Circumventing the “true threat” and “viewpoint” protection tests to deal with persistent campus hate speech

ABSTRACT

This essay suggests using harassment law as a mechanism for remedying defects in “true threat” and “viewpoint protection” language which places an undue burden of proof on those trying to quell hate speech on campuses. The essay reviews noted failures and their causes in “true threat” and “viewpoint protection” rulings. Currently, the First Amendment of the Constitution protects freedom of expression unless it presents “a clear and present danger,” is treasonous, obscene, libelous or slanderous. The initial “clear and present danger” standard laid out by Justice Holmes in the Schenck decision has been refined in several cases to create an even heavier burden of proof. Currently, based particularly on the Brandenburg v. Ohio and Virginia v. Black rulings, to be prosecutable, speech must be a “true threat,” which means person-specific, imminent, and possible. However, the Supreme Court has also protected hate speech by defining it as “viewpoint” in such case as Indiana v. Hess, Snyder v. Phelps, and Matal v. Tam. This essay concludes by exploring ways to circumvent the “true threat” and “viewpoint” standards by relying on harassment rulings and extending these precedents from the workplace to campus learning environments.

KEYWORDS:

• True threat
• hate speech
• harassment
• viewpoint

Notes

1. Brown, “Retheorizing Actionable Injuries in Civil Lawsuits Involving Targeted Hate Speech,” 1–56.

2. Butler, Excitable Speech.

3. Walker, Hate Speech. Walker includes a chapter on “The Campus Speech Codes,” which is particularly relevant to the present study.

4. See, for example, Gitlow v. New York, 268 U.S. 652 (1925).

5. However, the assurance is less certain if a member of a protected minority were to engage in hate speech against another member of a different protected minority. Glenn and Stephens, “Campus Hate Speech and Equal Protection,” 349–63.

6. Strossen, “Sexual Harassment in the Workplace,” 1–15.

7. See Hulshizer, “Securing Freedom from Harassment,” 392–98. See also Delgado, “Campus Anti-Racism Rules,” 375–8; Byrne, “Racial Insults and Free Speech Within the University,” 425–30; and Smolla, “Academic Freedom,” 211–16.

8. 721F.Supp. 863 (E.D. Mich. 1989).

9. Chemerinsky, “Unpleasant Speech on Campus,” 5.

10. This position is supported by a number of scholars. See for example, Browne, “Title VII as Censorship,” 481–99; Gerard, “The First Amendment in a Hostile Environment,” 1003–21; Alexander, “Banning Hate Speech,” 71–92; and Walker, 141ff.

11. U. S. v. Kelner, 534F. 2d 1020 (1976).

12. Healy v. James, 408U.S. 169 (1972).

13. Jacobs and Potter, Hate Crimes.

14. O’Neil, “An Inquiry into the Legal and Ethical Problems,” : 26–30.

15. 605F. 3d 703. Title VII as 29U.S.C. sec. 633a.

16. Rodriguez v. Maricopa County Community College Dist., 605F.3d 703, 109 FEP 485 (9th Cir. 2010), 7260.

17. New York Times Archive: https://www.nytimes.com/1989/12/13/opinion/how-to-handle-hate-on-campus.html. Accessed on April 5, 2019. It should be noted that homosexuals were not a protected class at the time; however, even if they were, since no specific homosexual group or person was named, the poster would not have constituted a true threat.

18. U.S. v. Baker, No. 95–80106 (E.D. Mich. June 21, 1995).

19. Iota Xi Chapter of Sigma Chi Fraternity v. George Mason U., 923F. 2d. 388 (1991) Fourth Circuit Court of Appeals.

20. To its credit, UC Riverside eventually created a “Hate/Bias Response Team” and a “Not in R House” student group.

21. One of the best studies in this area is by Herbert, “Can We Still Talk Things Out?” 117–39.

22. Abrams v. United States, 250U.S. 616 (1919).

23. 250U. S. 616, 627, 630 (dissenting).

24. Schenk v. United States, 249U.S. 41, 52 (1919).

25. 249U.S. 41, 52 (1919).

26. 249U.S. 41, 47 (1919).

27. 274U.S. 357, 377 (1927). For extensive look at the necessity for protecting controversial speech see McGaffey, “Freedom of Speech for Ideas We Hate,” 90–103.

28. Palko v. Connecticut, 302U.S. 319, 327 (1937).

29. Cantwell v. Connecticut, 310U.S. 296, 310, (1940).

30. Police Department of Chicago v. Mosley, 408U.S. 92, 95 (1972).

31. 249U.S. 47, 52 (1919).

32. 315U.S. 568 (1942). This case is explored further in this study when I turn to the issue of context creating meaning for court rulings.

33. See Hanson, Richendrfer and Schissler, “The Fighting Words Doctrine,” 119–38. For an on-campus approach to fighting words see Tuman, “’Sticks and Stones May Break My Bones,” 114–28.

34. 337U.S. 1, 20 (1949).

35. 337U.S. 1, 3 (1949).

36. 337U.S. 1, 4 (1949).

37. 403U.S. 15, 25 (1971).

38. One might in such a case invoke Tinker v. Des Moines (393U.S. 503, 1969), the ruling that re-instated high school students who protested the war in Viet Nam by wearing black arm bands. The Tinker decision extended protection of controversial speech to symbolic speech, which was further extended in Texas v. Johnson (491U.S. 397, 1989), a flag burning case.

39. 395U. S. 446–47 (1969).

40. 395U.S. 446, 447.

41. 414U.S. 105 (1973).

42. 538U.S. 343 (2003).

