Indiana Law Review


Indiana Law Review
Volume 29 1995 Number 2

ARTICLES

Regulating Hate Speech And The First Amendment:
The Attractions of, and Objections to,

an Explicit Harms-Based Analysis

Ronald Turner*

Introduction

When, and under what circumstances, is the regulation of "hate speech" 1

* Assistant Professor of Law, The University of Alabama School of Law. B.A., magna

cum laude, 1980, Wilberforce University; J.D., 1984, The University of Pennsylvania Law School.

The author thanks Dean Kenneth C. Randall and the University of Alabama Law School

Foundation for the generous research support which made this Article possible.

1. As noted by Professor Henry Louis Gates, the term "hate speech" is "ideology in

spansule form" and is the

term-of-art of a movement, most active on college campuses and in liberal

municipalities, that has caused many civil rights activists to rethink their allegiance to

the First Amendment, the very amendment that licensed the protests, the rallies, the

organization and the agitation that galvanized the nation in a recent, bygone era.

Henry Louis Gates, Jr., Let Them Talk, New Republic 37 (Sept. 20 & 27, 1993). As any definition
of hate speech may tend to prejudice the discussion, shape or predetermine the outcome, or utilize

terms laden with subjectivity, the reader should consider the following definitions and concepts.

See Calvin R. Massey, Hate Speech, Cultural Diversity, And The Foundational Paradigms OfFree

Expression, 40 UCLA L. Rev. 103, 105 n.2 (1992). Professor Massey assumes that hate speech
is any form of speech that produces any of the harms which advocates of suppression

ascribe to hate speech: loss of self-esteem, economic and social subordination, physical

and mental stress, silencing of the victim, and effective exclusion from the political

arena.

Id. In Massey' s view, this approach "admits the validity of the harms asserted and takes those

harms seriously by making no attempt to distinguish between types of speech that might produce

the same harm." Id.

Professor Frederick Schauer has defined hate speech as

utterances intended to and likely to have the effect of inducing others to commit acts and

violence or acts of unlawful discrimination based on the race, religion, gender, or sexual

orientation of the victim; and . . . utterances addressed to and intended to harm the

listener (or viewer) because of her race, religion, gender, or sexual orientation.

Frederick Schauer, Uncoupling Free Speech, 92 COLUM. L. Rev. 1321, 1349 (1992). For Professor

Mari Matsuda, the three characteristics of racist speech are: "1. [t]he message is of racial



258 INDIANA LAW REVIEW [Vol. 29:257

constitutional under, or violative of, the First Amendment to the United States
Constitution?

2
Those questions, addressed by legal scholars in a slew of recent

law review articles,
3
have been the subject of an ongoing "political correctness"

4

inferiority; 2. [t]he message is directed against a historically oppressed group; and 3. [t]he message

is persecutorial, hateful, and degrading." Man J. Matsuda, Public Response To Racist Speech:
Considering The Victim's Story, 87 MICH. L. REV. 2320, 2357 (1989).

Professor Gerald Gunther has described hate speech as "speech expressing hatred or bias

toward members of racial, religious, or other groups." Gerald Gunther, Constitutional Law
1 134 (12th ed. 1991). According to Professor Rodney Smolla, to use hate speech is to

attack another because of his or her racial, ethnic, religious, or sexual identity . . . [and]

is not to engage in mere dissent against the whole. Such an attack is rather to separate

out certain members of the whole and make them targets, degrade them, strip them of

their humanity, and set out others against them.

Rodney A. Smolla, Free Speech in an Open Society 151 (1992) [hereinafter Smolla, Free

Speech]. See also Rodney A. Smolla & Melville B. Nimmer, Smolla and Nimmer on
Freedom of Speech: A Treatise on the First Amendment § 6.01 [1], at p. 6-3 (1994) (hate
speech is "the generic term that has come to stand for verbal attacks based on race, ethnicity,

religion, and sexual orientation or preference"); Nelson v. Streeter, 16 F.3d 145, 149 (7th Cir. 1994)

(hate speech codes are "designed to shield groups perceived as vulnerable from offensive, hurtful,

and wounding speech").

2. U. S. Const, amend. I ("Congress shall make no law . . . abridging the freedom of

speech . . . .").

3

.

See, e.g. , J. M. Balkin, Some Realism About Pluralism: Legal Realist Approaches to the

First Amendment, 1990 DUKE L. J. 375; Cynthia G. Bowman, Street Harassment and the Informal

Ghettoization of Women, 106 Harv. L. Rev. 517 (1993); J. Peter Byrne, Racial Insults and Free

Speech Within the University, 79 GEO. L. J. 399 (1991); Richard Delgado, Campus Antiracism

Rules: Constitutional Narratives in Collision, 85 Nw. U. L. REV. 343 (1991) [hereinafter Delgado,

Campus Antiracism Rules]; Richard Delgado, Words That Wound: A Tort Action For Racial

Insults, Epithets, and Name-Calling, 17 Harv. C.R.-C.L. L. Rev. 133 (1982) [hereinafter Delgado,

Words That Wound]; Kent Greenawalt, Insults and Epithets: Are They Protected Speech?, 42

RUTGERS L. Rev. 287 (1990); David Kretzmer, Freedom ofSpeech and Racism, 8 CARDOZO L.

Rev. 445 (1987); Charles R. Lawrence III, IfHe Hollers Let Him Go: Regulating Racist Speech

On Campus, 1990 DUKE L. J. 43 1 [hereinafter Racist Speech on Campus]; Frederick M. Lawrence,

Resolving the Hate Crimes/Hate Speech Paradox: Punishing Bias Crimes and Protecting Racist

Speech, 68 NOTRE Dame L. REV. 673 (1993) [hereinafter Hate Speech Paradox]; Massey, supra

note 1 ; Martha Minow, Speaking and Writing Against Hate, 1 1 CARDOZO L. Rev. 1393 (1990);

Rodney A. Smolla, Rethinking First Amendment Assumptions About Racist And Sexist Speech, Al

WASH. & LEE L. Rev. 171 (1990); Nadine Strossen, Regulating Racist Speech On Campus: A
Modest Proposal?, 1990 DUKE L. J. 484; Ronald Turner, Hate Speech and the First Amendment:

The Supreme Court's R.A.V. Decision, 61 TENN. L. Rev. 197 (1993); James Weinstein, A

Constitutional Roadmap to the Regulation ofCampus Hate Speech, 38 WAYNE L. REV. 163 (1991).
4. See generally ARE YOU POLITICALLY CORRECT?: DEBATING AMERICA'S CULTURAL

Standards (Francis J. Beckwith & Michael E. Bauman eds., 1993). Some have argued that leftists
have attempted "to impose an ideological orthodoxy on students and faculty, under the rubric of

'political correctness."' See generally CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE



1995] HATE-SPEECH HARMS 259

debate between those who believe that hate speech must be protected under the
First Amendment, and those who contend that hate speech can be regulated under
the First and Fourteenth Amendments.

5

Among the questions raised in the hate speech debate are the following: Is
there an appropriate balance between one person's constitutionally protected

speech and another person's constitutionally protected right to "equality"?
6 Does

Speech 197 (1993). Professor Stanley Fish has written that perhaps the most stunning success of

neoconservatives "has been the production (in fact a reproduction), packaging, and distribution of

the term 'political correctness.'" Stanley Fish, There's No Such Thing as Free Speech 8

(1994).

The phrase [political correctness] is a wonderfully concise indictment that says that a

group of unscrupulous persons is trying to impose its views on our campus populations

rather than upholding views that reflect the biases of no group because they are common

to everyone. It is these commonly shared views, we are told, that are really correct,

while the views of feminists, multiculturalists, Afrocentrists, and the like are merely

politically correct, correct only from the perspective of those who espouse them.

Id. Professor Fish argues that political correctness "is not the name of a deviant behavior but of the

behavior that everyone necessarily practices." Id. at 9. Thus, debates between opposing parties are

not "debates between political correctness and something else, but are between competing versions

of political correctness." Id. See also RICHARD A. POSNER, OVERCOMING LAW 7 (1995)
(describing political correctness as a "game of faith" in which "the empirical investigation of racial

and sexual differences is rejected"); Richard Delgado, Rodrigo's Ninth Chronicle: Race, Legal

Instrumentalism, and the Rule of Law, 143 U. PA. L. REV. 379, 406 (1994) (discussing the

detractors of political correctness, Professor Delgado states that "[p]olitical correctness is little more

than a modern, sanitized, prettified version of an old term. It means one who sympathizes with the

Blacks, who takes their point of view").

5. U.S. Const, amend. XIV, § 1 (no state shall "deny to any person within its jurisdiction

the equal protection of the laws").

6. See Delgado, Campus Antiracism Rules, supra note 3, at 344-46; Kenneth Karst,

Equality as a Central Principle in the First Amendment, 43 U. CHI. L. Rev. 20 (1978). The hate

speech debate features two camps which see the world differently. The first camp approaches the

issue of hate speech regulation as a free speech question.

If one places speech at the center, a number of things immediately follow. The hate

speech rule advocates are placed on the offensive, seen as aggressors attempting to

curtail a precious liberty. The burden shifts to them to show that the speech restriction

is not content-based, is supported by a compelling interest, is the least restrictive means

of promoting that interest, and so on.

Richard Delgado & Jean Stefancic, Essay I: Hateful Speech, Loving Communities: Why Our
Notion of "A Just Balance" Changes So Slowly, 82 CAL. L. REV. 851, 851-52 (1994) [hereinafter

Delgado & Stefanic, Essay /]. Free speech advocates will be concerned about slippery slopes and
the dangerous and censorious administrator who may impose "his or her notion of political

orthodoxy on a campus climate that ought to be as free as possible . . . ." Id. at 852.

The second group approaches the hate speech issue by placing equality at the center of the

controversy and maintains that "free speech advocates [must] show that the hate-speaker's interest

in hurling racial invective rises to the requisite level of compellingness. They will insist that this



260 INDIANA LAW REVIEW [Vol. 29:257

the First Amendment and the Enlightenment value of freedom of expression7

protect hate speech from governmental regulation? Do the Fourteenth
Amendment and the liberty and equality principles expressed therein provide a
constitutional basis for the regulation of hate speech?

8 How should we weigh and

interest be advanced in the way least damaging to equality, and they, too, will raise line-drawing

and slippery slope concerns, but from the opposite direction." Id. at 852-53. Placement of either

free speech or equality at the center of the hate speech debate is critical to the regulation issue. For

instance, if an individual

places at the center of [her] belief system the notion that all language should be free and

that equality must accommodate itself to that regime, then all equality arguments but the

most moderate will appear extreme and unjust, constrained as they are by our canonical

language. The canon defines the starting point, the baseline from which we decide what

other messages, ideas, concepts, and proposals are acceptable. Only moderate messages

that effect minor incremental refinements within the current regime pass that test. . . .

Reason and argument are apt to prove unavailing; the point of the canon is to define

what is a reasoned, just, principled demand. Because hate speech rules fall outside this

boundary, if one begins (as we do) with a free speech paradigm, reason fails and the

status quo prevails.

Id. at 864 (footnote omitted). See also Richard Delgado & Jean Stefancic, The Social Construction
o/Brown v. Board of Education: Law Reform and the Reconstructive Paradox, 36 Wm. & Mary
L. Rev. 547, 553 (1995) [hereinafter Delgado & Stefancic, The Social Construction of Brown] (the
right to say whatever is on one's mind emanates from the First Amendment, and the right to

protection from racial insult emanates from the Fourteenth Amendment).

7. See John Milton, The Areopagitica (Everyman's Library ed. 1927). Of course,

Milton's "well-advertised tolerance did not extend to the thought that he hated." Leonard Levy,

Emergence of a Free Press 94 (1985). For Milton, Catholics were excluded from the free

expression principle:

I mean not tolerated popery, and open superstition, which as it extirpates all religions

and civil supremacies, so itself should be extirpate . . . that also which is impious or evil

absolutely against faith or manners no law can possibly permit, that intends not to unlaw

itself.

Melton, supra, at 37. See also Fish, supra note 4, at 103 (after celebrating the virtues of toleration

and unregulated publication, Milton "catches himself up short and says, of course I didn't mean

Catholics, them we exterminate").

8. See Akhil R. Amar, The Supreme Court, 1991 Term—Comment: The Case of the
Missing Amendments: R.A.V. v. City of St. Paul, 106 Harv. L. Rev. 124 (1992) (discussing the

Supreme Court's decision in R.A.V. from the doctrinal perspective of the Reconstruction

Amendments). A Fourteenth Amendment, equal protection approach to hate speech would provide
a cause of action where a state school refused to protect students of color from harassment having

analogues to other forms of harassment or torment from which white students were protected. See

Stephen L. Carter, Racial Harassment as Discrimination: A Cautious Endorsement of the Anti-

Oppression Principle, 1991 U. Chi. LEGAL F. 13, 14. Instead of focusing on the question of

whether certain hate speech is protected by the First Amendment, the Equal Protection question

would be whether a public school's failure to prevent or address incidents of hate speech would

amount to a violation of the Fourteenth Amendment. Id. at 19. Professor Carter, calling for the



1 995] HATE-SPEECH HARMS 26

1

integrate the Free Speech and Equal Protection Clauses and the ideal and

imperative of equal rights of and for all persons?
9 Why does the United States

stand "virtually alone in extending freedom of expression to what has come to be
called hate speech"?

10

Others have addressed the foregoing questions, and I do not rehearse their

arguments or analyses here. Rather, I inquire into two significant matters

pertaining to the question of the constitutionality of any hate speech regulation: (1)
the degree to which some speech, expression, and communicative acts are deemed

harmful and are actually regulated in this society; and (2) the harms caused by

certain hate speech,
11

I then ask why some harmful speech is regulated, without
debate or controversy or cries for First Amendment protection, while hate speech
regulation evokes cries of censorship and political correctness and abridgement of

application of an anti-oppression principle (under which equal protection is interpreted as "directed

not against particular racial classifications as such, but against systematic structures of racial

oppression, of which racial classifications are essential building blocks"), argues that that principle

"would in most instances consider a state's failure to protect its black students as exactly the literal

denial of 'equal protection' with which the literature teaches us that those who wrote and ratified

the Fourteenth Amendment were most centrally concerned." Id. at 22, 41.

9. The tension between the constitutional values of free speech and equality has "divided

old allies and revealed unrecognized or unacknowledged differences in the experience, perceptions,

and values of members of longstanding alliances. It has also caused considerable soul-searching

by individuals with long-time commitments to both the cause of political expression and the cause

of racial equality." Racist Speech on Campus, supra note 3, at 434. Professor Catharine

MacKinnon, arguing that the "law of equality and the law of freedom of speech are on a collision

course in this country," has written that

[understanding that there is a relationship between these two issues—the less speech

you have, the more speech of those who have it keeps you unequal; the more the speech

of the dominant is protected, the more dominant they become and the less the

subordinated are heard from—is virtually nonexistent.

Catharine A. MacKinnon, Only Words 71, 72-73 (1993).
10. Jean Stefancic & Richard Delgado, A Shifting Balance: Freedom of Expression and

Hate-Speech Restriction, 78 IowaL. Rev. 737, 739 (1993) (discussing Kevin Boyle, Overview of

a Dilemma, in STRIKING A BALANCE: HATE SPEECH, FREEDOM OF EXPRESSION AND NON-

DISCRIMINATION 1 (Sandra Coliver ed. 1992)).

1 1

.

While I principally focus on these two matters, it should be noted that the literature on

the hate speech regulation question contains at least three separate approaches. "The civil

libertarian approach concludes that suppression of hate speech is generally an impermissible

restriction upon the content of speech, except where the speech is directed toward an individual

.

. . where an immediate breach of the peace is likely." Egalitarians argue that the suppression of hate

speech will address and remedy the harm resulting from such speech, and that the harm is usually

"sufficiently grave to outweigh the harm resulting from its suppression." Accommodationists

generally endorse measures that prohibit "'only targeted vilification of a person on the basis of race,

gender, religion, ethnic origin, sexual orientation, or other protected characteristics.'" See Massey,

supra note 1 , at 106-07 (quoting Toni M. Massaro, Equality and Freedom ofExpression: The Hate

Speech Dilemma, 32 Wm. & Mary L. Rev. 21 1, 213 (1991)).



262 INDIANA LAW REVIEW [Vol. 29:257

a "sacred" constitutional right to be a hate-speaker.

The first matter (the degree of the actual regulation of some harmful speech)
merits discussion because it is often said that speech is "free"

12
and that

government may not regulate speech on the basis of the speaker's viewpoint. Self-
described free speech absolutists take the view that, no matter how offensive,
speech can never be, and should not be, controlled or regulated. As discussed
below, the absolutist position has not been accepted by the courts, and the

government does in fact regulate certain speech and even permits viewpoint

discrimination in certain circumstances.
13

As to the second matter (the harms caused by certain hate speech), it is often
said that society must tolerate hate speech because the benefits of "free" (non-

regulated) hate speech outweigh the harms of hate speech (what I call the "frown

or grin but in any event bear it" view). If it is true that hate speech does harm the
targets of the communication,

14
then an instance of hate speech may result in some

level of harm. When the task of assessing the harms caused by hate speech falls
to governmental entities and the courts, judicial rulings on hate speech questions

will necessarily be influenced by the judge's or factfinder's assumptions, beliefs,

and opinions with respect to the arguments presented concerning the harms of the

challenged speech. The actual and potential effects of hate speech assume critical
importance and should be the subject of explicit discussion by those who write the
laws and rules regulating hate speech as well as the courts engaged in the review

of the constitutionality of hate speech regulations.

