Professor discusses what qualifies as hate speech
May 24, 2018
Despite popular belief, hate speech on college campuses is protected under the First Amendment. Censorship of free speech in light of recent campus events was discussed during last week’s “Ethics at Noon” sponsored by the Markkula Center for Applied Ethics.
Lawrence Nelson, a philosophy professor and faculty scholar at the Markkula Center, gave a presentation May 16 on free speech laws and how the policy is implemented at Santa Clara.
His presentation was based on the book “Free Speech on Campus” by Erwin Chemerinsky and Howard Gillman.
“One of the important values behind free speech is that we are able to disagree with [people] and what they are saying, but can still defend their right to express it,” Nelson said.
In winter 2018, anti-immigration posters reading “No Means No” and “#MyBordersMyChoice,” a mocking twist on a feminist movement slogan, were found in Benson Center and the Learning Commons on Santa Clara’s campus.
“This poster was considered an example of unacceptable bias in expression and also violated campus posting policy,” Nelson said. “I would have to say based on content, as objectionable as this poster may be, is protected by free speech.”
According to the Leonard Law and California education code, the free speech rights of the students at Santa Clara are the same as those at other universities—whether in private or public spaces—and are protected under the First Amendment.
Under the Leonard Law, the university cannot censor speech because the content is considered offensive or hateful. However, the university can censor speech that meets the legal criteria for harassment, true threats or other forms unprotected by the First Amendment.
Nelson pointed out that there is confusion about what constitutes harassment or true threat, and the university should work to specify these definitions.
According to Nelson, although we may morally disapprove of certain forms of expression, individuals who want to make such utterances should not be punished for doing so. The university cannot prevent some disruptions because they don’t like what is being said.
“One of the things we’ve come across this year working on free speech and civil discourse is how little is understood about hate speech, ” said David DeCosse, Director of Campus Ethics Programs at the university, who delivered opening remarks at the event. “You cannot prohibit hate speech.”
Nelson argued that the language about hate speech is too elastic. Any critical or controversial comment cannot be sanctioned, depending on who finds the speech to be offensive or degrading.
In response to the “No Means No” flyers, Nelson said that the reason the posters were taken down was a result of the individual or group failing to abide by the hanging flyers policies, as stated in the Student Handbook.
Assuming the posters were properly hanged, the content of the poster would have been protected by the First Amendment.
“I argue for content neutrality,” Nelson said. “If the policy is suppressing right wing points of view, I would say the university needs to allow them to speak.”
Although no ideas for a new speech policy have been crafted, Nelson sees the need for a change in the way Santa Clara discusses free speech for students.
“It is important to bring these issues home,” DeCosse said. “It is not just issues that others are dealing with, but ones we are dealing with here. I think this talk is a great way to make it more real.”
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