speech. We’ve already talked about “imminent lawless action.”

Earlier Post: Conservatives Object to a School Song about Rainbows

Under the United States of America’s Constitution and laws, as repeatedly emphasized and supported by federal courts, we have almost unlimited rights to express political opinions and other opinions. It makes no difference how awful or offensive other people might find them. The fact that anti-Semitic speakers appear on campus and speak, wave signs, and shout that Israel should be destroyed makes the students wrong, but it does not mean that the university itself is anti-Semitic. It only means that people have a Constitutional right to speak. And universities have no legal right to stop them.

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P.S. I will soon post more about this topic, including suggestions as to how the university presidents could have responded to Stefanik more effectively. 

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Important note: I am not an attorney, and this essay is not legal advice. My only purpose is to comment on the rhetoric of this dispute, and not to tell you what you should or should not do if you face a free speech situation. Free speech law is complicated; no right is absolute, and there are exceptions to all our rights. I am not qualified to guide you on those issues. If you have a free speech decision or need accurate information about your rights, see an attorney. As my late father (who was an attorney) liked to say, “Don’t do something and then ask me if it was legal. Ask me before you do it!” 

It could be noted that Harvard, like many schools, promises free expression to its students and this, as I understand it, is a legal obligation. 

by William D. Harpine

Copyright ©, William D. Harpine