This Article joins "those who are reluctant to cede the framing of the hate-
speech debate to those who have fashioned the so-called pertinent questions since
its inception,"

15
and does so from an understanding "that the central meaning of

the First Amendment lies not in what we see, but in what we ignore." 16 The

12. I agree with Professor Larry Alexander that no speech is "free," for "[sjpeech and

listening are costly activities." Larry A. Alexander, Trouble on Track Two: Incidental Regulations

ofSpeech and Free Speech Theory, 44 HASTINGS L. J. 921 , 933-34 (1993). In the context of hate

speech, speech is surely not "free" for those persons subjected to racist or sexist slurs and epithets.

As the targets of hate speech bear the costs of hearing, experiencing, and dealing with such speech,

those who argue against regulation effectively require the targets to suffer harms in the name of

others' freedoms.

13. See infra Part II.

14. "The capacity of speech to cause injury in diverse ways contends with the goal of strong

free speech (and free press) protection, and it is a commonplace that robust free speech systems

protect speech not because it is harmless, but despite the harm that it may cause." Schauer, supra

note 1 , at 1 321 . See also Balkin, supra note 3, at 414 (noting that the right of free speech "includes

the government's grant of power to private citizens to harm others through the exercise of their right

to speak").

15. Robin D. Barnes, Standing Guard for the P.C. Militia, or, Fighting Hatred and

Indifference: Some Thoughts on Expressive Hate-Conduct and Political Correctness, 1992 U. ILL.

L. REV. 979,980-81.

16. Frederick Schauer, Harry Kalven and the Perils ofParticularism, 56 U. CHI. L. REV.

397, 398 (1989) (book review).



1995] HATE-SPEECH HARMS 263

"mechanical jurisprudence and case law laid down in an earlier era will not hold
the line much longer,"

17
and many who previously subscribed to First Amendment

formalism have now turned to First Amendment realism and urge that "even if
First Amendment doctrine permits regulating hate speech, wisdom and good
policy counsel against it."

18
Thus, instead of blindly accepting the general view

that all speech is "free" in the sense that society must not prohibit or limit it, I start

from the observation that certain speech is regularly restricted because society,

speaking through the courts, legislatures, and other institutions, has determined

that particular harms caused by particular speech can and indeed should be

regulated, and can even be prohibited without running afoul of the free speech

guarantee.
19

If that observation is correct, we should not quickly rush to the
conclusion that hate speech cannot be proscribed on the sole ground that the First

Amendment protects and guarantees the freedom of speech. The question we
must ask is whether the harms of certain hate speech are such that that speech can

be regulated in the same way that other forms and categories of speech have been
subjected to constitutional restrictions.

20

The question examined here is whether hate speech can be lawfully and
constitutionally regulated because of the harm caused by such speech; whether it

should be regulated is another matter altogether.
21

The constitutionality of hate

speech regulation may be questioned, even if it is concluded that hate speech is
harmful. Identification of possible or actual harms requires an assessment of other

factors, such as the degree of harm, the specific expression or mode of expression
to be regulated, the degree and diminution of dialogue and critique, and the degree

of comfort regarding the assurance that the regulators will act appropriately. Thus,

a finding of harm does not definitively resolve the constitutional question, but

would lead to other critical questions which may better inform constitutional
analysis and adjudication.

This Article is divided into the following parts: Part I provides a brief

overview of approaches to the First Amendment and looks at the established
limitations on government regulation of speech, especially the viewpoint

discrimination restriction.
22

Part II discusses selected decisions by the United

17. Richard Delgado & David Yun, The Neoconservative Case Against Hate-Speech
Regulation—Lively, D'Souza, Gates, Carter, and the Toughlove Crowd, 47 VAND. L. Rev. 1807,
1809(1994).

18. Id.

19. See infra Part II.

20. See infra Part III.

21.

[F]orces, both on the left and the right who oppose hate-speech regulation are beginning

to hedge their bets. While they earlier argued that hate-speech rules were flatly

unconstitutional, now they are beginning to argue in the alternative: Even if the rules

are constitutional, they are a bad idea, and campuses and other institutions should not

enact them even if they legally can do so.

Delgado & Yun, supra note 17, at 181 1-12.
22. See infra notes 29-97 and accompanying text.



264 INDIANA LAW REVIEW [Vol. 29:257

States Supreme Court that refer to some notion of harm as part of the Court's First
Amendment analysis. 23 Part III discusses hate speech and the harms thereof, and
asks whether certain harms are sufficient to warrant regulation similar to the
regulations deemed permissible and constitutional in other contexts.24 Part IV
discusses the application of a harms-based analysis to hate speech questions,

reviews a recent decision by the Supreme Court of Canada in which that court
applied a harms-based analysis in upholding certain laws restricting hate speech,

25

considers objections to and obstacles facing the adoption of the harms-based

rationale by the courts, and concludes that, with the exception of assaultive speech

directed to specific targets in a face-to-face and confrontational manner, a harms-

based approach to and analysis of hate speech presents many problems that may
render that approach unworkable.

26
Part V then turns to the issue of the regulation

of hate speech in the specific context of colleges and universities.
27

This Article

concludes with observations on the role of injury and harm in the hate speech
debate, with proponents arguing that hate speech causes real injury to the targets

of the speech, and opponents dismissing the claimed injuries as "merely dignitary,

and not a real harm."
28

I. Free(?) Speech

A. Approaches To The First Amendment

The First Amendment provides that "Congress shall make no law . . .
abridging the freedom of speech . . . ,"

29 A "safeguard against governmental
suppression of points of view with respect to public affairs,"

30
the First

Amendment generally prevents the government from proscribing speech or
expressive conduct because of the government's disapproval of the ideas

expressed.
31

Thus, governmental regulation or prohibition of speech, "on the sole

ground that some or many in the audience find what is said or written offensive,
abridge[s] essential free speech interests."

32

"[F]ree speech values are plural and diverse rather than unitary."
33

Scholars

23. See infra notes 98-238 and accompanying text.

24. See infra notes 239-299 and accompanying text.

25. See Regina v. Keegstra, 3 S.C.R. 697 (Can. 1990), discussed infra at notes 320-59 and

accompanying text.

26. See infra notes 378-430 and accompanying text.

27. See infra notes 431-505 and accompanying text.

28. Delgado & Stefancic, The Social Construction ofBrown, supra note 6, at 553.
29. U.S. Const, amend. I.

30. Cass R. Sunstein, Neutrality In Constitutional Law (With Special Reference To

Pornography, Abortion, And Surrogacy), 92 COLUM. L. Rev. 1, 22 (1992) (footnote omitted).

31. See R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992); Texas v. Johnson, 491 U.S.

397,401 (1989).

32. David A. J. Richards, Toleration and the Constitution 171 (1986).

33. Cass R. Sunstein, Incommensurability and Valuation in Law, 92 MICH. L. REV. 779, 83

1



1995] HATE-SPEECH HARMS 265

have spilled much ink trying to "identify a single value animating the protection
of free speech like democracy, self-realization, [and] autonomy."

34
"But it would

be most surprising if free speech were connected with any single value. This is

true for most constitutional rights, which serve a range of purposes."
35

Given the

plural speech values, it can be anticipated that "free speech doctrine is not

particularly principled in any natural sense. The Court has created an array of
doctrinal boxes for speech issues, and determines the result by picking the box.

Some boxes protect speech strongly, others do not."36

One recurring debate in First Amendment jurisprudence involves three
questions: (1) whether the First Amendment is an absolute; (2) whether the
competing interests of the speaker and the government should be balanced; and

(3) whether a categorization approach to the free speech question is preferable.
37

Absolutists take the view that the First Amendment's declaration that "Congress
shall make no law . . . abridging the freedom of speech" means just that:
"Congress shall make NO LAW abridging speech."38 Justice Hugo Black
counseled that the language of the First Amendment meant literally that Congress
could not make any law abridging speech "without any 'ifs' 'buts' or
'whereases.'"

39
Justice Black believed that "the First Amendment's unequivocal

command that there shall be no abridgement of the rights of free speech and
assembly shows that the men who drafted our Bill of Rights did all the 'balancing'

(1994).

34. Id. See also Thomas I. Emerson, Toward a General Theory ofthe First Amendment, 72

Yale L. J. 877 (1963); Martin H. Redish, The Value of Free Speech, 130 U. Pa. L. Rev. 591

(1982); Turner, supra note 3.

35. Sunstein, supra note 33, at 831 (footnote omitted). See also Steven Shiffrin, The First

Amendment and Economic Regulation: Awayfrom a General Theory of the First Amendment, 78

Nw.U.L.Rev. 1212(1983).

36. Mary Becker, Conservative Free Speech and the Uneasy Casefor Judicial Review, 64

U. Colo. L. Rev. 975, 1019 (1993).

37. GUNTHER, supra note 1 , at 1004-07.

38. Steven H. Shiffrin, The First Amendment, Democracy, and Romance 13 (1990).
See Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse 42-43

(1991). There are at least two types of absolutism. The first, absolute absolutism, maintains that

there are no permissible restraints or penalties on speech. See SMOLLA, Free SPEECH, supra note

1, at 23. Under the second category of absolutism, qualified absolutism, the "freedom of speech"

is absolutely protected but is defined more narrowly such that government has some room to

maneuver in regulating certain forms of communications. Id. at 23-24.

Absolutists claim, inter alia, with few or no exceptions: that any effort to regulate speech

threatens the principle of free expression; that the First Amendment embodies a conception of

neutrality among different points of view, forbidding governmental line-drawing between speech

that it likes and speech that it does not like; that the free speech principle is not limited to political

speech; that any restrictions on speech may expand and result in other restrictions and acts of

censorship; and that balancing should play no role in First Amendment law. SUNSTEIN, supra note

4, at 5-7.

39. Beauharnais v. Illinois, 343 U.S. 250, 275 (1952) (Black, J., dissenting).



266 INDIANA LAW REVIEW [Vol. 29:257

that was to be done . . . ."
40

Another jurist, Justice William Douglas, was of the
view that the "ban of 'no' law" that abridges First Amendment rights is "total and
complete."

41
It should be noted, however, that the absolutist view has been

rejected by the Supreme Court,42 and it is now "an entrenched feature of first
amendment doctrine that the coverage of the first amendment does not extend to
all linguistically communicative acts."

43
"First Amendment absolutism has never

entailed absolute devotion to free expression; the question has always been where

to draw the line."
44

The balancing theory posits that in the event of a "conflict between speech and
other social values, the weight of the speech interest is balanced against the weight

of the competing interest" in the particular case before the court.
45 "Where First

Amendment rights are asserted . . . resolution of the issue always involves a
balancing by the courts of the competing private and public interests at stake in the

particular circumstances shown."
46

In one Supreme Court decision, Justice Felix
Frankfurter stated:

The demands of free speech in a democratic society as well as the
interest in national security are better served by candid and informed

weighing of the competing interests, within the confines of the judicial

process, than by announcing dogmas too inflexible for the non-Euclidian

problems to be solved.
47

Critics of the balancing approach argue that balancing is too deferential to

governmental views and judgments and provides inadequate guidance to

decisionmakers,
48

leads to uncertainty, and fails to insulate the judiciary from the

40. Konigsberg v. State Bar of California, 366 U.S. 36, 61 (1961) (Black, J., dissenting).

For a discussion of Justice Black's First Amendment views, see Roger K. Newman, Hugo Black:

A Biography (1994).
41

.

CBS v. Democratic Nat'l Comm., 412 U.S. 94, 156 (1973) (Douglas, J., concurring).
42. Konigsberg, 366 U.S. at 49.

43. Frederick Schauer, The Aim and the Target in Free Speech Methodology, 83 Nw. U. L.

REV. 562, 562(1989).

44. Henry Louis Gates, Jr., Truth or Consequences: Putting Limits on Limits, ACADEME,

Jan.-Feb. 1994, at 14.

45. Smolla, Free Speech, supra note 1, at 39. There are at least two types of

balancing—ad hoc balancing and definitional balancing. Under ad hoc balancing, speech cases are
to be decided by considering the particular circumstances in specific cases. Under definitional

balancing, courts are not to define free speech by resort to absolutism or by focusing on the

circumstances of an individual case; rather, courts must assess the competing interests in the general

run of cases and formulate rules covering those cases. See Smolla & NlMMER, supra note 1, §
2.07, at p. 2-61 ; Shiffrin, supra note 38, at 14. The balancing referred to in the text is ad hoc

balancing.

46. Barenblatt v. United States, 360 U.S. 109, 126 (1959).

47. Dennis v. United States, 341 U.S. 494, 524-25 (1951) (Frankfurter, J., concurring).

48. GUNTHER, supra note 1, at 1006.



1 995] HATE-SPEECH HARMS 267

passions of the public.
49

The third approach, known as categorization, sets out bright line rules that
distinguish speech within the protection of the First Amendment from speech
outside the protection of the Amendment.50 Thus, the category of political speech
is protected

51
and other categories of speech, such as fighting words

52
and

obscenity,
53

are not protected. Categorization may be acceptable, or at least more
acceptable, when it rests upon adequate explanations of why a particular category
is protected or unprotected, but categorization is also subject to the criticism that

it consists largely of conclusory statements, covert balancing, and

overgeneralizations.
54

Although application of the differing categories of absolutism, balancing, and

categorization in hate speech cases is beyond the scope of this Article, it is worth

noting that under the pure absolutist view, the government could not lawfully

regulate hate speech or any other speech. Under a balancing test, courts would

weigh the free speech interest (in that instance, the asserted "right" of the hate

speaker) against the weight of the competing interest (such as preservation of the

peace) or equality value. Under a categorization approach, the question would be

whether hate speech fell within the protection of the First Amendment or whether
some defined hate speech category was an unprotected class of speech like
fighting words or obscenity.

Once the pure absolutist approach is rejected, the axiom that speech is "free,"

meaning that the speech cannot be lawfully regulated by law, is not a sufficiently

accurate statement of the law. Indeed, there are many exceptions to the protection
of the First Amendment.55 One cannot legally infringe another individual's

49. Smolla & Nimmer, supra note 1, § 2.07, at p. 2-61. Professor Kent Greenawalt has
argued that when ad hoc balancing includes substantial deference to the legislature, "it is subject

to the fatal objection that its practical bite is almost as slight as that of the rational-basis test. If the

ultimate criterion is whether the legislature might reasonably have balanced the factors as it did,

only rarely will a court give a negative answer." KENT GREENAWALT, SPEECH, CRIME, AND THE

Uses of Language 222 (1989).

50. GUNTHER, supra note 1, at 1007; Frederick Schauer, Codifying The First Amendment:

New York v. Ferber, 1982 Sup. Ct. Rev. 285, 302.

5 1

.

Political speech, considered by many to be high value speech, has received special First

Amendment protection. One critique of this valuation of political speech posits that in light of the

"power that judges and politicians have to affect the content of legal norms, it is plausible to

interpret the special protection political speech has received in the past as the result of judicial bias

toward the importance of public life." Alon Harel, Free Speech Revisionism: Doctrinal and

Philosophical Challenges, 74 B.U. L. Rev. 687, 692 (1994) (book review). See also R. H. Coase,

The Economics ofthe First Amendment: The Marketfor Goods and the Marketfor Ideas, 64 AM.

Econ. Rev. 384 (1974) (those who are protected by the protection of political speech play a key

role in fashioning that protection).

52. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).
53. Miller v. California, 413 U.S. 15 (1973).

54. Gunther, supra note 1 , at 1007.

55. See generally Frederick Schauer, Exceptions, 58 U. CHI. L. Rev. 871 (1991); Schauer,



268 INDIANA LAW REVIEW [Vol. 29:257

copyright or trademark.
56 One cannot use the First Amendment as a shield to

allow the formation of an unlawful conspiracy,
57

lie while under oath,
58

disclose

official state secrets,
59
engage in expression that breaches the peace,

60 make certain
comments as a lawyer on pending cases,

61
state that a judge is a "buffoon" or

"probably one of the worst judges in the United States,"
62

or make harassing
telephone calls.

63
Thus, to argue that the First Amendment is a "seamless web"

ignores the large number of exceptions that come into play, especially where the
interests of powerful individuals or groups are at issue.

64

If exceptions to First Amendment protection are so prevalent, why is the
suggestion that certain hate speech regulations do not violate the First Amendment
met with consternation?

65
In light of the foregoing, it is more accurate to say that

supra note 43 (discussing the many acts of "speech" that remain untouched by the coverage of the

First Amendment); infra notes 84-96 and accompanying text.

56. Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985).
57. Zurcher v. Stanford Daily, 436 U.S. 547 (1978).

58. See Richard Delgado & Jean Stefancic, Images of the Outsider in American Law and
Culture: Can Free Expression Remedy Systemic Social Ills?, 11 CORNELL L. REV. 1258, 1286

(1992).

59. Snepp v. United States, 444 U.S. 507 (1980).

60. Schenck v. United States, 249 U.S. 47 (1919).

61. Gentile v. State Bar of Nevada, 501 U.S. 1030(1991).

62. See Richard Reuben, Lawyer's License at Risk, A.B.A. J., March 1994, at 31. A Los
Angeles lawyer made these statements about a federal judge in the United States District Court for

the Central District of California. The judge in question referred the matter to the chief judge of

the Central District of California, who referred the matter to the district's Standing Committee on

Discipline. Id.

63. See, e.g., State v. Gattis, 730 P.2d 497 (N.M. Ct. App. 1986). But see People v. Klick,

362 N.E.2d 329 (111. 1977) (state telephone harassment law was unconstitutionally overbroad). For

a discussion of the First Amendment and telephone harassment, see Alan E. Brownstein, Hate

Speech and Harassment: The Constitutionality of Campus Codes that Prohibit Racial Insults, 3

Wm.&MaryBdllofRts.J. 179, 192-206(1994).

