This research paper reviews and analyzes the constitutionality of university campus hate speech codes. In every case in which the constitutionality of such codes and related state or local laws has been tested in the courts, such codes and laws have been found to be in violation of the free speech provision of the First Amendment. Such codes which are promulgated by private universities are constitutional; however,
unless and until the hostility of a majority of the Supreme Court toward such codes eases, only very narrowly drafted codes of public universities have much chance of surviving constitutional challenges to their validity.
In the 1980s and early 1990s, a number of leading universities in the United States, including Michigan, Wisconsin, Stanford and Emory, adopted speech codes which were designed to prohibit and/or to impose sanctions against expressions of hate speech on campus. Walker defines hate speech to include "any form of expression deemed offensive to any racial, religious, ethnic or national group." Such codes were a response to the outbreak on many campuses of violent speech and incidents against certain groups. According to Matusda, Lawrence, Delgado and Crenshaw, a 1990 Report by the National Institute Against Prejudice and Violence found that 65 to 70 percent of minority students reported that they had been the targets of some sort of ethnoviolent harassment, a group of victims estimated to be 800,000 to 1,000,000 per annum. The adoption of such codes reflected the growing numbers and influence of minority groups among the student population and upon college administrations.
These codes posed a direct challenge to a long series of
Supreme Court and other cases decided after 1930 and especially
by the Warren Court in the 1950s and 1960s, which had greatly expanded the zone of protection afforded to various types of provocative or objectionable speech under the First Amendment.
Some of the...