HATE SPEECH ON CAMPUS: CASES, CASE STUDIES AND COMMENTARY
by Milton Heumann and Thomas Church with David Redlawsk (Editors). Boston: Northeastern University Press, 1997. 309 pp. Cloth $50, & Paper $20 . ISBN 1-55553-292-6

Reviewed by Jerome O'Callaghan, Department of Political Science, SUNY Cortland.

As its subtitle suggests, this volume is divided into three sections, each devoted to a better understanding of the dilemmas posed by the hate speech controversy. The editors have selected a group of cases that deal directly with the First Amendment dimensions of this problem, they then added five case studies from the University of Michigan, the University of Wisconsin, Brown, Dartmouth and Duke. Finally they included in the Commentary section some brief excerpts of political theory mixed with recent law review analyses from both sides of the debate. Each section is preceded by a concise introduction explaining the selection of material, and further outlining the general context. The issue of hate speech codes has raised temperatures at many U.S. campuses, and the editors are well aware that students have strong feelings on both sides of the issue. They hope to see the text adopted in courses as diverse as Introduction to U.S. Government, Civil Liberties/Civil Rights, Law and Courts, Race Relations, and Education Policy. Given the complexity of the material, and the sometimes obscure nuances of law involved, it is a safe bet for Civil Liberties/Civil Rights courses. (In fact it is more than a safe bet, it's an excellent choice).

The Cases section features some of the best known First Amendment litigants, not to mention restless malcontents, of the century. Civil liberties scholars will be happy to see these old friends gathered together for a renegade reunion: Whitney, Tinker, Johnson, Schenck, Brandenburg, Chaplinsky, R.A.V., Cohen, Collin, Beauharnais, and Feiner. In addition readers will find three less prominent cases that have particular bearing on this subject: HARRIS v. FORKLIFT (placing speech in the context of a hostile work environment), GOODING v. WILSON (the erosion of the fighting words doctrine) and HEALEY v. JAMES (one of the few Supreme Court cases to address free speech in a University setting). All but one of the cases explore the reach of the First Amendment, the exception is Harris, where the interpretation of the Civil Rights Act's "hostile work environment" takes center stage. All the cases are Supreme Court decisions, again with one exception: COLLIN v SMITH. In Collin the Seventh Circuit Court of Appeals grappled with the struggle over a proposed Nazi parade in the village of Skokie, Illinois. The Collin and R.A.V. cases are excerpted in greater detail than any of the others and rightly so. Each provides valuable insight into the legal complexities that separate free speech from actionable harm.

Skipping to Commentary, the last section of the book, readers will find that it, like the first unit, provides a selection of excellent material, some of it well known to scholars of Civil Liberties and the First Amendment. Here you will find John Stuart Mill, Herbert Marcuse, Charles Lawrence and Nadine Strossen. The assortment of perspectives is startling but justified. Mill and Marcuse provide the grand theories, each quite useful to partisans in the debate. Lawrence and Strossen, both excerpted from an issue of DUKE LAW REVIEW, provide spirited, learned analyses of the pros and cons of hate speech regulation. No doubt the editors were pressed for space here, as there are many authors one would like to see added to the list. (Mackinnon or Meiklejohn ... Shiffrin or Smolla ... the choices are legion.) My sympathies are entirely with the editors here; at 300 pages their text already bedevils the patience of many press editors.

The middle section, Case Studies, is the source of the original material in the book. It offers readers a behind-the-scenes look at several well publicized university free speech controversies. The editors, in their most idiosyncratic decision, have included one federal district court decision as a "case study," the remaining four case studies are in the more traditional form of the essay. Each essay in this section is the product of two graduate seminars on hate speech, conducted by the editors--thus each essay is student-authored. Of the five institutions examined, three are private, thereby adding an interesting legal twist: private institutions are not directly bound by the command of the First Amendment. Ironically the public universities (Michigan and Wisconsin) adopted the toughest speech code provisions, while the privates chose to act in more circumspect fashion. The result was, of course, that Michigan and Wisconsin ended up in federal court. Both speech codes were found to be unconstitutionally vague and overbroad. Dartmouth ended up in court as well, but on grounds having little to do with hate speech. Duke and Brown managed to avoid the courtroom. At Duke the issue fizzled out in the rough and tumble of campus politics; no code was adopted. Interestingly the Duke administration seems to have taken a reactive stance, feeling pressure from a conservative interest group, the National Association of Scholars. The Brown story is the only one where a speech code (here in the form of a harassment provision) resulted in the successful expulsion of a student. As a result many members of the campus community have voiced complaints about a pall of orthodoxy on campus.