64. Delgado, supra note 4, at 392.

The wealthy and powerful are considered to have a kind of property interest in their

reputation, so speech that damages them is compensable even though words are the sole

means of causing the harm. And the same is true for words that violate a copyright,

communicate a threat, form a monopoly, or constitute misleading advertising.

Disrespectful words uttered to a judge, teacher, police officer, or other authority figure

are also punishable, as are untruthful words uttered under oath or words that disseminate

an official secret. Each of these exceptions or special doctrines exists to promote the

interests of a powerful group such as the military or consumers.

Id. at 392-93 (footnotes omitted).

65. Delgado & Stefancic, supra note 58, at 1286. On that point, Delgado and Stefancic
state:

Yet the suggestion that we create new exception [sic] to protect lowly and vulnerable

members of our society, such as isolated, young black undergraduates attending



1995] HATE-SPEECH HARMS 269

speech can be regulated in certain circumstances, such as when the weight of a
competing interest or value is deemed to outweigh the asserted speech interest, or
where the speech at issue falls within a recognized unprotected category. Thus,

it is not enough to say that hate speech is protected expression simply because it

is speech, or that any efforts to regulate hate speech are per se unconstitutional, for

the analysis cannot begin and end with mere labeling or categorization. Important

questions must be posed and significant arguments must be made and considered
before it can be concluded that a particular hate speech regulation is or is not

constitutional.

B. Restrictions

When can speech be regulated consistent with the First Amendment? As
noted by Justice John Paul Stevens, the term "the freedom of speech" could not

be "co-extensive with the category of oral communications that are commonly
described as 'speech' in ordinary usage."

66
Thus, the "Framers did not intend to

provide constitutional protection for false testimony ... or conspiracies among
competitors to fix prices. The Amendment has never been understood to protect
all oral communication, no matter how unlawful, threatening, or vulgar it may
be."

67
Tested in the "crucible of litigation,"

it is now settled that constitutionally protected forms of communication
include parades, dances, artistic expression, picketing, wearing arm
bands, burning flags and crosses, commercial advertising, charitable

solicitation, rock music, some libelous false statements, and perhaps even
sleeping in a public park.

68

Thus, some speech and expression can be constitutionally regulated, and some
speech and expression is constitutionally protected. How do we distinguish the
former from the latter? What methodologies are used by the courts in determining
whether certain speech falls within or outside the protection of the First

Amendment?
There are at least three specific and recognized restrictions on speech:

content-neutral restrictions, content-based restrictions, and viewpoint-based

restrictions.
69 Where restrictions are content-neutral, communications are

dominantly white campuses, is often met with consternation: the First Amendment must

be a seamless web; minorities, if they knew their own self-interest, should appreciate

this even more than others. This one-sidedness of free-speech doctrine makes the First

Amendment much more valuable to the majority than tolhe minority.

Id. (footnote omitted).

66. John Paul Stevens, The Freedom ofSpeech, 102 YALE L. J. 1293, 1296 (1993).

67. Id.

68. Id. at 1298 (footnotes omitted).

69. See SUNSTEIN, supra note 4, at 1 1-14; Cass R. Sunstein, Words, Conduct, Caste, 60 U.

Chi. L. Rev. 795, 796 (1993) [hereinafter Words, Conduct, Caste]. One scholar has criticized this
tripartite system:



270 INDIANA LAW REVIEW [Vol. 29:257

restricted without regard to the message conveyed.
70

For example, a government

ban on billboards or a law forbidding all advertising on subways would be content-
neutral because all communications or messages (whether Republican or

Democrat, liberal or conservative, etc.) are treated the same; the ban does not turn

on and is not affected by the content of the speech, and the restriction applies

across the board to all speakers affected by the restriction.
71

"Content-neutral

restrictions are evaluated through a balancing test, one that looks at the extent of

the harm, the existence of alternative outlets, the availability of less restrictive

means of regulation," and other factors.
72

Content-based (and viewpoint neutral) restrictions limit communications

because of the message conveyed, and are presumed unconstitutional and are
permitted in limited circumstances.

73
For instance, the content of the speech is

critical when government bans political speech in a certain place or implements
a rule stating that persons may not discuss baseball or politics or matters involving
race, for "we . . . have to know what the speech is in order to know whether it is
regulated."

74
Restriction of speech on the basis of content carries with it the very

real risk that government may prefer some communications and messages over
others. Given that risk, the government's "action will be subjected to a more

stringent standard than when it treats all messages equally, say by banning all
billboards."

75

However, the Supreme Court routinely departs from the general rule against

Sometimes the tripartite system is more than just redundant; it can in fact be damaging.

It allows mechanical resolution of cases and consequent lack of attention to important

conflicts between societal values and interests. Instead of engaging in a substantive

debate about the proper degree of shielding from potentially disruptive materials, such

as those with erotic content or a racist message, Sunstein (and others) have suggested

that such restrictions are invalid simply because they are content-based or viewpoint-

based. Sunstein concedes that there are cases in which viewpoint-based or content-

based restrictions are proper, but he believes that they must carry a presumption of

invalidity because he fears that such restrictions generally flow from hidden and

illegitimate government motives.

Harel, supra note 5 1 , at 702-03 (footnotes omitted).

70. See Geoffrey R. Stone, Restrictions ofSpeech Because ofits Content: The Peculiar Case

of Subject-Matter Restrictions, 46 U. Cm. L. REV. 81 (1978). See also Ward v. Rock Against

Racism, 491 U.S. 781, 791 (1989) ("The principal inquiry in determining content neutrality, in

speech cases generally and in time, place, or manner cases in particular, is whether the government

has adopted a regulation of speech because of disagreement with the message it conveys.").

7 1

.

Sunstein, supra note 4, at 1 1

.

72. Words, Conduct, Caste, supra note 69, at 796.

73. Id.

74. Sunstein, supra note 4, at 1 2.

75. Greenawalt, supra note 49, at 225. For an interesting discussion of the Supreme

Court's strict scrutiny analysis and content-based speech restrictions, see Eugene Volokh, Freedom

ofSpeech Beyond Strict Scrutiny, U. PA. L. REV. (forthcoming).



1995] HATE-SPEECH HARMS 271

content regulation.
76

For example, the Court has held that an election-day,

content-based ban on political speech within one hundred feet of a polling place

did not violate the First Amendment.
77 The Court upheld a federal regulation

prohibiting employees of federally funded family planning clinics from discussing

abortion with pregnant women.
78

In addition, public colleges and universities

routinely make, indeed must make, content-based distinctions in formulating and

carrying out their educational missions.
79

As to viewpoint-based restrictions,80 the government "makes the point of view
of the speaker central to its decision to impose, or not to impose, some penalty."

81

As noted by Professor Cass Sunstein:

The government might, for example, ban anyone from criticizing a war,
or from favoring homosexuality, or from speaking against the incumbent

President, or from arguing on behalf of affirmative action programs.

Here the government is trying to protect a preferred side in a debate and

to ban the side that it dislikes. A viewpoint-based restriction is
distinctive in the sense that it comes into effect only when a particular
viewpoint is expressed. We know that we are dealing with a viewpoint-
based restriction if and only if the government has silenced one side in

a debate.
82

Government discrimination on the basis of viewpoint can skew the public debate

on a particular issue by restricting the ability of one party to communicate its

message, with such discrimination often arising from governmental hostility to

certain ideas or other illegitimate governmental justifications.
83

If asked the general question whether government may regulate speech on the
basis of the viewpoint of the speaker, most respondents would answer in the

negative. Although that answer would be correct in certain instances, it would be

incorrect in many others. Some acts characterized as "speech" in ordinary

76. Stevens, supra note 66, at 1304.

77. Burson v. Freeman, 504 U.S. 191 (1992).

78. Rust v. Sullivan, 500 U.S. 173 (1991); Stevens, supra note 66, at 1304.

79. See infra Part III.

80. Viewpoint-based restrictions are a subset of content-based restrictions.

All viewpoint-based restrictions are, by definition, content-based; government cannot

silence one side in a debate without making content crucial. But not all content-based

restrictions are viewpoint-based. The key difference between a content-based and a

viewpoint-based restriction is that the former need not make the restriction depend on

the speaker's point of view.

Sunstein, supra note 4, at 12. See also Stevens, supra note 66, at 1309 ("[C]ontent discrimination

is not the same as viewpoint discrimination.").

8 1

.

Sunstein, supra note 4, at 1 2.

82. Id.

83. See Elena Kagan, Regulation ofHate Speech and Pornography After R.A.V., 60 U. CHI.

L.Rev. 873, 881 (1993).



272 INDIANA LAW REVIEW [Vol. 29:257

language are not protected by the First Amendment,84 and the Supreme Court has
validated laws incorporating viewpoint preferences by ignoring obvious forms of
such preferences.

85
Thus, viewpoint discrimination in the area of commercial

speech has been deemed lawful in certain contexts. For example, the government
lawfully bans the promotion of casino gambling

86
even though it allows

advertising opposing casino gambling. The government prohibits television
advertising promoting cigarette smoking but does not forbid television advertising

opposing smoking.
87

"[T]he opinion that cigarette smoking is harmful is a
viewpoint, just as is the opinion that people ought to smoke" is a viewpoint.88 The
government may choose to regulate airline advertising89 but not bus advertising.
And it may lawfully monitor solicitation by lawyers90 even though it does not
monitor solicitation by doctors.

The National Labor Relations Board restricts certain statements by employers
and unions where the statements violate the National Labor Relations Act

91
and

prohibits coercion and threats against employees during the "critical period"

preceding NLRB-conducted representation elections.92 The Securities and
Exchange Commission restricts the statements that may be made by the sellers of
securities and "imposes old-fashioned prior restraints, requiring government

preclearance before speech may reach the public."93 The Federal Communications

84. As noted by Professor Frederick Schauer:

[A] criminal defendant charged with participation in a bank robbery by virtue of having

communicated the combination of the bank's safe to the person who in fact opened the

safe benefits from no special presumptions or tests because the participation was

linguistically communicative. The defendant in a Sherman Act price-fixing case whose

sole activity consists of transmitting to a competitor the prices her company is about to

charge is treated the same way as any other antitrust defendant despite the fact that her

activities were restricted to speech used for the purpose of communicating information.

The securities laws engage in wholesale regulation of what can be said, how it can be

said, and when it can be said, and do so (except when a newspaper or magazine is

involved) totally outside of the purview of the first amendment. The same can be said

for laws regulating labor relations, in particular laws controlling both picketing and the

conduct of elections. To lie under oath violates the law even if the lie told turns out to

cause no harm whatsoever in the particular case, a result unexplainable if courtroom

testimony under oath were an activity covered by the first amendment.

Schauer, supra note 43, at 563 (footnotes omitted).

85. Kagan, supra note 83, at 875-76.

86. Posados de Puerto Rico Assoc, v. Tourism Co. of Puerto Rico, 478 U.S. 328 (1986).

87. SeelSU.S.C. § 1335(1994).

88. Schauer, supra note 43, at 566.

89. Morales v. Trans World Airlines, 504 U.S. 374 ( 1 992).

90. Florida Bar v. Went For It, Inc., 1 15 S. Ct. 2371 (1995); Ohralik v. Ohio State Bar

Ass'n, 436 U.S. 447(1978).

91. 29U.S.C. §§ 151-69(1994).

92. NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
93. SUNSTEEN, supra note 4, at 33. See generally NICHOLAS WOLFSON, CORPORATE First



1995] HATE-SPEECH HARMS 273

Commission regulates broadcasting under a "public interest" standard. 94

Government employment contracts with former employees who held security
clearances may constitutionally prohibit the former employees from publishing
certain subjects without a prepublication review because of a perceived danger to

national interests.
95

Thus, viewpoint discrimination is often permitted and is an

established and common part of the legal landscape.96

In the face of the widely held perception that viewpoint discrimination is

generally unconstitutional, why have some forms of viewpoint discrimination been
accepted and gone unchallenged? One answer may be that the "presence of real-
world harms obscures the existence of selectivity."

97
Because the desired

ends—including the prevention of the harms of smoking, gambling, fraudulent or
misleading commercial speech, threats to employees attempting to exercise their

statutory right to unionize, untrue or misleading proxy statements, etc.—may be
uncontroversial and accepted as mainstream propositions, the means of
accomplishing those ends are not considered to be problematic from a First

Amendment perspective.

II. Harmful Speech and the First Amendment

Salient exceptions to the First Amendment "all involve the concrete prospect
of significant—and involuntary—exposure to harm."98 There are abundant
examples of Supreme Court discussions of harm in First Amendment cases. In
Chaplinsky v. New Hampshire," the Court affirmed the conviction of Walter
Chaplinsky who said to a police officer, "[y]ou are a God damned racketeer" and
"a damned Fascist and the whole government of Rochester are Fascists or agents
of Fascists."

100 The Court held that the statute under which Chaplinsky was
charged did not violate the First Amendment.

101
The Court opined that "it is well

understood that the right of free speech is not absolute at all times and under all

Amendment Rights and the SEC ( 1 990).
94. SUNSTEIN, supra note 4, at 33.

95. Snepp v. United States, 444 U.S. 507, 511-12 (1980).

96. But see Danny J. Boggs, A Differing View on Viewpoint Discrimination, 1993 U. CHI.

Legal F. 45.

97. Sunstein, supra note 30, at 30.

98. Gates, supra note 44, at 14.

99. 315 U.S. 568(1942).

100. Id. at 569.

101. Id.

No person shall address any offensive, derisive or annoying word to any other person

who is lawfully in any street or other public place, nor call him by any offensive or

derisive name, nor make any noise or exclamation in his presence and hearing with

intent to deride, offend or annoy him, or to prevent him from pursuing his lawful

business or occupation.

Id. (citing Chapter 378, Section 2 of the Public Laws of New Hampshire).



274 INDIANA LAW REVIEW [Vol. 29:257

circumstances."
102

There are certain well-defined and narrowly limited classes of speech,

the prevention and punishment of which has never been thought to raise

any Constitutional problem. These include the lewd and obscene, the

profane, the libelous, and the insulting or 'fighting' words—those which

by their very utterance inflict injury or tend to incite an immediate breach

of the peace. It has been well observed that such utterances are no
essential part of any exposition of ideas, and are of such slight social

value as a step to truth that any benefit that may be derived from them is
clearly outweighed by the social interest in order and morality. "Resort

to epithets or personal abuse is not in any proper sense communication

of information or opinion safeguarded by the Constitution, and its

punishment as a criminal act would raise no question under that
instrument."

103

In the Court's view, the New Hampshire statute was "narrowly drawn and limited
to define and punish specific conduct lying within the domain of state power, the

use in a public place of words likely to cause a breach of the peace."
104

"Argument

is unnecessary to demonstrate that the appellations 'damn racketeer' and 'damn

Fascist' are epithets likely to provoke the average person to retaliation, and thereby

cause a breach of the peace."
105

The Chaplinsky Court identified several harms in its discussion of the New
Hampshire statute and the First Amendment. Certain speech may be
constitutionally regulated in order to prevent harm to "the social interest in order
and morality."

106
The state may act to prevent the harms of a breach of the peace,

fighting, violence, retaliation, and the infliction of injury to the addressee of

fighting words. Regulation of such words to prevent those harms was not

unconstitutional, the Court said, and Walter Chaplinsky was lawfully prosecuted

by the state for making the above-quoted statements.

In 1949, the Court decided Terminiello v. City of Chicago?
01

Arthur

102. Id. at 571.

103. Id. at 571-72 (footnotes omitted) (quoting Cantwell v. Connecticut, 310 U.S. 296, 309-

10 (1940)). The Court quoted the New Hampshire Supreme Court's opinion in Chaplinsky:

The test is what men of common intelligence would understand would be words likely

to cause an average addressee to fight .... Such words, as ordinary men know, are

likely to cause a fight. . . . The statute, as construed, does no more than prohibit the face-

to-face words plainly likely to cause a breach of the peace by the addressee, words

whose speaking constitutes a breach of the peace by the speaker—including "classical
fighting words", words in current use less "classical" but equally likely to cause

violence, and other disorderly words, including profanity, obscenity and threats.

Id. at 573.

104. Id.

105. Id. at 574.

106. Id. at 572.

107. 337 U.S. 1 (1949).



1995] HATE-SPEECH HARMS 275

Terminiello, a suspended priest, was found guilty of disorderly conduct in

violation of a Chicago, Illinois ordinance and was fined.
108

Terminiello gave an

address in a Chicago auditorium. Outside the auditorium were one thousand

persons protesting the meeting. During his address, Terminiello condemned the
protesters and, in the Court's words, he "vigorously, if not viciously, criticized

various political and racial groups whose activities he denounced as inimical to the

nation's welfare."
109 The city charged Terminiello with violating the

aforementioned ordinance. At trial, the judge

charged that "breach of the peace" consists of any "misbehavior which

violates the public peace and decorum"; and that the "misbehavior may
constitute a breach of the peace if it stirs the public to anger, invites

dispute, brings about a condition of unrest, or creates a disturbance, or

if it molests the inhabitants in the enjoyment of peace and quiet by

arousing alarm."
110

The Court observed that:

[A] function of free speech under our system of government is to invite

dispute. It may indeed best serve its high purpose when it induces a
condition of unrest, creates dissatisfaction with conditions as they are, or

even stirs people to anger. Speech is often provocative and challenging.

It may strike at prejudices and preconceptions and have profound
unsettling effects as it presses for acceptance of an idea. That is why
freedom of speech, though not absolute ... is nevertheless protected

against censorship or punishment, unless shown likely to produce a clear

and present danger of a serious substantive evil that rises far above
public inconvenience, annoyance, or unrest. There is no room under our
Constitution for a more restrictive view. For the alternative would lead

to standardization of ideas either by legislatures, courts, or dominant

political or community groups.
111

The Court concluded that the city ordinance, "as construed by the trial court
seriously invaded this province."

