Volokh on the University of California's Proposed 'Hate Speech' Code
August 14, 2012
First Amendment guru, blog don, and law professor Eugene Volokh of UCLA School of Law has a post noting FIRE's involvement in pushing back against a report from the University of California (UC) Advisory Council on Campus Climate, Culture, and Inclusion that recommends to UC System President Mark Yudof that UC adopt a "hate speech" policy.
We at FIRE have outlined our objections to the Advisory Council's vague and unconstitutional proposal. Prof. Volokh goes beyond these legal questions to note some prudential considerations as well. Here's a taste:
[A] university campus is a place where counterspeech is especially likely to be effective in combating such overwhelmingly condemned evil speech, both intellectually (in the sense of providing a persuasive response, if any is likely to be required) and emotionally (in the sense of making the targets of the speech feel welcome and valued on campus)...
This is exactly right: colleges are intended to be unique places of free inquiry. Hate speech codes take a dim view of the moral senses of a university's students-and are quite patronizing besides. But Prof. Volokh also correctly points out that "evil" speech comes in more and less popular versions. Ultimately, the plan recommended by the UC Advisory Council amounts to just another effort to allow colleges to pick winners and losers in the marketplace of ideas based on the popularity of the controversial viewpoints among members of the campus community, particularly the administrators:
[If a "hate speech" ban is instituted, t]he whole range of what some people (especially those on the Left, since they are the ones most likely to get the ear of UC administrators) call "hate speech" would become vulnerable to suppression. Harsh condemnation of Islam, condemnation of pro-Palestinian violence, arguments against homosexuality or same-sex marriage, calls for crackdowns on illegal immigration, condemnation of abortion, and more: All these could potentially be covered by a "prohibit[ion]" of "hate speech on campus."
FIRE shares such concerns. Vague and overbroad policies such as the proposed UC "hate speech" ban are not just unconstitutional, they are invitations to entrench the political and social views of the college administrative class (be that "left" or "right"). Administrators are free to have viewpoints on social issues, but they must not be free to close off debate on those issues using the logic that viewpoints not in accord with their own are "hateful."