Speech codes on college campuses are often a way of limiting a student’s free speech in order to prevent undue harm or offense to other students. More specifically, speech codes are rules set in place by educational institutions which limit hate speech against other people due to their, “sex, race, color, handicap, religion, sexual orientation, or national and ethnic origin” (Lawrence III, 1990, 175). Hate speech, the type of speech in question when referring to speech codes, is “language (oral or written) that expresses strong hatred, contempt, or intolerance for some social group, particularly social groups classified according to race, ethnicity, gender, sexual orientation, religion, disability, or nationality (Timmons, 2014, 139).
In this essay, I will present the view that speech codes on educational campuses are justified, and tackle the most common counter-argument to my proposition. There is one main reason why I believe that speech codes are justified in an educational setting. Primarily, speech codes employ the harm and offense principles as a way to strengthen the validity of the legal creation of codes to prevent hate speech. Opponents to speech codes on campuses, however, have a counter-argument to my above belief. This argument is that people believe that speech codes censor differing opinions that are protected by the First Amendment right to freedom of speech. Through this essay, I will fully explain my belief that speech codes on campuses are justified, while disproving the counter-argument one may have against my thesis.
Firstly, both the harm principle and the offense principle give way to legally justifying speech codes on campuses. The harm principle is a principle in which, “a government may justifiably pass laws that interfere with the liberty of individuals in order to prohibit individuals from causing harm to other individuals or to society” (Timmons, 2014, 134-135). With regard to the harm principle, it is necessary to understand harm in a psychological way, such as when one person causes harm to another person’s mental state. For example, when hate speech is directed toward someone, in order for the speech to truly be considered harm, it must inflict serious mental distress. Moreover, the offense principle states that, “a government may justifiably pass laws that interfere with individual liberty in order to prohibit individuals from offending others, where offensive behavior includes causing others shame, embarrassment, or discomfort” (Timmons, 2014, 135).
The difference between “harm” and “offense” is that offense includes psychological situations that are disagreeable, yet they are not as traumatizing as to say that they are harmful. From a legal standpoint, the harm and offense principles allow the constructing of laws and statutes governing speech codes, because hate speech is seen as causing both harm and offense to those on the receiving end of such speech in such a way that it is serious enough to invoke rulemaking action. A prime example supporting this idea is that of how “fighting words”, “racist speech in the form of face-to-face insults, catcalls, or other assaultive speech aimed at an individual or a small group of persons” are not covered by the First Amendment’s right to freedom of speech (Lawrence III, 1990, 175). When tying the “fighting words” clause in the First Amendment to the harm principle, it is evident that speech that falls under the definition of “fighting words” must be harmful enough psychologically to permit the creation of a rule not protecting some forms of speech.
In Charles R. Lawrence, III’s, writing on Racist Speech as the Functional Equivalent of Fighting Words, he makes this argument clearer by stating that, “Racial insults are undeserving of First Amendment protection because the perpetrator’s intention is not to discover truth or initiate dialogue, but to injure the victim” (Lawrence III, 1990, 175). Noticeably it is not of question if the harm principle is called upon because someone is physically harmed by, say, a playground bully; so, it should not be of question whether somebody is emotionally harmed through racial slurs.
Many campuses use the “fighting words” clause to protect speech codes because often hate speech includes or is made up in total of “fighting words”. For example, if a white, male student goes up to a Hispanic student and begins calling the Hispanic student a “spic” or an “illegal immigrant,” the Hispanic student is going to feel shock and distress, an immediate impact that is often equivalent to “a slap in the face” (Lawrence III, 1990, 175). In this case, the “fighting words” that are being used is the face-to-face insults by the white student to the Hispanic student. The harm felt by the Hispanic student is deserving of protection under the harm principle because the words said are equivalent to a physical manifestation of violence toward the Hispanic student. Concurrently, the white student would have breached the Supreme Court’s upholding of words that, “by their very utterance inflict injury or tend to incite an immediate breach of the peace,” are not protected under the First Amendment (Lawrence III, 1990, 175). I believe this view is observable that the harm inflicted by verbal assaults in the form of hate speech are legally bolstered by the harm and offense principles.
Given my above argument, a common counter-argument is this: speech codes are unconstitutional in regards to the First Amendment’s “freedom of speech” clause. Constitutionally, courts have been known to deem campus speech codes as unconstitutional. Most often, the codes on campuses have been too vague or overreaching and, therefore, cannot be implemented legally. Given this fact, the Supreme Court has held that governments, in this case educational institutions, cannot regulate speech unless it falls into certain categories, called “unprotected categories” (Arthur, 1997, 180). These classifications are very particular and narrowly-defined and include libel, incitement to lawlessness, obscenity, and “fighting words”, as mentioned earlier (Arthur, 1997, 180). Since these categories are unmistakably very limited, schools often implement speech codes that are too broad to be upheld by the Constitution.
An example of an overbroad speech code is that of the University of Michigan’s 1989 speech code. This code was known as the most far-reaching speech code because it included the prohibition of “stigmatizing or victimizing” individuals on the basis of “race, ethnicity, religion, sex, sexual orientation, creed, national origin, ancestry, age, marital status, handicap or Vietnam-era veteran status” (Arthur, 1997, 180). In 1989, the Michigan Code was brought to the courts where it was deemed unconstitutional because it, “violated rights both to free speech and to due process of law.” It was also considered “overbroad” and “unconstitutionally vague” (Arthur, 1997, 181). The Michigan Code was not the only code overturned by courts. Other schools implementing speech codes like Michigan’s were shot down in court claiming an invasion on an individual’s First Amendment rights. It is very clear that, in some cases, speech which could be defined as hate speech is protected under the First Amendment unless the speech falls into the above-stated unprotected categories.
The reason I believe that this counter-argument is not able to be justified in comparison to my thesis is that there are only a few instances where speech codes have been shown to be unconstitutional. Of course, there will always be those who object to speech codes. However, if a code’s rules prohibiting some form of speech happen to fall into an unprotected category, the prohibited speech included in the code is constitutionally allowed to be limited on campuses. Although I believe the Michigan Code was unconstitutional, a simple fix would be to pare down some of the broader language — such as the usage of the words “stigmatizing” and “victimizing” — to precise terms that are included in the “fighting words” clause. The changes could be to include terms like “catcalling” or “face-to-face insults” in the code. So those people who do participate in such speech are doing so at their own peril of not being constitutionally-protected if the person being afflicted takes the aggressor to court.
In conclusion, it is well-defined that speech codes are justified on college campuses so far that they do not encroach on anyone’s First Amendment rights. Through the use of the harm and offense principles, speech codes which limit hate speech through the “fighting words” clause protects students and faculty from being exposed to a hostile work and school environment where learning is fostered and not disrupted by intolerance. Although some may proceed to say that speech codes are an intrusion on First Amendment rights, it is a notion that can be prevented and disproved through the Constitution’s unprotected speech categories, where the truly harmful speech lies.