112
Terminiello was convicted because his

"speech stirred people to anger, invited public dispute, or brought about a

condition of unrest. A conviction resting on any of those grounds may not

108. Id. at 2. The ordinance provided:

All persons who shall make, aid, countenance, or assist in making any improper noise,

riot, disturbance, breach of the peace, or diversion tending to a breach of the peace,

within the limits of the city . . . shall be deemed guilty of disorderly conduct, and upon

conviction thereof, shall be severally fined not less than one dollar nor more than two

hundred dollars for each offense.

Id. (alteration in original).

109. Id. at 3.

110. Id.

111. Id. at 4-5 (emphasis added) (citations omitted).

112. Id. at 5.



276 INDIANA LAW REVIEW [Vol. 29:257

stand."
113

Thus, in the absence of harm, in that case, a "clear and present danger
of a serious substantive evil,"

114
the city had abridged Terminiello's First

Amendment rights.
In Feiner v. New York, 115 a soap box speaker was arrested and convicted for

refusing to obey a police order to stop making a speech in which he called the
mayor of Syracuse, New York a "champagne-sipping bum" and the American
Legion a "Nazi Gestapo," and said, in the face of a hostile crowd, that "negroes

. . . should rise up in arms and fight for their rights . . . ."
116

Upholding the
conviction, the Court reasoned that the arrest was the "means which the police,
faced with a crisis, used in the exercise of their power and duty to preserve peace
and order."

117
The Court stated that the speaker was not arrested nor convicted for

the making or content of the speech. Rather, the sole motivation of the police in
making the arrest was a "proper concern for the preservation of order and
protection of the general welfare . . . ."

118

Beauhamais v. Illinois
119

involved a Chicago, Illinois ordinance that made it
a crime to publicly display any publication that "portrays depravity, criminality,

unchastity, or lack of virtue of a class of citizens, of any race, color, creed or

religion" and "exposes the citizens of any race, color, creed or religion to

contempt, derision, or obloquy or which is productive of breach of the peace or

riots."
120

Beauhamais, the president of the White Circle League, passed out

bundles of lithographs on the streets of downtown Chicago "calling on the Mayor
and the City Council of Chicago 'to halt the further encroachment, harassment and

invasion of white people, their property, neighborhoods and persons, by the Negro

. . .

.'" 121 The lithograph also stated that, "'[i]f persuasion and the need to prevent

the white race from being mongrelized by the negro will not unite us, then the

aggressions . . . rapes, robberies, knives, guns and marijuana of the negro, surely

will."
122

Beauhamais was convicted of violating the ordinance and was fined two

hundred dollars.
123

The precise question before the Court was "whether the protection of 'liberty'
in the Due Process Clause of the Fourteenth Amendment prevents a State from
punishing . . . libels . . . directed at designated collectivities and flagrantly

disseminated."
124

The Court, in an opinion by Justice Frankfurter, stated:

113. Id.

114. Id. at 4.

115. 340 U.S. 315(1951).

116. Id. at 330.

117. Id. at 321.

118. Id. at 319.

119. 343 U.S. 250(1952).

120. Id. at 251 (citing Section 224a, Illinois Criminal Code, III. Rev. Stat., 1949, c. 38, Div.

1, Section 471).

121. Id. at 252.

122. Id.

123. Id. at 251.

124. Id. at 258.



1995] HATE-SPEECH HARMS 277

Illinois did not have to look beyond her own borders or await the tragic
experience of the last three decades to conclude that wilful purveyors of

falsehood concerning racial and religious groups promote strife and tend

powerfully to obstruct the manifold adjustments required for free,

ordered life in a metropolitan, polyglot community.
125

Illinois had been the scene of "exacerbated tension between races, often flaring

into violence and destruction."
126

Utterances of the type before the Court in

Beauharnis had played a significant part in many of the outbreaks, as Illinois
attempted to "assimilate vast numbers of new inhabitants, as yet concentrated in
discrete racial or national or religious groups~foreign-born brought to it by the

crest of the great wave of immigration, and Negroes attracted by jobs in war plants

and the allurements of northern claims."
127

In addition, the first northern race riot,

which occurred in Springfield, Illinois, had resulted in the loss of life; rioting had

taken place in East St. Louis, Illinois, and there had been a race riot in Chicago in

the summer of 1919.
128

In the face of this history and its frequent obligato of extreme racial and

religious propaganda, we would deny experience to say that the Illinois
legislature was without reason in seeking ways to curb false or malicious

defamation of racial and religious groups, made in public places and by
means calculated to have a powerful emotional impact on those to whom
it was presented.

129

Justice Frankfurter noted that it could be argued that the ordinance would not

help matters, and "that tension and on occasion violence between racial and

religious groups must be traced to causes more deeply embedded in our society
than the rantings of modern Know-Nothings." 130 He answered that argument as
follows:

Only those lacking responsible humility will have a confident solution

for problems as intractable as the frictions attributable to differences of

race, color or religion. This being so, it would be out of bounds for the

judiciary to deny the legislature a choice of policy, provided it is not

unrelated to the problem and not forbidden by some explicit limitation
on the State's power. That the legislative remedy might not in practice

mitigate the evil, or might itself raise new problems, would only manifest
once more the paradox of reform. It is the price to be paid for the trial-

and-error inherent in legislative efforts to deal with obstinate social

125. Id. at 258-59 (footnote omitted).

126. Id. at 259.

127. Id. at 259-60.

128. Id. at 260-61 (footnote omitted).

129. Id. at 261.

130. Id. at 261-62.



278 INDIANA LAW REVIEW [Vol. 29:257

131
issues.

In addition, Frankfurter concluded that it would be "arrant dogmatism" for the
Court to deny that Illinois "may warrantably believe that a man's job and his
educational opportunities and the dignity accorded him may depend as much on
the reputation of the racial and religious group to which he willy-nilly belongs, as

on his own merits." 132 Thus, "we are precluded from saying that speech
concededly punishable when immediately directed at individuals cannot be
outlawed if directed at groups with whose position and esteem in society the
affiliated individual may be inextricably involved."133 Conceding that the choice
of the Illinois legislature could be abused,

134
the Court reasoned that "[e]very

power may be abused, but the possibility of abuse is a poor reason for denying
Illinois the power to adopt measures against criminal libels sanctioned by centuries
of Anglo-American law."

135
Finding no warrant in the Constitution for denying

Illinois the power to pass the law under attack, Frankfurter noted:

[I]t bears repeating-although it should not~that our findings that the law

is not constitutionally objectionable carries no implication of approval of

the wisdom of the legislation or of its efficacy. These questions may
raise doubts in our minds as well as in others. It is not for us, however,

to make the legislative judgment. We are not at liberty to erect those
doubts into fundamental law.

136

Again, the notion of harms, both real and conceivable, played a role in the

Court's analysis. In holding that the ordinance was constitutional, the

Beauharnais Court noted that the purveyance of falsehood concerning racial and

religious groups promoted strife; that utterances like those at issue before the

Court had resulted in exacerbated tensions between races; and that violence,

destruction, and race riots had occurred in Illinois. Faced with those harms and

disruptions, the state could constitutionally prohibit the lithograph distributed by

Beauharnais in order to promote the peace and well-being of the state and its

inhabitants. While it is generally understood that Beauharnais is no longer good

law in light of New York Times v. Sullivan, 137 the Court's recognition of the harms

131. Id. at 262.

132. Id. at 263.

133. Id.

1 34. The arguments were made that the law could be discriminatorily enforced, and that

prohibiting libel of a racial group or creed was "but a step from prohibiting libel of a political

party." Id.

135. Id.

136. Id. at 267.

1 37. 376 U.S. 254 (1964). The New York Times Court held that a public official could not

maintain a libel action unless the public official could show that the alleged libeller had "actual

malice," more specifically, could show that the statement was made "with knowledge that it was

false or with reckless disregard of whether it was false or not." Id. at 279-80. The Court "has not

had occasion to answer the precise question whether prohibitions on group libel might be



1995] HATE-SPEECH HARMS 279

identified by the state illustrate the point that a harms-based analysis is not foreign

to First Amendment analysis.
The Court in Miller v. California

13
* stated that, "obscene material is

unprotected by the First Amendment."
139

Recognizing that the states have a

legitimate interest in prohibiting the dissemination or exhibition of obscene

materials,
140

and acknowledging the inherent dangers of undertaking to regulate

any form of expression, the Court set out the following guidelines for the trier of

fact in cases involving obscenity and the First Amendment: (1) "whether the
'average person, applying contemporary community standards' would find that the

work, taken as a whole, appeals to the prurient interest;"
141

(2) "whether the work

depicts or describes, in a patently offensive way, sexual conduct specifically

defined by the applicable state law;"
142

and (3) "whether the work, taken as a

whole, lacks serious literary, artistic, political, or scientific value."
143

In another case decided the same day as Miller, the Court's articulated

rationale for proscribing obscenity referred to the need of "protect[ing] 'the social

interest in . . . morality'" and the need to "maintain a decent society."
144 The

"current standard for identifying obscenity was justified in part by reference to

real-world harms,"
145

and the Court openly looked to and made findings with
respect to the average person's and the community's views of expression, the

offensive nature of the expression, and the "value" of the expression.
146

Thus, in

the case of obscenity, society has determined that such material has little or no

value, and is harm-causing because it can or does cause antisocial conduct,

corruption of character, erosion of moral standards, and degradation of preferred

acceptable in the wake of New York Times v. Sullivan. But most people think that bans on group

libel or hate speech, broadly defined, are no longer permissible." Sunstein, supra note 4, at 186.

138. 413 U.S. 15,23(1973).

139. Id.

140. The Court turned to the dictionary to define obscenity. Obscene material is "disgusting

to the senses," is "grossly repugnant to the generally accepted notions of what is appropriate," is

"offensive or revolting as countering or violating some ideal or principle," and is "disgusting,

repulsive, filthy, foul, abominable, loathsome." Id. at 18 n.2.

141. Id. at 24 (quoting Roth v. United States, 354 U.S. 476, 489 (1957)).

142. Id.

143. Id.

144. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 59-6^(1973). Slaton also spoke of the

correlation between obscene materials and sex crimes. Id. at 58-59. As noted by Professor Elena

Kagan, "[t]his concern too may reflect a notion of morality, but if so, it is a morality rooted in

material harms." Kagan, supra note 83, at 894.

145. Kagan, supra note 83, at 893.

146. Apply this analysis to hate speech. Can the average person and the community

determine that certain hate speech does not meet the standards of that community and therefore is

not protected by the First Amendment? Can certain hate speech be regulated where it is deemed

to be patently offensive? Can certain hate speech be regulated where it is determined that the

speech has no political, scientific, literary, or artistic value? If it is constitutionally permissible to

regulate obscene materials, is it also constitutional to regulate certain hate speech? If not, why not?



280 INDIANA LAW REVIEW [Vol. 29:257

values.
147

In City of Renton v. Playtime Theatres, Inc.,
m

the Court held that a city

ordinance, which prohibited adult motion picture theaters from locating within

1 ,000 feet of any residential zone, single- or multiple-family dwelling, church,

park, or school, was constitutional. Writing for the Court, Justice Rehnquist
opined that the city ordinance was aimed not "at the content of the films shown at
'adult motion picture theatres,' but rather at the secondary effects of such theaters

on the surrounding community."
149

The ordinance was "designed to prevent
crime, protect the city's retail trade, maintain property values, and generally

'protec[t] and preserv[e] the quality of [the city's] neighborhoods, commercial

districts, and the quality of urban life'. . . ."
15° Thus, Rehnquist stated, the

ordinance was completely consistent with the Court's definition of content-neutral

speech regulations and did not contravene the principle underlying the Court's

concern about "'content-based' speech regulations: that 'government may not
grant the use of a forum to people whose views it finds acceptable, but deny use

to those wishing to express less favored or more controversial views.'"
151 As to

the method chosen by the city to further its substantial interests, the Court
determined that '"[i]t is not our function to appraise the wisdom of [the city's]
decision to require adult theaters to be separated rather than concentrated in the

same areas. . . . [T]he city must be allowed a reasonable opportunity to experiment

with solutions to admittedly serious problems.'"
152

Moreover, the ordinance was

valid because it was '"narrowly tailored' to affect only that category of theaters

shown to produce the unwanted secondary effects . . . ."
153

Can the Renton Court's holding that the government can regulate speech if it
does so because of the untoward secondary effects of the speech rather than

because of the Court' s disapproval of the content of the speech be applied to hate

speech? If the primary-secondary dichotomy is in the eye of the judiciary only,
154

and if it is true that it is the content of speech that determines the effects, "a strong

argument can be made that the prohibition is in actuality content-based." 155 Can

147. Sheldon H. Nahmod, Adam, Eve and the First Amendment: Some Thoughts on the

Obscene as Sacred, 68 Chi.-KentL. Rev. 377, 377-78 (1992).

148. 475 U.S. 41 (1986).

149. Id. at 47.

1 50. Id. at 48 (alterations in original).

151. Id. at 48-49 (quoting Police Dept. v. Mosley, 408 U.S. 92, 96 (1972)).

1 52. Id. at 52 (alterations in original) (quoting Young v. American Mini Theatres, Inc., 427

U.S. 50, 71 (1976) (plurality opinion)).

153. Id.

154. Stephen Reinhardt, The First Amendment: The Supreme Court and the Left—With
Friends Like These, 44 HASTINGS L. J. 809, 819 (1993). Judge Reinhardt notes that one major

problem with the Renton doctrine is the risk of misapplication. "Even assuming that one could

justify, intellectually, a regulation of speech based on secondary as opposed to primary effects, the

state legislatures and city councils that implement the doctrine are often neither sophisticated in its

use nor particularly concerned abut [sic] First Amendment niceties." Id.

155. Id.



1 995] HATE-SPEECH HARMS 28

1

it not be argued, then, that certain hate speech is regulable because of the adverse

effects and consequences of such speech, and that such regulation is not

unconstitutional solely on the ground that the regulation looks at the content of the

speech? Like constitutional and content-based regulation of the secondary effects

of other speech, cannot the secondary effects of certain hate speech be lawfully

and constitutionally regulated? If one answers this question in the negative, what

distinguishes some secondary effects from others for First Amendment purposes?
Is the distinction based on the valuations of the different expressions and the

harms thereof? Is it fair to say that the distinction is really a reflection of

"substantive disagreements over matters of policy?"
156

In Texas v. Johnson,
151

the flag burning case, the Court considered two

interests offered by the State of Texas attempting to justify the conviction of

Gregory Johnson for burning an American flag. The state claimed that its interest

in preventing breaches of the peace justified Johnson's conviction for flag

desecration. "However, no disturbance of the peace actually occurred or

threatened to occur because of Johnson's burning of the flag."
158 The Court

reasoned that acceptance of the state's argument that Johnson's conduct created

the potential for a breach of the peace as a justification for the conviction would

eviscerate the Court's holding in Brandenburg v. Ohio.
159

"This we decline to
do."

160
Johnson's expressive conduct did not fall within the proscribed class of

fighting words. Justice Brennan wrote: "No reasonable onlooker would have
regarded Johnson's generalized expression of dissatisfaction with the policies of

the Federal Government as a direct personal insult or an invitation to exchange

fisticuffs."
161

The State of Texas also urged that its interest in preserving the flag as a
symbol of nationhood and national unity justified Johnson's conviction. Justice

Brennan stated that Johnson was prosecuted because he knew that his expressive
conduct would cause serious offense. "The Texas law is . . . not aimed at
protecting the physical integrity of the flag in all circumstances, but is designed

instead to protect it only against impairments that would cause serious offense to

others."
162

The Court disagreed with the state's argument that the message
conveyed by flag desecration was a harmful one and therefore could be

prohibited.
163

Noting the "bedrock principle . . . that the government may not
prohibit the expression of an idea simply because society finds the idea itself

156. Id. at 820.

157. 491 U.S. 397(1989).

158. Id. at 408.

1 59. 395 U.S. 444 (1969) (per curiam). In Brandenburg, the Court held that a state could not

"forbid or proscribe advocacy of the use of force or of law violation except where such advocacy

is directed to inciting or producing imminent lawless action and is likely to incite or produce such

action." Id. at 447.

160. Texas, A9\ U.S. at 409.

161. Id.

162. Id. at 411.

163. Id. at 413.



282 INDIANA LAW REVIEW [Vol. 29:257

offensive or disagreeable,"
164

Justice Brennan concluded that nothing in the
Court's precedents suggested that a state could "foster its own view of the flag by
prohibiting expressive conduct relating to it."

165

Chief Justice Rehnquist, dissenting, disagreed with both the Court's analysis

and result. "No other American symbol has been as universally honored as the
flag."

166
"The flag is not simply another 'idea' or 'point of view' competing for

recognition in the marketplace of ideas."
167

After noting and quoting from the

Chaplinsky "fighting words" decision,
168

Rehnquist opined that the public burning

of the flag by Johnson was not an essential part of any exposition of ideas, and had

a tendency to incite a breach of the peace. The flag burning,

like Chaplinsky' s provocative words, conveyed nothing that could not

have been conveyed and was not conveyed just as forcefully in a dozen

different ways. As with "fighting words," so with flag burning, for
purposes of the First Amendment: It is "no essential part of any
exposition of ideas, and [is] of such slight social value as a step to truth

that any benefit that may be derived from [it] is clearly outweighed" by
the public interest in avoiding a probable breach of the peace.

169

For Rehnquist, "flag burning is the equivalent of an inarticulate grunt or roar that,

it seems fair to say, is most likely to be indulged in not to express any particular

idea, but to antagonize others."
170 One of the "high purposes of a democratic

society is to legislate against conduct that is regarded as evil and profoundly

offensive to the majority of people—whether it be murder, embezzlement,
pollution, or flag burning."