43. Snyder v. Phelps, 562U.S. 443 (2011). I was critical of the decision arguing that it overturned an emotional distress ruling that had a high burden of proof and that the majority of the Supreme Court failed to properly contextualize the discourse of the Phelps group. Smith,“Snyder v. Phelps,” 3–9.

44. For a full exploration of the implications of this case, see Dee, “Sweet baby Jesus,” 91–127. Dee reinforces my point when she says, “The High Court’s decision in Matal v. Tam and the Federal Circuit’s decision in In re Brunett confirm that the First Amendment protects trademarks even if they are perceived to be ‘disparaging’ or ‘immoral or scandalous.’” (92).

45. 582U. S. (2017). In 2019 the Supreme Court reaffirmed this decision in 6–3 ruling again calling the Lanham Act of 1946 on trademarks into question. In this case, the Court ruled that the denial of trademark for the word “FUCT” was unconstitutional. Iancu v. Brunetti, 588U.S. (2019).

46. There is precedent for this ruling in Cantwell v. Connecticut, 310U.S. 296 (1940); see also, R. A. V. v. City of St. Paul, 505U.S. 377 (1992) in which the Supreme Court struck down a city ordinance that made it a misdemeanor to place “on public or private property a symbol, object appellation, characterization or graffiti, including but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know, arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.” See also, Gander, “Justice Scalia and the RAV Mystery,” 134–53.

47. Richards, Philosophy of Rhetoric.

48. Goodwin and Durant, Eds. Rethinking Context, 2–3.

49. 315U.S. 568 (1942).

50. 315U.S. 568, 572 (1942).

51. See note 31above.

52. 487U.S. 474, 479.

53. 980 P. 2d 847, 87 Cal. Rptr. 132. Available on line at: https://scocal.stanford.edu/opinion/aguilar-v-avis-rent-car-system-inc-31847. The Supreme Court declined to take up the ruling. Aguilar v. Avis Rent-A-Car Systems, 529 U.S. 1138 (2000).

54. 477U.S. 57, 64 (1986).

55. 477U.S. 57, 65 (1986).

56. 510U.S. 17, 21 (1993).

57. 523U.S. 75 (1998).

58. Willborn, “Taking Discrimination Seriously,” 677–721.

59. Vol. 29, Section 1604, 11.

60. 503U.S. 60 (1991). See also Faragher v. City of Boca Raton, 524U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524U. S. 742. Title IX was formulated as part of the Education Amendments enacted by Congress and signed into law by President Nixon in 1972. It prohibited discrimination in education programs on campuses receiving federal aid. Title IX was extended to athletic programs in 1975. With the establishment of the U.S. Department of Education in 1980, oversight for Title IX was given to the Office of Civil Rights.

61. 524U.S. 274 (1998).

62. 526U.S. 629 (1999).

63. Gebser, 524 U.S. 274, 283, and Davis, 526U.S. 629, 639.

64. Fisk and Chemerinsky, “Civil Rights Without Remedies,” 793.

65. See, Gebser, 524U.S. 274, 292.

66. Department of Education, Revised Sexual Harassment Guidance.

67. 283U.S. 697 (1931). Nebraska Press Association v. Stuart, 427U.S. 538.

68. Justice Brandeis claimed that “[i]f there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.” Whitney v. California, 274 U.S. 357, 377 (1927).

69. Haiman, Speech Acts and the First Amendment; and “Hate Crimes,” 161–2.

70. Haiman, “On Being Politically Correct,” 1–3. See also, Chuang, Krishna, and Daniels, “Gender and Ethnicity Influences,” 99–115.

71. Gill, “Revising Campus,” 124–37.

72. Miami Herald v. Tornillo, 418 U.S. 214 (1974); Hurley v. Irish-American Gay, Lesbian, and Bi-Sexual Group, 515U.S. 557 (1995).

73. Currently, cyber and on campus bullying are testing this model; however, as Smith and Coel point out, bullying is currently being left out of campus regulations. Smith and Coel, “Workplace Bullying Policies,” 96–111.

74. 503F. Supp. 383 (E.D. Pa. 1976), modified, 564F. 2d 126 (3d Cir. 1977), and cert. denied, 435U.S. 908 (1978).

75. 21 California 4^th 121, 87; California Reporter 2d 132, 980 P. 2d 846.

76. From his dissent in Olmstead v. U.S., 277U.S. 438, 478 (1928, dissenting).

77. 381U.S. 479 (1965).

78. 530U.S. 703 (2000).

79. Weberman, “University Hate Speech Policies,” 553–89.

80. I focus on physical campus settings in this article. However, online hate speech is becoming more and more prevalent. It leads to different notion of captive audience. Brown, “Averting Your Eyes in the Information Age,” 1–54.

81. Bonnell v. Lorenzo, 81 F. Supp. 2d, 777 (1999): appeal 241 F. 3d. 800 (2001).

82. See, for example, Ladenson, “Is Academic Freedom Necessary?” 59–87; Royce, “The Freedom of Teaching,” 235–40; Dewey, “Academic Freedom,” 3; Mathews, “A Symposium on Freedom and Ideology,” 4; and Hook, “Communists, McCarthy and American Universities,” 344.

Additional information

Notes on contributors

Craig R. Smith

Craig R. Smith (Ph.D. Pennsylvania State University) is an Emeritus Professor at California State University, Long Beach. He wishes to thank the anonymous reviewers and the editor for their constructive comments. This article is based on paper presented at the NCA’s Conference on Freedom of Expression held at the University of North Carolina at Greensboro on October 24, 2019. The author can be reached at [email protected].