The introductory essay in this section is particularly helpful. Readers are reminded that the story of hate speech codes is fundamentally about "law in action, [and] values in conflict." The editors point out many of the possible variations in codes--adopted by public institutions or private, directed more toward action or toward speech, affecting academic spaces or residence halls, regulating students or all the academic community, etc. The combinations are almost as byzantine as the campus politics, not to mention the legal reasoning.

While all of the case studies have something to offer, two stand out for those whose interest is free speech law. In Wisconsin and Michigan speech codes were developed, utilized and challenged in federal court. The rise and fall of each code is instructive not only for students of free speech doctrine but also for faculty and administrators. Equally instructive, not to mention depressing, is the pervasive limit of low-level racial and/or sexual harassment that gave rise to the codes in the first place. The evident collapse of speech regulation as a solution has not lead to any advance (great or small) in addressing underlying campus tensions.

The story of Dartmouth College's struggle with the Dartmouth Review is the least useful of the case studies because its facts are truly unique. Few, if any, campus newspapers have the power, the reputation, or the funding to play the "bete noir" of the free press. Clearly the Dartmouth Review, in response to what it viewed as PC orthodoxy at the college, came to define the campus agenda; it also managed to put a chill on the academic life of the college. Reading this essay one can only conclude that whatever goals it aspired to pursue, the Review left a sorry path of destruction in its wake.

An interesting tangent in this section is the appearance, in cameo roles, of a large variety of academic luminaries (I hesitate to say "stars"). Adding color to campus machinations we find:

Donald Horowitz, Richard Delgado, William Van Alstyne, Stanley Fish and Joel Grossman.

Also in attendance, in a less than heroic role as a reporter for the infamous Dartmouth Review, is one Laura Ingraham. (Could this be the Laura Ingraham who is currently ensconced as the conservative darling of the "liberal media elite"?)

As for weaknesses in the volume I can only quibble about some material that was not included. The Cases section would benefit from a brief excerpt of Justice Jackson's WEST VIRGINIA v BARNETTE opinion. That opinion, perhaps more than any other, set the tone for most of the liberal free speech decisions of the Warren Court and beyond. In two succinct pages Justice Jackson made a passionate and inspirational claim on the meaning of "free speech." Whether or not one agrees with his opinion, free speech debates of the last 50 years have been fought over the claims that he articulated.

I would also like to see the editors address the difficulties inherent in the rise of "content-neutrality" as a supposedly supreme principle in free speech law. A doctrine that commands government to be neutral to content appears to undermine the Court's reliance on certain well-established exceptions to the reach of the free speech guarantee. If "content-neutrality" expands beyond its modest origins (time, place and manner regulations), surely obscenity law and defamation law are thrown into chaos. The editors address content neutrality briefly, and have, I think, underestimated the dilemmas it has created.

Thankfully there is more to this book than First Amendment law. There is a lot of context to absorb here, including not just politics, but, worse still, campus politics. The editors have done excellent work in giving hate speech controversies an appropriate setting for re-evaluation/analysis. This volume was a pleasure to read and will certainly assist faculty teaching civil liberties and civil rights courses. While tolerance is advocated by both sides in hate speech debates, opponents of hate speech codes are quick to label code proponents as intolerant campus censors. Herbert Marcuse reminds us of a wonderful paradox--one that captures well the difficulty of resolving the hate speech dilemma: "The tolerance which enlarged the range and content of freedom was always partisan -- intolerant toward the protagonists of the repressive status quo."

Cases

COLLIN v SMITH 578 F.2d 1197 (1978)

GOODING v. WILSON 405 U.S. 518 (1972)

HARRIS v. FORKLIFT 114 S.Ct 367 (1993)

HEALEY v. JAMES 408 U.S. 169 (1972)

WEST VIRGINIA v BARNETTE 319 U.S. 624 (1943)