171

164. M. at 414.

165. Id. at 415.

166. Id. at 427 (Rehnquist, C. J., dissenting, joined by Justices White and O'Connor).

167. Id. at 429.

168. See supra notes 99-106 and accompanying text.

169. Texas, 491 U.S. at 431 (alteration in original).

170. Id. at 432.

171. Id. at 435. In a separate dissent, Justice Stevens argued that the "concept of

'desecration' does not turn on the substance of the message the actor intends to convey, but rather

on whether those who view the act will take serious offense." Id. at 438 (Stevens, J., dissenting).

Thus, "one intending to convey a message of respect for the flag by burning it in a public square

might nonetheless be guilty of desecration if he knows that others . . . [would] ... be seriously

offended." Id. Even if the actor knew that all possible witnesses would understand that he intended

to send a message of respect, Justice Stevens stated, the flag burner could still be guilty of

desecration if he also knew that that understanding did not lessen the offense taken by some of the

witnesses. Id. Accordingly, Stevens concluded that the case had nothing to do with disagreeable

ideas, but rather involved disagreeable conduct that diminished the value of an important national

asset. If Johnson had chosen to spray paint his message on the facade of the Lincoln Memorial,

"there would be no question about the power of the Government to prohibit his means of

expression." Id.

One year after the decision in Johnson, the Court in United States v. Eichman, 496 U.S.



1995] HATE-SPEECH HARMS 283

Barnes v. Glen Theatre, Inc.
X12

involved the claim that the First Amendment
prohibited the State of Indiana from enforcing its public indecency law to prevent

totally nude dancing.
173

In rejecting the claim and applying United States v.

O'Brien,
114

a plurality of the Court concluded that the statute was justified despite

its incidental limitations on some expressive activity, that the "statute's purpose
of protecting societal order and morality is clear from its text and history,"

175
and

that the law "furthers a substantial government interest in protecting order and

morality."
176 The governmental interest was unrelated to the suppression of free

expression, the Court explained, and Indiana sought to prevent the "evil" of public

nudity "whether or not it is combined with expressive activity."
177

In a concurring

opinion, Justice Scalia wrote:

Our society prohibits, and all human societies have prohibited, certain
activities not because they harm others but because they are considered,

in the traditional phrase, "contra bonos mores," i.e., immoral. In

American society, such prohibitions have included, for example,

sadomasochism, cock fighting, bestiality, suicide, drug use, prostitution,

310 (1990), considered the prosecution of individuals for burning a flag in violation of the Flag

Protection Act of 1989. 18 U.S.C. § 700 (1994). The Flag Protection Act, passed by Congress in

1989 following the Court's decision in Johnson, provided, in pertinent part: "Whoever knowingly

mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any

flag of the United States shall be fined under this title or imprisoned for not more than one year, or

both." Id. The Court held that the conviction was inconsistent with the First Amendment. In his

opinion for the Court, Justice Brennan noted that the Court was aware that flag desecration was

offensive to many. "But the same might be said, for example, of virulent ethnic and religious

epithets . . . vulgar repudiations of the draft . . . and scurrilous caricatures . . . ." Eichman, 496 U.S.

at 318 (citations omitted). Punishing flag desecration "dilutes the very freedom that makes this

emblem so revered, and worth revering." Id.

172. 501 U.S. 560(1991).

173. Id. at 562-63. The Indiana statute provides, in pertinent part, that a "person who

knowingly or intentionally, in a public place . . . appears in a state of nudity . . . commits public

indecency, a Class A misdemeanor." Ind. Code § 35-45-4-1 (1993).
174. 391 U.S. 367 (1968). In O'Brien, the Court set out the following four-part test:

[W]e think it clear that a government regulation is sufficiently justified if it is within the

constitutional power of the Government; if it furthers an important or substantial

governmental interest; if the governmental interest is unrelated to the suppression of free

expression; and if the incidental restriction on alleged First Amendment freedoms is no

greater than is essential to the furtherance of that interest.

Id. at 377.

175. Barnes, 501 U.S. at 568. The Court conceded that it was "impossible to discern, other

than from the text of the statute, exactly what governmental interest the Indiana legislators had in

mind when they enacted this statute, for Indiana does not record legislative history, and the State's

highest court has not shed additional light on the statute's purpose." Id. at 567-68.

176. Id. at 569.

177. Id. at 571.



284 INDIANA LAW REVIEW [Vol. 29: 257

and sodomy. While there may be great diversity of view on whether
various of these prohibitions should exist . . . there is no doubt that,
absent specific constitutional protection for the conduct involved, the

Constitution does not prohibit them simply because they regulate
"morality."

178

The purpose of the Indiana statute, as Scalia saw it, "is to enforce the traditional
moral belief that people should not expose their private parts indiscriminately,

regardless of whether those who see them are disedified." 179

In a separate concurrence, Justice Souter argued that the interest asserted by
the State in "preventing prostitution, sexual assault, and other criminal activity"

was sufficient to justify the enforcement of the statute against the adult
entertainment at issue in the case.

180
In his view, Indiana's interest in banning

nude dancing resulted from a correlation of such dancing with other evils and,
given that correlation, "the interest is unrelated to the suppression of free

expression."
181

Let us turn to two more recent decisions by the Supreme Court, the first
dealing with hate speech, the second with hate crimes. R.A.V. v. City ofSt. Paul

1 *2

178. Id. at 575 (Scalia, J., concurring in the judgment).

179. Id. Scalia would have upheld the Indiana statute on the ground that moral opposition

to nudity supplied a rational basis for the prohibition of nudity, "and since the First Amendment

has no application to this case no more than that is needed." Id. at 580.

1 80. Id. at 582 (Souter, J., concurring in the judgment).

181. Id. at 586. In his dissenting opinion, Justice White (joined by Justices Marshall,

Blackmun, and Stevens) explained that the Court's references to the state's general interest in

promoting societal order and morality was not sufficient justification for a statute which reached

a "significant amount of protected expressive activity." Id. at 590. The purpose of preventing nude

dancing in theaters and barrooms "is to protect the viewers from what the State believes is the

harmful message that nude dancing communicates." Id. at 591. The perceived damage to the

public interest caused by nudity on the streets and in public parks was not what the state sought to

prevent in prohibiting nude dancing in theaters and taverns, Justice White stated. "There the

perceived harm is the communicative aspect of the erotic dance." Id. The attainment of the state's

goal of deterring certain social and moral harms depended on "preventing an expressive activity."

Id.

To the extent that the Court was concerned with prostitution and other evils, White continued,

the Indiana statute was not narrowly drawn. The state could have required nude dancers to remain

a certain distance from spectators, limited nude entertainment to certain hours, required that such

establishments be dispersed throughout the city, and criminalized prostitution and obscene

behavior. "Banning an entire category of expressive activity, however, generally does not satisfy

the narrow tailoring requirement of strict First Amendment scrutiny." Id. at 594.

1 82. 505 U.S. 377 (1992). For discussions of R.A.V., see Edward J. Cleary, Beyond the

Burning Cross: The First Amendment and the Landmark R.A. V. Case (1994); Jonathan D.

Selbin, Bashers Beware: The Continuing Constitutionality ofHate Crimes Statutes After R.A.V.

,

72 OR. L. REV. 157 (1993); Kathleen M. Sullivan, Foreword: The Justices ofRules and Standards,

106 Harv. L. Rev. 22 (1992); Turner, supra note 3.



1995] HATE-SPEECH HARMS 285

held that a city's bias-motivated crime ordinance, which prohibited the display of

a symbol which one knows or has reason to know arouses anger, alarm or
resentment in others on the basis of race, color, creed, religion or gender,

183
was

facially invalid under the First Amendment in that it prohibited "otherwise

183. R.A.V., 505 U.S. at 380. The St. Paul, Minnesota, Bias-Motivated Crime Ordinance

provided:

Whoever places on public or private property a symbol, object, appellation,

characterization or graffiti, including, but not limited to, a burning cross or Nazi

swastika, which one knows or has reasonable grounds to know arouses anger, alarm or

resentment in others on the basis of race, color, creed, religion or gender commits

disorderly conduct and shall be guilty of a misdemeanor.

Id (citing St. Paul, Minn. Leg. Code § 292.02 (1990)).

A teenager, Robert A. Viktora, was charged with violating this ordinance after he and several
other teenagers assembled and burned a cross inside the fenced yard of an African-American family.

Id. at 379-80; Turner, supra note 3, at 197. Immediately before constructing and burning the cross,

Viktora and his cohorts engaged in a discussion of racial tensions, and one of the teenagers told of

being accosted by three African-Americans. Viktora recounted that an African-American male had

pulled a knife on him, and members of the group were disgusted about the fact that an African-

American family was living across the street from one of the teenagers and decided to do something

about it. See United States v. Juvenile Male J.H.H., 22 F.3d 821, 826-27 (8th Cir. 1994). One

teenager suggested puncturing the tires of the black family's car, and another youth responded "that

that had already been done and 'it didn't do no good. . . . They're still there.'" Id. at 827. Viktora

then brought up the movie "Mississippi Burning," and another teenager said, "Let's go burn some

niggers." Id. A cross was built out of the wooden legs of a bar stool, tape, and cloth. Three of the
young men entered the black family's fenced backyard with the cross and a can of flammable liquid

and doused the cross with the liquid and set it afire. Id. In addition, the teenagers built two other

crosses and burned them at a nearby apartment complex and at the street corner directly across from

the black family's home. Thus, within a two-hour time span the teenagers burned three crosses in

or in close proximity to the black family's home. Id.

Viktora was charged with cross-burning in violation of the Minnesota ordinance. Id. at 824.

The Minnesota Supreme Court held that the reach of the ordinance was limited to fighting words

within the meaning of Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), and therefore reached
only expression that the First Amendment did not protect. See In re Welfare of R.A.V., 464

N.W.2d 507, 510 (Minn. 1991), rev'd, 505 U.S. 377 (1992).

Viktora and two other juveniles were convicted for acts of juvenile delinquency, specifically,

for having interfered with federal housing rights by force or threat, and having aided and abetted

those crimes. See Juvenile Male J.H.H., 22 F.3d at 823. The government argued that the

convictions did not violate the First Amendment because two of the juveniles were convicted for

cross-burning as a means to threaten and intimidate an African-American family. Agreeing, the

United States Court of Appeals for the Eighth Circuit concluded that, unlike the ordinance held

invalid by the Supreme Court in R.A. V., the federal statutes violated by the juveniles (18 U.S.C. §

241 (1994) and 42 U.S.C. § 3631 (1988)), prohibited only a mode of expression, i.e., threats of

violence and intimidation. Consequently, even if those sections "make content distinctions, they

are of a kind that poses 'no significant danger of idea or viewpoint discrimination.'" Juvenile Male

J.H.H., 22 F.3d at 826 (citation omitted) (quoting R.A. V., 505 U.S. at 388).



286 INDIANA LAW REVIEW [Vol. 29:257

permitted speech solely on the basis of the subjects the speech addresses." 184

The Court's opinion, authored by Justice Scalia, accepted "the Minnesota
Supreme Court's authoritative statement that the ordinance reached only those
expressions that constituted 'fighting words' within the meaning of
Chaplinsky"™

5
Noting that fighting words are excluded from the scope of the

First Amendment, the Court stated that the exclusion "simply means that, for
purposes of that Amendment, the unprotected features of the words are, despite
their verbal character, essentially a 'non speech' element of communication."

186

However, the Court continued, government may not regulate fighting words on the
basis of hostility or favoritism towards the message conveyed.

187
The St. Paul

ordinance, "limited by the Minnesota Supreme Court's construction to reach only
symbols or displays that amount to 'fighting words,' . . . applies only to 'fighting
words' that insult, or provoke violence, 'on the basis of race, color, creed, religion

or gender.'"
188

Displays containing abusive invective, no matter how vicious or severe,
are permissible unless they are addressed to one of the specified

disfavored topics. Those who wish to use "fighting words" in
connection with other ideas—to express hostility, for example, on the

basis of political affiliation, union membership, or homosexuality—are

not covered. The First Amendment does not permit St. Paul to impose
special prohibitions on those speakers who express views on disfavored
subjects.

189

Moreover, stated the Court, the ordinance involved viewpoint discrimination

because displays of some words,

[such as] odious racial epithets, for example—would be prohibited to

proponents of all views. . . . [while] . . . "fighting words" that do not

themselves invoke race, color, creed, religion, or gender . . . would

seemingly be usable ad libitum in the placards of those arguing in favor
of racial, color, etc. tolerance and equality, but could not be used by that

speaker' s opponents .
* 90

In the final paragraphs of its opinion, the Court took up the city's and amicis'

arguments that the ordinance was justified because it was narrowly tailored to

serve compelling state interests. "Specifically, they assert that the ordinance helps

to ensure the basic human rights of members of groups that have historically been

184. /?.AK,505U.S. at 381.

185. Id.

1 86. Id. at 386.

187. Id.

188. Id. at 391.

189. Id.

190. Id. (emphasis in original). The Court opined that one could hold up a sign saying that

all "anti-Catholic bigots" were misbegotten, but not a sign stating that all "papists" were, "for that

would insult and provoke violence on the basis of religion." Id. at 391-92.



1995] HATE-SPEECH HARMS 287

subjected to discrimination, including the right of such group members to live in
peace where they wish."

191
Not doubting that those interests were compelling or

that the ordinance could be said to promote them, the Court, concerned with the

danger of censorship, asked whether the content discrimination of the ordinance

was reasonably necessary to achieve St. Paul's compelling interests; it

plainly is not. An ordinance not limited to the favored topics, for
example, would have precisely the same beneficial effect. In fact the

only interest distinctively served by the content limitation is that of

displaying the city council's special hostility towards the particular

biases thus singled out. That is precisely what the First Amendment
forbids. The politicians of St. Paul are entitled to express that hostility—

but not through the means of imposing unique limitations upon speakers

who (however benightedly) disagree. 192

Justice White's concurring opinion agreed with the Court that the judgment

of the Minnesota Supreme Court should be reversed.
193

In his view, however, the

case could have been "decided within the contours of established First

Amendment law by holding . . . that the . . . ordinance is fatally overbroad because
it criminalizes not only unprotected expression but expression protected by the

First Amendment."
194

White argued the majority's holding protected narrow

categories of expression long held to be undeserving of First Amendment
protection. "Should the government want to criminalize certain fighting words,

the Court now requires it to criminalize all fighting words." 195 For Justice White,
it was inconsistent to hold that government may proscribe an entire category of
speech but "may not treat a subset of that category differently without violating the
First Amendment; the content of the subset is by definition worthless and
undeserving of constitutional protection."

196

In a separate concurrence, Justice Blackmun argued that by deciding that a
state "cannot regulate speech that causes great harm unless it also regulates speech
that does not (setting law and logic on their heads), the Court seems to abandon

the categorical approach, and inevitably to relax the level of scrutiny applicable

to content-based laws."
197

Blackmun stated that it was possible that R.A.V. would

"not significantly alter First Amendment jurisprudence, but, instead, will be
regarded as an aberration—a case where the Court manipulated doctrine to strike

down an ordinance whose premise it opposed, namely, that racial threats and
verbal assaults are of greater harm than other fighting words."

198
Seeing no First

191. Id. at 395.

192. Id. at 395-96 (footnote omitted).

193. Id. at 391.

194. Id. (White, J., concurring in the judgment, joined by Justices Blackmun, O'Connor, and

Stevens).

195. Id. at 401.

196. Id.

197. Id. at 415 (Blackmun, J., concurring in the judgment).

198. Id.



288 INDIANA LAW REVIEW [Vol. 29:257

Amendment values that were compromised by a law prohibiting "hoodlums from
driving minorities out of their homes by burning crosses on their lawns," Justice
Blackmun saw "great harm in preventing the people of Saint Paul from
specifically punishing the race-based fighting words that so prejudice their

community."
199

Justice Stevens, concurring in the judgment, began his opinion with the

statement: "Conduct that creates special risks or causes special harms may be
prohibited by special rules."

200
Threatening an individual "because of her race or

religious beliefs may cause particularly severe trauma or touch off a riot . . . ,"201

Such threats "may be punished more severely than threats against someone based
on, say, his support of a particular athletic team. There are legitimate, reasonable,

and neutral justifications for such special rules."
202

The Court's "entire First
Amendment jurisprudence creates a regime based on the content of speech,"
Stevens stated, and the "scope of the First Amendment is determined by the
content of expressive activity."

203 The line between permissible advocacy and
impermissible incitement to crime or violence depends on what the speaker says,

and whether the speech falls within the protected or unprotected categories is

determined in part by its content.
204

In his majority opinion, Justice Scalia stated that the federal government can

criminalize only those threats that are directed against the President because "the

reason why threats of violence are outside the First Amendment (protecting
individuals from the fear of violence, from the disruption that fear engenders, and

from the possibility that the threatened violence will occur) have special force

when applied to the . . . President."205 Stevens took issue with the Court's
analysis. As he understood that "opaque passage," Congress could "choose from
the set of unprotected speech (all threats) to proscribe only a subset (threats against

the President) because those threats are particularly likely to cause 'fear of

violence,' 'disruption,' and actual 'violence.'"
206

199. Id. at 416.

200. Id. (Stevens, J., concurring in the judgment).

201. Id.

202. Id.

203. The First Amendment broadly protects "speech," Stevens opined, but does not protect

the right to fix prices, breach contracts, place bets with bookies, or violate the Sherman Act. Id. at

420.

204. Id. at 421.

Whether a magazine is obscene, a gesture a fighting word, or a photograph child

pornography is determined, in part, by its content. Even within categories of protected

expression, the First Amendment status of speech is fixed by its content. ... It can,

therefore, scarcely be said that the regulation of expressive activity cannot be predicated

on its content: much of our First Amendment jurisprudence is premised on the

assumption that content makes a difference.

