A few months ago, Yale University became the epicenter of a debate about potential tensions between free speech and equality. An Associate Master of one of Yale’s residential colleges resigned after protests sparked by an email she wrote to her residents. The email was a response to a campus-wide email by the administration urging students to avoid culturally insensitive costumes. Her response indicated that, in the spirit of free expression and youthful exploration, her residents could experiment with edgy, offensive Halloween costumes. The ensuing outrage about her email and the racial climate at Yale came on the heels of another widely reported protest. Video footage went viral when a professor, who had joined activists seeking to raise awareness about racial issues at the University of Missouri, attempted to remove a student journalist from a public space. These incidents solidified the terms of a longstanding debate between free speech and equality. Free speech has the power to seriously degrade others on the basis of race or other immutable characteristics. Free speech also disrupts the safe spaces that some members of vulnerable minority groups desire to share their own ideas. These incidents framed the choice as a dichotomous one between free speech and the equality or dignity of members of minority groups. As a matter of both constitutional law and sound policy, I believe we need to reframe the terms of this debate.
The choice between free speech and equality is a false one, both from legal and policy perspectives. Arguments that courts should balance away our strong free speech protections in the name of unspecified equality or dignity interests would complicate and distort constitutional law, and may be counterproductive.
From a legal perspective, even hateful, offensive speech is protected by the First Amendment, which applies to government action (including public universities). The greatest evil, according to First Amendment jurisprudence, is when the government engages in viewpoint discrimination, when the government attempts to censor speech on the basis of its message. Efforts to stamp out speech because it is degrading or offensive to particular groups violate the principle of viewpoint neutrality in First Amendment jurisprudence because hate speech restrictions apply only to disparaging views about particular groups. The protection of offensive viewpoints against viewpoint discrimination makes sense because censorship of offensive speech can often be used to stifle unpopular or minority views or practices. Countries that ban hate speech often end up stifling discourse, dissent, and minority voices (like the case of French comedian Dieudonne, who was investigated for “defending terrorism” after his Facebook post discussed the status of Muslims following the Charlie Hebdo attacks). American free speech jurisprudence has chosen to establish a high bar before speech loses its protection and can be regulated as threatening or harassing to a reasonable person.
Some scholars, who believe the strong, near-absolutist levels of First Amendment protections afforded in this country are unnecessary, want to balance our free speech rights against equality interests. They cite the Equal Protection Clause of the Fourteenth Amendment, which was enacted later than the First Amendment, as evidence that speech rights must sometimes yield to the interests of equality or dignity. The argument that First Amendment rights may sometimes be trumped by Fourteenth Amendment values is constitutionally problematic. The Fourteenth Amendment requires “state action” – meaning the Fourteenth Amendment is violated only when the government treats people unfairly or discriminates on the basis of race or gender. State action sufficient to trigger a Fourteenth Amendment violation does not occur when individuals exercise their speech liberties. The state action doctrine means that, in the name of women’s equality and reproductive rights, the state is prohibited from restricting access to abortions by banning abortion or regulating it unnecessarily. However, this doctrine also means that the state need not subsidize or fund abortion. Similarly, the state cannot create buffer zones to eliminate protests near abortion clinics that unduly burden free speech rights. In that situation, the state’s action implicates First Amendment rights but the private protesters’ actions do not implicate Fourteenth Amendment rights, even if the protesters make exercising the right to an abortion more difficult. The asserted tension between the First Amendment and the Fourteenth Amendment is a false one.
Although courts apply the state action doctrine only in the face of government involvement, some scholars argue that the Fourteenth Amendment provides affirmative duties on the states to ensure equality by regulating the behavior of other citizens. If accepted by courts, this argument could create a real conflict between free speech and equality rights because the government would have an affirmative duty to regulate some speech to promote equality. However, this approach would not only upend the majority of our current Fourteenth Amendment and First Amendment jurisprudence, it would present a series of problems for determining how much states must regulate individuals in order to achieve equality.
The famous case of Shelly v. Kraemer, which represents the high water mark of what can be considered state action, does not apply in the First Amendment context. Shelly held that the Fourteenth Amendment prohibited courts from enforcing racially restrictive contracts that forbade the sale of a home to a black family. This case lends some support to the view that when courts enforce private behavior (in this case a private contract), state action is satisfied. The home at issue was sold to a black family who did not know of the racially restrictive covenant, and a neighbor sued to enforce the contract. The extension of the state action doctrine articulated in Shelly, however, hasn’t been applied to courts upholding constitutional rights, for good reason. Courts enforcing a statute or the common law (or a racially restrictive contract) against private parties exercise state action because the state must intervene to restrict private behavior (in Shelly, to block a sale between a willing seller and buyer.) In contrast, simply allowing a private party to act unobstructed by the state based on a constitutional freedom does not implicate state action. When courts uphold free speech rights in the face of state laws, they are not enforcing a state law or contract, but are preventing the state from interfering with private behavior/speech. Shelly involved a situation where the court was needed to block a private sale. Free speech cases involve court intervention to shield private action against state interference.
The Fourteenth Amendment thus does not trump the First Amendment in cases of governmental regulation of private speech. Although the Fourteenth Amendment expresses the notion that equality values are fundamental, free speech can also protect those values, as a matter of policy. Although hateful speech is corrosive to group identity and individual well-being, it can also be a tool of minority empowerment. Individuals and groups can become empowered in the face of hateful speech. To me, there is nothing more American than Jewish lawyers representing Neo-Nazis wishing to march in a town populated with 7,000 Holocaust survivors, who were still traumatized by their memories of concentration camps. We should react with outrage to insensitive, hideous marches like the one that took place in Skokie, and we should stage counter-protests to incoherent, anti-gay protests at soldiers’ funerals. Individuals have the First Amendment freedom to associate, and can and should create private safe spaces limited to only like-minded individuals. Private universities may regulate speech however they wish, in accordance with the promises they make to their students about free speech. But whenever anyone in power regulates hateful speech or prevents public media access, there is no indication that we are making our country more equal.
State regulations created in the name of racial tolerance or gender equality often lead to intolerance. France’s ban on the burka in public spaces, enacted partially in the name of women’s equality and protection of women, would never be upheld in this country because it is facially intolerant of a religious practice. Further, restricting hateful speech does not necessarily lead to a less racist society, and may in fact just push intolerant views underground.
Equality requires enforcing norms against discrimination by the government, and perhaps even by private employers, but true diversity cannot exist without permitting the speech of the intolerant. Equality does not exist when people, even heinous, disaffected racists, have markedly fewer rights to express their perspectives. We are so lucky to live in a diverse country, filled with diverse people, armed with diverse views. The way to accommodate that diversity is not to create false conflicts between free speech and equality, but to resolve the conflict- with a coherent state action requirement and laws that regulate conduct but allow the peaceful expression of all views.
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