Id. (citations omitted).

205. Id. at 388.

206. Id. at 424 (Stevens, J., concurring in the judgment).



1995] HATE-SPEECH HARMS 289

Just as Congress may determine that threats against the President entail
more severe consequences than other threats, so St. Paul's City Council

may determine that threats based on the target's race, religion, or gender
cause more severe harm to both the target and to society than other

threats. This latter judgment—that harms caused by racial, religious, and

gender-based invective are qualitatively different from that caused by

other fighting words-seems to me eminently reasonable and realistic. 207

The R.A. V. Court also recognized that a state could regulate advertising in one
industry but not another because the risk of fraud in the regulated industry was

greater than in other industries.
208

Justice Stevens stated that this same reasoning

demonstrated the constitutionality of the St. Paul ordinance. "Certainly a

legislature that may determine that the risk of fraud is greater in the legal trade
than in the medical trade may determine that the risk of injury or breach of peace
created by race-based threats is greater than that created by other threats."

209

Stevens also argued that a selective proscription of unprotected expression

"would be constitutional if it were based on a legitimate determination that the

harm created by the regulated expression differs from that created by the
unregulated expression. . . . Such selective protection is no different from a law

prohibiting minors (and only minors) from obtaining obscene publications."
210

St.

Paul had determined that fighting-word injuries based on race, color, creed,

religion or gender were

qualitatively different and more severe than fighting-word injuries based

on other characteristics. Whether the selective proscription of

prescribable speech is defined by the protected target ... or the basis of

the harm . . . makes no constitutional difference: what matters is whether

the legislature's selection is based on a legitimate, neutral, and

reasonable distinction.
211

Justice Stevens also reasoned that the ordinance regulated speech not on the

basis of its subject matter or viewpoint, but rather on the basis of the harm caused

by the speech. The ordinance regulated expression that caused injury and did not

regulate expression involving discussions that concerned the characteristics of

race, color, creed, religion or gender.
212 Even if the ordinance regulated fighting

words on the basis of subject matter, such regulation would be constitutional, for

subject matter regulations do not raise the same concerns of government

censorship presented by viewpoint regulations.
213 The St. Paul ordinance was

evenhanded, did not regulate on the basis of viewpoint, and did not "prevent either

207. Id.

208. Id. at 388.

209. Id. at 424-25 (Stevens, J., concurring in the judgment)

210. Id. at 425.

211. Id.

212. Id. at 433-34.

213. Id. at 434.



290 INDIANA LAW REVIEW [Vol. 29:257

side from hurling fighting words at the other on the basis of their conflicting ideas,

but it does bar both sides from hurling such words on the basis of the target'

s

'race, color, creed, religion or gender.'"
214

Thus, in Stevens' view, the ordinance

simply banned punches below the belt by both parties. "It does not, therefore,

favor one side of any debate."
215

Stevens concluded that the St. Paul ordinance

regulated expressive activity that was wholly prescribable and did so "not on the
basis of viewpoint, but rather in recognition of the different harms caused by such

activity."
216

It appears that what St. Paul lost in R.A. V. "--what government at all levels

lost—was a form of expression: the use of the criminal law as a means to
communicate the public's repudiation of hate speech focused on the race, religion,

or gender of its intended victims."
217

Interestingly, the Court did not extend that

general principle to hate crimes. In Wisconsin v. Mitchell™ an individual's

"sentence for aggravated battery was enhanced because he intentionally selected

his victim on account of the victim's race."
219

Under the applicable Wisconsin

law, the offense of aggravated battery carried a maximum sentence of two years'
imprisonment. Because the jury found that the perpetrator had chosen his victim

due to the victim's race, the maximum sentence was increased to seven years.220

The convicted party challenged the constitutionality of the enhancement statute on

First Amendment grounds.
The Wisconsin Supreme Court ruled that the "statute punishes the 'because

of aspect of the defendant's selection, the reason the defendant selected the
victim, the motive behind the selection."

221 The state argued that the statute did

not punish bigoted thought, but instead punished only conduct. The United States

Supreme Court, concluding that the state's argument was literally correct, stated

that the argument did not dispose of the First Amendment challenge. Although
the statute punished criminal conduct, it enhanced the maximum penalty for
"conduct motivated by a discriminatory point of view more severely than the same

conduct engaged in for some other reason or for no reason at all."
222

Because the

only reason for the penalty enhancement was the defendant's discriminatory

motive for selecting the victim, the defendant argued that the statute punished

bigoted beliefs in violation of the First Amendment. The Court noted that judges

traditionally have considered a wide variety of factors in determining which

214. Id. at 435 (emphasis in original).

215. Id.

216. Id. at 436.

217. Kenneth L. Karst, Law's Promise, Law's Expression: Visions of Power in the

Politics of Race, Gender, and Religion 97 (1993).

218. 1 13 S. Ct. 2194 (1993). For a discussion of Mitchell, see Laurence H. Tribe, The

Mystery ofMotive, Private and Public: Some Notes Inspired by the Problems ofHate Crime and

Animal Sacrifice, 1993 SUP. Ct. REV. 1.

219. Mitchell, 1 13 S. Ct. at 2196.

220. Id. at 2197; see also Wis. STAT. ANN. § 939.645 (West 1995).

22 1

.

State v. Mitchell, 485 N.W.2d 807, 8 1 2 ( 1 992) (emphasis in original).

222. Mitchell, 1 13 S. Ct. at 2199.



1 995] HATE-SPEECH HARMS 29

1

sentence to impose, with the defendant's motive being an important factor.
223

It

is also "equally true that a defendant's abstract beliefs, however obnoxious to most

people, may not be taken into consideration by a sentencing judge."224

As to the defendant's argument that the Wisconsin penalty-enhancement
statute was invalid because it punished the defendant's discriminatory motive or

reason for acting, the Court reasoned that the statute singled out "for enhancement

bias-inspired conduct because this conduct is thought to inflict greater individual

and societal harm. . . . [B]ias-motivated crimes are more likely to provoke

retaliatory crimes, inflict distinct emotional harms on their victims, and incite

community unrest."
225 "The State's desire to redress these perceived harms

provides an adequate explanation for its penalty-enhancement provision over and

above mere disagreement with offenders' beliefs or biases."
226

Thus some concept of harm has been an element of the Court's analysis of the

First Amendment in various contexts. Fighting words can be regulated in order
to prevent and deal with the injuries and immediate breaches of the peace resulting

from the use of such words.
227

Speech can be regulated if it can be shown that it

is "likely to produce a clear and present danger of a serious substantive evil that

rises far above public inconvenience, annoyance, or unrest."
228

At one time,

speech could be regulated in order to address and deter the possible strife and

tensions between so-called racial groups that could be caused by the purveyance

of falsehoods concerning such groups.
229 A city may constitutionally regulate the

areas in which adult motion picture theaters may operate in order to prevent crime,
protect retail trade, maintain property values, and generally protect and preserve

the quality of neighborhoods, commercial districts, and the "quality of . . . life."
230

Also a state may lawfully enforce a ban on public indecency without violating the
First Amendment where it seeks to prevent the evil of public nudity and promote

223. Id.

224. Id. at 2200. In Dawson v. Delaware, 503 U.S. 159 (1992), the Court held that the

admission of evidence at a capital-sentencing hearing that the defendant was a member of a white

supremacist prison gang violated the First Amendment because the evidence proved nothing more

than the defendant's abstract beliefs. In another decision, Barclay v. Florida, 463 U.S. 939 (1983),

the Court permitted the sentencing judge to take into account the defendant's racial animus (the

defendant was a member of the Black Liberation Army) towards his victim. The Mitchell defendant

argued that Dawson and Barclay were inapposite because those cases did not involve the

application of a penalty-enhancement provision. Rejecting that argument, the Mitchell Court stated

that in Barclay the Court "held that it was permissible for the sentencing court to consider the

defendant's racial animus in determining whether a defendant should be sentenced to death, surely

the most severe 'enhancement' of all." Mitchell, 1 13 S. Ct. at 2200.

225. Mitchell 1 13 S. Ct. at 2201.

226. Id.

227. Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942).
228. Terminiello v. City of Chicago, 337 U.S. 1, 4 (1949).

229. Beauharnais v. Illinois, 343 U.S. 250 (1952). See supra notes 119-36 and

accompanying text.

230. Renton v. Playtime Theatres, 475 U.S. 41, 48 (1986).



292 INDIANA LAW REVIEW [Vol. 29:257

public morality.
231

Additionally a state may constitutionally enact a penalty-
enhancement statute for bias-motivated crimes where the state concludes that such
conduct inflicts greater individual and societal harm, and is more likely to provoke
retaliatory crimes, inflict emotional harms on victims, and incite community
unrest.

232

Cases in which the Court held that a state or locality abridged First
Amendment rights have turned, in part, on the Justices' assessments of whether
the conduct at issue presented the possibility of potential or actual harm. In Texas

v. Johnson, the Court pointed out that no disturbance of the peace actually

occurred or was threatened to occur due to the burning of the flag,
233

and that no

reasonable onlooker would have regarded the flag burning as a direct personal
insult or an invitation to fight.

234 The dissenting Justices based their arguments,
in part, on the notion that the flag burning had a tendency to incite a breach of the

peace, and that a state could regard the conduct as evil or offensive.
235

In R.A. V.,

Justice Blackmun argued that the Court had manipulated doctrine in order to strike

down an ordinance whose premise the Court opposed, "namely, that racial threats
and verbal assaults are of greater harm than other fighting words."

236
Justice

Stevens, arguing in R.A.V. that conduct which creates special risks or causes

special harms may be prohibited by special rules, concluded that threatening an
individual because of her race or religion may be punished more severely than
other threats.

237
In his view, a city council could lawfully, reasonably, and

realistically "determine that threats based on the target's race, religion, or gender

cause more severe harm to both the target and to society."
238 As can be seen,

issues of harm are considered and relied upon by both liberal and conservative

Justices who are clearly influenced by the particular expression exposed to
regulation.

III. The Harms of Hate Speech

Speech can cause and inflict injury, and will often be protected "not because

it is harmless, but despite the harm it may cause."
239 As noted by Professor

Schauer:

To put it more precisely, existing understandings of the First
Amendment presuppose that legal toleration of speech-related harm is
the currency with which we as a society pay for First Amendment
protection. Paying a higher price by legally tolerating more harm is thus

231. Barnes v. Glen Theatre, Inc., 501 U.S. 560, 569 (1991).

232. Wisconsin v. Mitchell, 113 S. Ct. 2194, 2201 (1993).

233. 491 U.S. 397,408(1989).

234. Id. at 409.

235. See supra notes 166-71 and accompanying text.

236. See supra notes 197-99 and accompanying text.

237. See supra notes 200-04, 206-07 and accompanying text.

238. See R.A.V. v. City of St. Paul, 505 U.S. 327 (1992).

239. Schauer, supra note 1, at 1321.



1995] HATE-SPEECH HARMS 293

taken to be necessary in order to get more First Amendment protection.
Conversely, it appears equally well accepted that being more concerned

about speech-related harm by tolerating less of it requires accepting a
commensurately weaker First Amendment.

240

Hate speech is not without cost; those who are the targets of such speech can and
do pay the price of the hate-speaker's asserted First Amendment freedom.

A. Hate Speech

It has been recognized, and it seems indisputable, that "[h]ate speech based

on race or ethnicity or gender is typically more hurtful and painful to the listener

than are other types of generic insults. The literature describing the experience of

being victimized by this kind of speech is extensive and convincing."
241 The

hurtful experience of "being called 'nigger,' 'spic,' 'Jap,' or 'kike' is like

receiving a slap in the face."
242

Individuals are injured by such speech,
243

and the

240. Id. at 1322 (footnote omitted). Professor Schauer has also argued that

existing understandings of the First Amendment are based on the assumption that,

because a price must be paid for free speech, it must be the victims of harmful speech

who are to pay for it. This assumption, however, seems curious. It ought to be

troubling whenever the cost of a general societal benefit must be borne exclusively or

disproportionately by a small subset of the beneficiaries. And when in some situations

those who bear the cost are those who are least able to afford it, there is even greater

cause for concern. If free speech benefits us all, then ideally we all ought to pay for it,

not only those who are the victims of harmful speech.

Id.

241

.

Brownstein, supra note 63, at 204.

242. Racist Speech on Campus, supra note 3, at 452. What about words like "honky,"

"redneck," and "cracker?" While those words can be harmful epithets in certain contexts, some

have argued that such words are not comparably damaging to whites as are epithets hurled against

people of color and other so-called minorities. In the view of two commentators:

The word "honky" is more a badge of respect than a put down. "Cracker," although

disrespectful, still implies power, as does "redneck." The fact is that terms like

"nigger," "spick," "faggot," and "kike" evoke and reinforce entire cultural histories of

oppression and subordination. They remind the target that his or her group has always

been and remains unequal in status to the majority group. Even the most highly

educated, professional class African-American or Latino knows that he or she is

vulnerable to the slur, the muttered expression, the fishy glance on boarding the bus,

knows that his degree, his accomplishments, his well-tailored suit are no armor against

mistreatment at the hands of the least educated white.

But not only is there no correlate, no hate speech aimed at whites, there is no

means by which persons of color and others can respond effectively to this form of

speech within the current paradigm. Our culture has developed a host of narratives,

mottoes, and presuppositions that render it difficult for the minority victim to talk back

in individual cases, and to mobilize effectively against hate speech in general. These

include: feelings are minor; words only hurt if you let them; rise above it; don't be so



294 INDIANA LAW REVIEW [Vol. 29:257

personal attack of hate speech can produce an instinctive, defensive psychological

reaction, as well as fear, rage, shock, and flight.
244

In a recent article, Professor Calvin Massey discusses five types of harms
caused by hate speech and the arguments for the suppression thereof.

245
First, hate

speech can produce violence directed toward either the targets of the speech or

those who use the speech. "Suppression of speech which incites violence can be
justified on the grounds that it serves to protect specific individual interests from

invasion and also to preserve a more general societal interest in preventing violent

rupture of social norms."
246

Second, hate speech can be harmful to the specific

individuals towards whom it is directed. Suppression can be justified on the
grounds that the injuries suffered by individual targets of hate speech "are every

bit the equal of the loss of reputation, humiliation, or emotional torment suffered

by victims of the dignitary torts."
247

Third, suppression of hate speech can be

grounded in the justification that it harms those groups which are the target of

vilification.
248

Fourth, hate speech may be harmful and require suppression
because doing so "will preserve public discourse as a truly autonomous mode of
governance."

249
Finally, it has been argued that hate speech should be suppressed

because such speech is contrary to the societal consensus with respect to the

elemental wrongness of the use of racial epithets. On that view, the suppression
of hate speech is "symbolically necessary as an 'unequivocal expression[] of

solidarity with vulnerable minority groups.'"
250

Professor Robert Post has grouped the harms of what he calls "racist speech"

into five categories.
251

sensitive; don't be so humorless; talk back—show some backbone. Stated or unstated

narratives like these form part of the linguistic and narrative field on which minority

victims have to play in responding to taunts and epithets, and of course limit the efficacy

of any such response.

Delgado & Yun, supra note 17, at 1823 (footnotes omitted).
243. See Racist Speech on Campus, supra note 3, at 457.

244. Id. at 452.

245. See Massey, supra note 1.

246. Wat 155.
247. Id. at 158. Massey refers to the torts of defamation, invasion of privacy, and the

intentional infliction of emotional distress. Id.

248. Id. at 164.

249. Id. at 167. There are two branches to this argument. The first argues that hate speech

silences members of the targeted groups and effectively excludes them from participation in public

discourse. The second argues that hate speech is so irrational and inherently abusive that it serves

as an obstacle to a calm and fully deliberative process that is seen by many as the ideal of public

discourse. Id.

250. Id. at 170 (alteration in original).

25 1

.

Robert C. Post, Racist Speech, Democracy, and the First Amendment, 32 Wm. & MARY
L. Rev. 267, 271-77 (1991) [hereinafter Post, Racist Speech, Democracy]. See also Robert C.

Post, Constitutional Domains 293-303 (1995) (discussing the harms of hate speech)

[hereinafter Post, Constitutional Domains].



1995] HATE-SPEECH HARMS 295

(1) "Deontic" Harm. "The basic point is that there is an 'elemental
wrongness' to racist expression, regardless of the presence or

absence of particular empirical consequences such as 'grievous,

severe psychological injury.'"
252 A society committed to the ideals

of social and political equality cannot remain passive, and must

"issue unequivocal expressions of solidarity with vulnerable

minority groups and make positive statements affirming its
commitment to those ideals."

253

(2) Harms to Identifiable Groups. Racist expression harms those
groups that are the target of the expression. "On this view speech
likely to cast contempt or ridicule on identifiable groups ought to be

regulated to prevent injury to the status and prospects of the

members of those groups."254 "Racist expression is viewed as
especially unacceptable . . . [and] the oppression of already

marginalized groups . . ." is locked in.
255

(3) Harm to Individuals. Racist expression, like defamation, invasion
of privacy, and intentional infliction of emotional distress, harms

individuals. "These injuries include 'feelings of humiliation,

isolation, and self-hatred,' as well as 'dignitary affront . . . .'
256

[R]acial insults conjure up the entire history of racial discrimination

in this country."
257

Regulation of racist expressions directed toward

individuals may have to be "narrowed to those that are addressed to
specific individuals or that in some other way can be demonstrated
to have adversely affected specific individuals."

258
In the case of

preventing dignitary harms, "the injury might be understood to

inhere in the utterance of certain racist communications; if the focus

is on emotional damage, independent proof of distress might be

required to sustain recovery."
259

(4) Harm to the Marketplace of Ideas. Racist expression harms the
operation of the marketplace of ideas.

260
Depending on the way in

252. Post, Racist Speech, Democracy, supra note 251, at 272.

253. Id. (quoting David Kretzmer, Freedom ofSpeech and Racism, 8 CARDOZO L. Rev. 445,

456(1987)).

254. Id. at 273.

255. Id.

256. Id. at 274 (quoting Delgado, Words That Wound, supra note 3, at 143).

257. Id. (quoting Delgado, Words That Wound, supra note 3, at 157).

258. Id.

259. Id.

260. Id. at 275. See also Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J.,

dissenting); see generally ALEXANDER MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO SELF-



296 INDIANA LAW REVIEW [Vol. 29: 257

which such expression is understood to damage the marketplace of
ideas, the class of communications subject to legal sanction "might
be confined to communication experienced as coercive and
shocking, or it might be expanded to include communication
perceived as unconsciously and irrationally racist, or it might be

expanded still further to encompass speech explicitly devaluing and
stigmatizing victim groups."

261

(5) Harm to Educational Environments. Racist expression can harm the
"educational mission of colleges and universities."

262 "Some campus
regulation [of racist communications] . . . focuse[s] on the damage
that racist expression is understood to cause to particular individuals

or groups . . . and proscribefs] racist expression that 'will interfere

with the victim's ability to pursue effectively his or her education or

otherwise to participate fully in University programs and

activities.'"
263

Other college and university regulations seek to

inculcate the value of diversity. "[R]acist expression interferes with

education . . . because of the . . . harms . . . inflict[ed] on groups or

individuals or the marketplace of ideas, [and] also . . . because such

expression exemplifies conduct contrary to the educational goals that

colleges . . . and universities seek to instill."
264

Professor Mari Matsuda has written about the specific negative effects of

racist hate messages.
265

Victims of hate propaganda experience "physiological

symptoms and emotional distress ranging from fear in the gut, rapid pulse rate and

GOVERNMENT (1948); C. Edwin Baker, Scope of the First Amendment Freedom of Speech, 25

UCLA L. Rev. 964 (1978); Stanley Ingber, The Marketplace ofIdeas: A Legitimating Myth, 1984
DUKE L.J. 1; David A. Strauss, Persuasion, Autonomy, And Freedom OfExpression, 91 COLUM.

L. Rev. 334 (1991). The marketplace theory posits that the truth is most likely to emerge if no

limitations are placed on utterances that can plausibly be regarded as efforts to present reasons for

accepting or rejecting propositions whose truth the speaker asserts or denies. See IBEW, Local 501

v. NLRB, 181 F.2d 34 (2d Cir. 1950) (Judge Learned Hand writing for the court), aff'd, 341 U.S.

694 ( 1 95 1 ). For many, the marketplace theory is problematic. "The notion of ideas competing with

each other, with truth and goodness emerging victorious from the competition, has proven seriously

deficient when applied to evils, like racism, that are deeply inscribed in the culture." Delgado &
Stefancic, supra note 58, at 1281. We must also be cognizant of efforts by those who do not doubt
their premises or power to employ that power to suppress articulations of opposing positions.

Frederick Schauer, The First Amendment as Ideology, 33 Wm. & Mary L. Rev. 853, 865 (1992).
261

.

Post, Racist Speech, Democracy, supra note 25 1 , at 275.

262. Id. at 276.

263. Id. (quoting UNIVERSITY OF CALIFORNIA, UNIVERSITY WIDE STUDENT CONDUCT:

Harassment Policy (1989)).

264. Id. at 277; see infra Part V.

265. Mari J. Matsuda, Public Response to Racist Speech: Considering the Victim 's Story, 87

Mich. L. Rev. 2320, 2335-40 (1989).



1995] HATE-SPEECH HARMS 297

difficulty in breathing, nightmares, post-traumatic stress disorder, hypertension,

psychosis, and suicide. Professor Patricia Williams has called the blow of racist

messages 'spirit murder' in recognition of the psychic destruction victims

experience."
266 The personal freedom of targets is restricted, as they "quit [their]

jobs, forego education, leave their homes, avoid certain public places . . . and . .

. modify their behavior."
267 Some targets reject their "own identity as a victim-

group member. As writers portraying the African-American experience have
noted, the price of disassociating from one's own race is often sanity itself."268

"[0]ne's self-esteem and sense of personal security is [also] devastate[d]. To be
hated, despised, and alone is the ultimate fear of all human beings. However
irrational racist speech may be, it hits right at the emotional place where we feel
the most pain."

269
Thus, "racist hate messages cause real damage."

270

Professor Richard Delgado, in a pathbreaking article,
271

identified the harms

of racial insults. "[M]ental or emotional distress is the most obvious direct harm
caused by a racial insult . . ." writes Delgado, and "mere words, whether racial or

otherwise, can cause mental, emotional, or even physical harm to their target,
especially if delivered in front of others or by a person in a position of

authority."
272

"[A] racial insult is always a dignitary affront . . . [and] is a serious

transgression . . . because it derogates by race, a characteristic central to one's self-

image."
273

"Verbal tags" provide a means by which individuals may be treated as
class members and are "assumed to share all of the negative attitudes imputed to
the class."

274
Racial insults keep the targets compliant and inflict psychological

harm upon them.
275

Insults and negative stereotypes "can operate as 'self-fulfilling

prophecies,'"
276

and minority children begin to question "their competence,

266. Id. at 2336 (quoting Patricia J. Williams, Spirit-Murdering the Messenger: The

Discourse of Fingerpointing as the Law's Response to Racism, 42 U. MIAMI L. REV. 127, 129

(1987)).

267. Matsuda, supra note 265, at 2337.

268. Id.

269. Id. at 2338. Professor Matsuda also notes the effects of racist speech on non-target-

group members. The associational and other liberties of whites are curtailed by the use of racist

speech, and "dominant-group" members who object to hate propaganda share a "guilty secret: their

relief that they are not themselves the target of the racist attack." Id. In addition, "at some level,

no matter how much both victims and well-meaning dominant-group members resist it, racial

inferiority is planted in our minds as an idea that may hold some truth." Id. at 2339.

270. Id. at 2340. Accord Toni M. Massaro, Equality and Freedom ofExpression: The Hate

Speech Dilemma, 32 Wm. & MARY L. Rev. 21 1, 221 (1991).
271. Delgado, Words That Wound, supra note 3.

272. Id. at 143.

273. Id. at 143-44.

274. Id at 144.

275. Id. at 144-46.

276. Id. at 146 (quoting Martin Deutsch et al., Social Class, Race and Psychological

Development 175 (1968)).



298 INDIANA LAW REVIEW [Vol. 29:257

intelligence, and worth."
277

Children who are subjected to racial insults may react
aggressively or passively.

278
Aggressive reactions can lead to children being

labeled as troublemakers, while a passive reaction may result in children turning
"the aggressive response on themselves."

279

B. A Specific Example: The "N" Word

Racial insults and hate speech do not just happen; rather, such expression is

an intentional act. "Most people today know that certain words are offensive and
only calculated to wound. No other use remains for such words as 'nigger,'
'wop,' 'spick,' or 'kike.'"

280 To provide context and content to this discussion of
the harms of hate speech, let us focus on that paradigm of the concept of racial

slurs—the word "nigger."281
The "n" word, like other slurs and epithets, may be used by the speaker to

harm the sensibilities and attack the dignity of those subjected to that verbal attack.
"'Nigger' hark[s] back to slavery days"

282
and is more than mere intolerance or

incivility. "Nigger," used in certain contexts, is direct and open hostility and a

manifestation of racism.
283 One can humiliate an African-American

by calling him or her a "nig-r." Indeed, the image of someone being

called a "nig-r" is perhaps the paradigm of our concept of a racial slur.

In our historical context, the notion of blacks as "nig-rs" rationalized

their segregation on trains, in schools, in housing, in medical care, and

in jobs. It conjures up a stereotype of someone lazy, ignorant,

unintelligent and, of course, black. The violence of calling someone a

"nig-r" is not merely the refusal to accept someone's humanity, it is the

prophecy that, as a black, one will never be accepted. It designates one's

color as an unbridgeable divide, an irreducible wall. The epithet
becomes a disempowering evocation of a diffuse racial mindset which

will everywhere bar access to one's dreams. The evocation depends

entirely on social and historical context for its meaning.
284

Professor Andrew Hacker has described the harmful force of the word

277. Id. at 146.

278. Id. at 147.

279. Id. at 147.

280. Id. at 145 (footnote omitted).

28 1

.

See infra note 284 and accompanying text.

282. Delgado, Words That Wound, supra note 3, at 158.

283. Smolla, Free Speech, supra note 1 , at 153. Mark Fuhrman's use of the word illustrates

this point. See Christopher A. Darden, In Contempt (1996) (discussing Fuhrman's use of the

word "nigger" and its impact on the O.J. Simpson criminal trial).

284. D. Marvin Jones, The Death of the Employer: Image, Text, And Title VII, 45 VAND.

L. Rev. 349, 355-56 (1992) (footnotes omitted). Professor Jones does not spell out racial slurs in

a "personal effort to avoid harm to others, and to prevent desensitization to harmful words." Id. at

365 n.81 ; accord Matsuda, supra note 265, at 2329.



1995] HATE-SPEECH HARMS 299

nigger.

When a white person voices [the word "nigger"], it becomes a knife
with a whetted edge. No black person can hear it with equanimity or
ignore it as "simply a word." This word has the force to pierce, to
wound, to penetrate, as no other has. There have, of course, been terms

like "kike" and "spic" and "chink." But these are less frequently heard

today, and they lack the same emotional impact. Some nonethnic terms
come closer, such as "slut" and "fag" and "cripple." Yet, "nigger"
stands alone with its power to tear at one's insides. It is revealing that
whites have never created so wrenching an epithet for even the most

benighted members of their own race. 285

Of course, no one is ever a "nigger" or "kike" or "faggot" or "honky" or any other
slur or epithet.

286
That "logical" view of such expression is of small comfort,

however, to those persons who are subjected to epithets and are harmed by
intentional verbal abuse.

That the word "nigger" can be a fighting word is illustrated by the following
example. In February 1993, a group of young African-American males in
Hampton, Virginia were bowling at a local bowling alley. As two of the young
men headed to the snack bar, someone in a group of white bowlers called one of
the black youths, Allen Iverson, a "nigger." Iverson responded, "You ain't gonna
do nothing to me." One of the whites swung a chair at Iverson and set off a melee
between Iverson' s friends and the group of whites. Iverson (one of the top

basketball and football players in the country) was arrested (no whites were

charged),
287

was convicted of "maiming by mob," and was sentenced to fifteen

years in prison with ten years suspended. He was denied bail pending the appeal
even though felons convicted of more heinous crimes were routinely granted bail.

Iverson was subsequently released from prison pursuant to Virginia Governor

Douglas Wilder' s grant of partial clemency, and is attending Georgetown

University and is a member of that school's basketball team.288

The epithet "nigger" separates and isolates African-Americans from the rest
of society. While in the fourth grade, I eagerly headed out to recess to play

kickball with my group of "friends" (who happened to be white). I was told by my
"friends" that I could not play with them as I had routinely done before that day.
Why not? Because, one of my white classmates said, they could not play with
"niggers." I remember to this day being confused and angry. When I asked my
teacher why my "friends" were being so mean to me, she responded that I should

285. Andrew Hacker, Two Nations: Black and White, Separate, Hostile, Unequal
42(1992).

286. See Thomas C. Grey, Discriminatory Harassment and Free Speech, 14 Harv. J.L. &
Pub.Pol'y. 157, 164(1991).

287. See David Faulkner, The Agony and the Ecstacy, SPORTING News, Jan. 30, 1995, at 26;

Ned Zeman, Southern Discomfort, SPORTS ILLUSTRATED, Oct. 25, 1993, at 46-47.

288. J. A. Adande, It's Air Timefor Hoyas' Allen Iverson, WASH. POST, Nov. 27, 1994, at

Dl ; Faulkner, supra note 287.



300 INDIANA LAW REVIEW [Vol. 29:257

not make trouble.
"Nigger" is used by some whites who claim that they do not understand the

reactions of African-Americans to the use of that slur. For instance, an African-

American sixth grader threw a white classmate against a locker after the classmate
called a black girl a "nigger." The white student did not understand his black
classmate's reaction. "Why are you so angry? ... I didn't call you nigger . . . ,"289

During one of my eighth grade geography classes, a white student referred to
the African nation of "Niger" as "Nigger." My white classmates looked toward
me and laughed as I, the only black student in the class, did a slow burn and glared
at the person who had pronounced the name incorrectly. The teacher assured me
that he meant nothing by it, and we moved on to other continents. I was still angry
after class, and I remember the teacher asking me why I was so upset over a
"mistake." Shortly thereafter, a white student in my art class said that his parents
did not like President John F. Kennedy because Kennedy "liked niggers." I picked
up a lump of clay and smashed it into the student's face. (I was sent to the
principal's office and, as we said then, "tasted the paddle.")

"Nigger" is used to intimidate, to offend, and to terrorize African-Americans

on college and university campuses. A university counselor found the words
"Death Nigger" carved into his door.

290
In another incident, a message was slipped

under the door of an African student. The message read: "African Nigger do you
want some bananas? Go back to the Jungle."291 A college student walked into a
classroom and found the following written on a blackboard: "A mind is a terrible
thing to waste—especially on a nigger."

292

Can or should society regulate and prohibit the use of the word "nigger"
whenever that word is used as a racial epithet and slur?

293
I do not think that there

289. See Deborah W. Post, Race, Riots and the Rule ofLaw, 70 Denv. U. L. Rev. 237, 239

(1993) (describing an incident involving her son).

290. Barnes, supra note 15, at 989.

29 1

.

Racist Speech on Campus, supra note 3, at 433.

292. Id.

293. I anticipate the argument that a governmental body's regulation of the "epithet/slur" use

of the word "nigger" could also regulate the use of that word when it is directed by some African-

Americans at other African-Americans. Some have distinguished between "nigger" and "nigga"

or "niggah," a "pronunciation which carries with it a much different, and noninsulting, connotation

especially when used by blacks themselves." Dambrot v. Central Mich. Univ., 839 F. Supp. 477,

479 (E.D. Mich. 1993), aff'd, 55 F.3d 1177 (6th Cir. 1995). "Nigger" is also used by some

African-American rap artists in their music. Such use of the word by African-Americans is the

subject of debate within some segments of the African-American communities. See generally

Michael E. Dyson, Reflecting Black: African-American Cultural Criticism chs. 1 , 2

(1993); Paul Delaney, Amos 'n Andy in Nikes, N. Y. TIMES, Oct. 11, 1993, at A17; Mark Tran,

Taking The Rap, The GUARDIAN, Dec. 13, 1993, at 4.

By focusing on the harm factor, we can see the clear distinction between the epithet/slur

use of the word and the non-epithet/slur use. The epithet/slur use carries with it the potential and

actual harms of a direct infliction of injury on the target of the expression and a breach of the peace.

These harms are not likely (or are not as likely) to occur where the word is used as an expression



1 995] HATE-SPEECH HARMS 30

1

is any doubt that, in certain contexts, the word "nigger" can be a fighting word,

can cause harm to the targets of those who would use that repugnant term, and can
result in a breach of the peace. Imagine that a white person walks up to a black

person and screams into the black person's face, "You nigger! You're a nigger!"
Are we not concerned that the statement will provoke a verbal and perhaps
physical confrontation between the speaker and the hearer? Does not history,
reality, and common sense tell us that the use of this slur, epithet, and dagger of
hate speech can harm the individuals involved and society in general? Can we not
see that the potential and actual harms of the use of epithets and slurs are real and

costly, and that there may be significant and legitimate reasons for some carefully
crafted rule restricting the purported "free speech" right to call someone a "nigger"

or a "faggot" or a "kike" or a "spic" or a "wetback"?
294

If we accept the notion that the First Amendment does not grant the absolute
right to say whatever you want, whenever you want, to whomever you want, and
if we accept the view that words like "nigger," particularly when used as an epithet
in an assaultive and face-to-face confrontational manner, can be injurious and

harmful,
295 why is it so often assumed that the regulation of hate speech does or

will violate the First Amendment? Why do some argue, with little hesitation and
with much assurance, that hate speech should receive constitutional protection
even though other constitutional values, interests, and rights may be adversely
affected or even lost?

296
Is it because they disagree with the view that hate speech

causes any harm or injury to the targets of the speech? Or is it because they agree
and acknowledge that hate speech does harm and injure the targets of such speech,

but disagree on the extent of the harm?
297

Is it because they believe that the world

of "affection" or is used by an African-American rapper as part of his or her artistic expression.

294. In the context of the military, the United States Air Force Court of Military Review

affirmed the conviction and sentencing of a white service member to 25 days of confinement and

the forfeiture of two months' pay for using the words "nigger" and "spear chucker" when referring

to his white former girlfriend's new African-American boyfriend. United States v. Way, 1992 CMR
Lexis 357 (A.F.C.M.R. 1992).

295. Professor Nadine Strossen, a critic of hate speech codes, concedes that certain racially

harassing speech communicated in a certain context, such as "I've never tried a nigger," should be

subject to regulation consistent with First Amendment principles. Strossen, supra note 3, at 490.

See also Kingsley R. Browne, Title VII as Censorship: Hostile-Environment Harassment and the

First Amendment, 52 Ohio St. L. J. 481, 527 (1991) (a supervisor who refers to a subordinate as

"a fucking whore" or "a fucking nigger" may have uttered fighting words); Racist Speech on

Campus, supra note 3, at 452 (face-to-face racial insults are undeserving of First Amendment

protection).

296. See Daniel A. Farber et al., Constitutional Law: Themes for the

Constitution's Third Century 582 (1993).

297. Stefancic & Delgado, supra note 10, at 746. Stefancic and Delgado argue that "[t]hough
some disagree on the extent of the harm, few disagree that hate speech injures its victims." Id.

Other nations have recognized the harms of hate speech. See generally Elizabeth F. DeFeis,

Freedom ofSpeech and International Norms: A Response to Hate Speech, 29 STAN. J. INT'L L. 57

(1992); Eric Neisser, Hate Speech in the New South Africa: Constitutional Considerations for a



302 INDIANA LAW REVIEW [Vol. 29:257

is full of purportedly similar and harmful words and epithets, and that all members
of society must put up with and tolerate such expression?

Certain hate speech is low value speech and serves no purpose other than to
cause injury to the targets of such speech.

298
Hate speech

directed at individual members of a suspect class is uniquely valueless,
irrational, and undeserving of constitutional protection because it is
focused on irrelevant personal characteristics that the victim cannot

change. Hate speech and other kinds of expression that can be identified

as actionable harassment do not warrant this status because they
communicate a noxious idea. Hate speech is harassment because it is
targeted expression that serves no purpose other than the infliction of
serious harm on its victims.

299

If hate speech is low value, harassing speech that serves no purpose other than to
inflict harm on individuals, can that speech be regulated consistent with the First
Amendment using a harms-based approach?

IV. A Harms-Based Analysis

As discussed above,300 certain speech and expression is often regulated on the
basis of some assessment of the value and harm of the speech or expression. 301

Our system has carved out or tolerated dozens of "exceptions" to the free
speech principle: conspiracy; libel; copyright; plagiarism; official secrets;

misleading advertising; words of threat; disrespectful words uttered to a

judge, teacher, or other authority figure; and many more. These
exceptions (each responding to some interest of a powerful group) seem

familiar and acceptable, as indeed perhaps they are.
302

Land Recoveringfrom Decades ofRacial Repression and Violence, 5 SETON HALL CONST. L. J. 103

(1994). The Canadian Supreme Court, in a recent decision, used a harm-based rationale. See infra

notes 320-55 and accompanying text. The French have concluded that hate speech inflicts

"psychological and moral harm . . . [and] damages the individual and collective reputations of its

victims." For Germans, "a racial or ethnic attack is an affront to a person's core identity."

Stefancic & Delgado, supra note 10, at 746. Uruguayan law "expressly acknowledges the pain
caused by racist words or acts [and][t]he Netherlands recognizes that racist statements are insulting

and distressing." Id. "[I]n the United Kingdom, racial vilification is a form of defamation," and

in South Africa it is believed that racial insults harm "souls." Id.

298. Brownstein, supra note 63, at 205.

299. Id. at 206.

300. See supra Parts I and II.

301

.

See SUNSTEIN, supra note 4, at 125.

302. Richard Delgado & David H. Yun, Essay II: Pressure Valves and Bloodied Chickens:
An Analysis of Paternalistic Objections to Hate Speech Regulation, 82 CAL. L. Rev. 871, 883



1995] HATE-SPEECH HARMS 303

Is hate speech, regulated on some basis of harm,
303

one of the exceptions to

the First Amendment? If a harms-based analysis is used in the regulation of hate
speech, what magnitude of harm must be shown? Even if it is generally agreed
that hate speech harms the targets of such speech in that the target "suffers

emotional humiliation and personal loss of dignity" and feels "threatened,

humiliated, and diminished,"
304

can the harms be regulated without violating the

Constitution?

As discussed in Part III above, hate speech can result in deontic harm, can
harm identifiable groups and individuals, can hinder the operation of the
marketplace of ideas, and can deter the educational environment and mission of

colleges and universities.
305

Personal attacks and epithets have been likened to

slaps in the face
306

and it has been urged that hate speech causes real physiological

symptoms and emotional distress, and results in restrictions of personal freedom,
humiliation, loss of self-esteem, and violence.

307

It is not enough to merely say generally that hate speech is harmful and
therefore can or should be regulated. A more refined and nuanced analysis
requires that two additional and specific inquiries be made: (1) whether the

context, content, and mode of delivery of the speech in question warrants
regulation,

308
and (2) whether the specific harms of the at-issue hate speech are of

a type and degree that can be regulated without violating the First Amendment.
These inquiries must be considered in assessing the constitutionality of hate

speech regulation.

A regulator asking the first question must determine whether the particular

(1994).

303.

When government intervenes to tell one class of speakers to avoid saying hurtful things

to another, governmental aggrandizement is at best a remote concern. This is the reason

why regulation of private speech-libel, copyright, plagiarism, deceptive advertising, and

so on~rarely presents serious constitutional problems. The same should be true of hate

speech regulation.

Id. at 889.

304. Nicholas Wolfson, Free Speech Theory and Hateful Words, 60 U. ClN. L. REV. 1 , 2

(1991).

305. See supra notes 252-64 and accompanying text. On the regulation of hate speech in the
college and university setting, see infra Part V.

306. See supra note 242 and accompanying text.

307. See supra notes 245-59, 266, 272 and accompanying text.

308. This is another way of saying that the regulator must determine whether the particular

speech and the circumstances of its communication constitutes and falls within some definition of

"hate speech" that can be regulated. Of course, the broader the definition of hate speech, the more

expansive will be the reach of the regulation. Conversely, a narrower definition of hate speech will

limit the reach of the regulation and confine the areas and types of speech subject to regulation. On
the need for a contextual inquiry in hate speech matters, see John T. Nockleby, Hate Speech in

Context: The Case of Verbal Threats, 42 BUFF. L. REV. 653 (1994).



304 INDIANA LAW REVIEW [Vol. 29:257

hate speech can or should be restricted on the basis of its specific content, the

context in which it was uttered, and the way in which the speaker communicated
the particular speech. Consider again the example of the paradigmatic racial
slur—the word "nigger."309 Does that word constitute hate speech which can be
regulated under the Constitution? The answer to that question depends on an
assessment of context, content, and delivery. If, for example, the word "nigger"
is used as an epithet by a white person and is directed in a face-to-face and

confrontational manner to and against an African-American, that epithet is
potentially subject to regulation. Then, the second inquiry—whether the specific
harms of the at-issue expression can be regulated—must be answered as part of the
evaluation of the context-content-mode of delivery formulation. Recall the

example noted above in which a brawl in a bowling alley was precipitated by the
use of the word "nigger" by a white patron.

310
In that context, the word had a

particular, assaultive content and was delivered in such a fighting-words way that
actually caused the harms of a breach of the peace and violence.

But the same word can be and is used in other contexts and in other ways.
Suppose, for example, that a rapper uses the word "nigger" in a song,

311
or that

some African-Americans use, in a noninsulting manner, the word "nigger" or
"niggah" when referring to other African-Americans. 312 In those contexts, and
notwithstanding the fact that the word is the same as the word used in the bowling

alley, the word "nigger" may not fall within a hate-speech prohibition because of
the different contexts in which the word is used, because the word is not directed
in an assaultive, fighting words, face-to-face manner to a "target," and because the

use of the word is not likely to cause harm (i.e., is not likely to cause violence or
emotional distress).

Is a harms-based approach to the question of whether certain hate speech can

be constitutionally regulated workable? Is such an approach fundamentally

consistent or inconsistent with First Amendment jurisprudence and the common
understandings of what falls within and outside of First Amendment protection?
What distinguishes the concededly harmful consequences of speech and
expressions that are considered to be outside the protection of the First

Amendment313 from other harmful, yet constitutional, expressions that society has
decided must be tolerated by the targets of the harmful speech? Can a harms-
based approach provide a useful mechanism for the evaluation of particular

expressions mask the political and ideological choices society makes on a daily
basis when it regulates or does not regulate certain types of speech? Where is the
line drawn, and what stated and unstated values, principles, and beliefs will guide

those determinations?

309. See supra notes 282-94 and accompanying text.

310. See supra notes 287-88 and accompanying text.

311. See supra note 293

.

See supra note 293.

312. Id.

313. See supra Part II.



1995] HATE-SPEECH HARMS 305

A. Attractions OfA Harms-Based Approach

Recall the previous discussion concerning the harms caused by hate speech.
314

Certain hate speech is "assaultive speech" in which words are used as weapons to
"ambush, terrorize, wound, humiliate, and degrade,"

315
and the targets of the

speech are excluded from full participation in social, political, and educational

endeavors. Racial epithets and insults harm the targets of such expression directly,

by injuring their psyches and by encouraging third parties to engage in immediate

hostile action, or indirectly, by constructing images and stigma-pictures which

depict the targets as less than human.
316 As we have seen, harassment and direct

personal assaults harm their targets, and can arguably be regulated and are not
tolerated (as in other contexts) because of the harm and disruption that such
communications and actions cause. Persons who are called "kike," "nigger,"
"fag," or some other epithet feel threatened and diminished and suffer emotional
harm and humiliation as well as personal loss of dignity. 317

The question whether certain hate speech can be constitutionally regulated
must look at the adverse effects on the equality rights of those targeted by such

speech. Viewed generally, a harms-based analysis of hate speech—based on an
evaluation of the specific harms caused by specific hate speech communicated to

specific individuals in specific contexts and circumstances—is not inconsistent
with the harms-based First Amendment analysis applied in other areas. 318 A
harms-based approach is likely to identify and rectify some of the serious harms
caused by hate speech and could therefore provide a constitutional basis for

regulation.

Why should the First Amendment not protect certain kinds of hate speech
from regulation directed at preventing and remediating the harms of the speech?

One obvious answer is that those who are the targets of such speech will either be
freed from exposure to such speech or, if such speech is directed at them, will have

some means of seeking redress for any injury they may have suffered (thereby
discouraging hate-speakers from using such speech). Another answer is that

society' s expression of its disapproval of hate speech can serve as a significant and

universal statement of the norms and expected behavior of its citizenry with

respect to issues of race, gender, religion, and the like (just as society expresses its

disapproval of libel, perjury, misleading advertising, etc.). If, as in other areas of

constitutionally regulated speech, the government can show that the regulation is
necessary because the at-issue speech will produce sufficiently bad

3 1 4. See supra Part III.

315. Mari J. Matsuda et al., Words that Wound: Critical Race Theory, Assaultive

Speech, and the First Amendment 1 (1993).

316. Delgado & Stefancic, Essay I, supra note 6, at 855; Delgado & Stefancic, supra note
58, at 1276; Ronald Turner, "Little Black Sambo, " Images and Perceptions: Professor Cohen on

Professor Lawrence, 12 HARV. BLACKLETTER J. 131 (1995).

317. Wolfson, supra note 304. Such pejoratives are "arguably a mere profane grunt rather

than an idea or opinion." Id. at 16.

318. See supra Part II.



306 INDIANA LAW REVIEW [Vol. 29:257

consequences,
319

proponents of a harms-based analysis can plausibly argue and
conclude that the regulation of certain hate speech is also constitutional.

An example of an explicit harms-based approach to hate speech regulation is
found in a recent ruling by the Supreme Court of Canada, Regina v. Keegstra 320

wherein the court employed a methodology analogous to the American compelling
interest/narrowly tailored means test. 321 In that case, a high school teacher was
charged and convicted under section 319(2) of the Criminal Code of Canada
("Code")

322
with unlawfully promoting hatred against an identifiable group by

communicating anti-Semitic statements to his students. The teacher attributed
several evil qualities to Jews and described them as "treacherous," "subversive,"
"sadistic," "money-loving," "power hungry," and "child killers."323 In class, he
taught that Jewish people sought to destroy Christianity and were responsible for

depressions, anarchy, chaos, wars, and revolution. According to the teacher, Jews

"created the Holocaust to gain sympathy" and were deceptive, secretive, and

inherently evil.
324

Students were expected to reproduce his teachings in class and

on examinations, and their grades would suffer if they did not do so. 325

Addressing the teacher's appeal of his conviction, the Supreme Court of
Canada addressed the questions: (1) whether section 319(2) infringed the
guarantee of freedom of expression set forth in Section 2(b) of the Canadian

Charter of Rights and Freedoms ("Charter"),
326

and (2) whether the presumption

319. See supra Part II.

320. 3 S.C.R. 697 (1990). As discussed below, the Canadian "constitutional" free speech

provision at issue in Keegstra is "patterned after the United States' conception of free speech, and

the doctrinal system of each country uses some type of balancing test to determine the legitimacy

of restraints placed on constitutional liberties . . . ." Richard Delgado, Foreword: Essays on Hate

Speech, 82 Cal. L. Rev. 847, 847 n.2 (1994).

321

.

See Massey, supra note 1, at 187.

322. That section provides:

Every one who, by communicating statements, other than in private conversation,

wilfully promotes hatred against any identifiable group is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding two

years; or

(b) an offence punishable on summary conviction.

Criminal Code of Canada, R.S.C., ch. C-46, § 319(2) (1985).

323. Keegstra, 3 S.C.R. at 714.

324. Id.

325. Id.

326. Can. Const. (Sched. B to Constitution Act, 1982) pt. I (Canadian Charter of Rights and

Freedoms). Section 2(b) of the Charter provides:

2. Everyone has the following fundamental freedoms:

(b) freedom of thought, belief, opinion and expression, including freedom of the press

and other media of communication . .

.

The Keegstra Court explained that the reach of Section 2(b) is potentially very wide, "expression

being deserving of constitutional protection if 'it serves individual and societal values in a free and



1995] HATE-SPEECH HARMS 307

of innocence protected by Section 11(d) of the Charter
327

was unjustifiably

breached by reason of section 319(3)(a) of the Code,
328

which affords a defense of

truth to the wilful promotion of hatred speech in certain circumstances.
329

In analyzing the first issue of whether section 319(2) violated Section 2(b) of

the Charter, the Court used a two-step approach in which it asked: (1) "whether

the activity of the litigant who alleges an infringement of the freedom of
expression falls within the protected Section 2(b) sphere";

330
and (2) "whether the

purpose of the impugned government action is to restrict freedom of
expression."

331
In answering the first question, the Court found that the first step

democratic society.'" 3 S.C.R. at 727. Some of the convictions fueling the freedom of expression

are that seeking and attaining truth is an inherently good activity, participation in social and

political decision-making is to be fostered and encouraged, and diversity in forms of individual self-

fulfillment and human flourishing ought to be cultivated in a tolerant and welcoming environment

for the sake of both those who convey a meaning and those to whom meaning is conveyed. Id. at
728; Irwin Toy Ltd. v. Quebec (Attorney General), 1 S.C.R. 927 (1989).

327. Section 1 1 (d) of the Charter provides:

1 1 . Any person charged with an offence has the right

(d) to be presumed innocent until proven guilty according to law in a fair and public

hearing by an independent and impartial tribunal ....

328. Section 3 19(3)(a) provides:

(3) No person shall be convicted of an offence under subsection (2)

(a) if he establishes that the statements communicated were true.

329. Keegstra, 3 S.C.R. at 715.

330. Id.

"Expression" has both a content and a form, and the two can be inextricably connected.

Activity is expressive if it attempts to convey meaning. That meaning is its content.

Freedom of expression was entrenched in our Constitution and is guaranteed in the

Quebec Charter so as to ensure that everyone can manifest their thoughts, opinions, and

beliefs, indeed all expressions of the heart and mind, however unpopular, distasteful or

contrary to the mainstream. Such protection is, in the words of both the Canadian and

Quebec Charters, "fundamental" because in a free, pluralistic and democratic society we

prize a diversity of ideas and opinions for their inherent value both to the community

and to the individual.

Id. at 729 (quoting Irwin Toy, 1 S.C.R. at 968). In other words, the Keegstra Court stated, "the

term 'expression' as used in s. 2(b) of the Charter embraces all content of expression irrespective

of the particular meaning or message sought to be conveyed . . . ." Id. (references omitted).

331. Id. Government action having the purpose of infringing freedom of expression

necessarily infringes the right guaranteed by Section 2(b) of the Charter, the Court wrote:

If, however, it is the effect of the action, rather than the purpose, that restricts an

activity, s. 2(b) is not brought into play unless it can be demonstrated by the party

alleging an infringement that the activity supports rather than undermines the principles

and values upon which freedom of expression is based.

Id. at 729-30.



308 INDIANA LAW REVIEW [Vol. 29:257

was satisfied, reasoning that communications which wilfully promote hatred
against an identifiable group convey a meaning and are intended to do so by those
who make them.332 The type of meaning conveyed is irrelevant to the question of
whether Section 2(b) was infringed. The Court stated the fact that the expression
covered by [section] 319(2) is invidious and obnoxious is beside the point. "It is

enough that those who publicly and wilfully promote hatred convey or attempt to
convey a meaning, and it must therefore be concluded that the first step of the . .

. test is satisfied."
333

Responding to the second question, the Court concluded that

the purpose of section 319(2)
334

was to restrict the content of expression by
singling out particular meanings that are not to be conveyed.

335
"Section 319(2)

therefore overtly seeks to prevent the communication of expression, and hence

meets the second requirement ... of the test."336 Accordingly, the Court
concluded that section 319(2) constituted an infringement of the freedom of

expression guaranteed by Section 2(b) of the Charter.
337

The Court's conclusion that section 319(2) constituted an infringement of the
freedom of expression guaranteed by Section 2(b) did not conclude the inquiry.

The Court then asked whether such an infringement was justifiable under Section
1 of the Charter

338
as a reasonable limit in a free and democratic society.

339 To

332. Id. at 730.

333. Id.

334. See supra note 322.

335. Keegstra, 3 S.C.R. at 730.

336. Id.

337. Id.

338. Section 1 of the Charter provides:

1 . The Canadian Charter ofRights and Freedoms guarantees the rights and freedoms

set out in it subject only to such reasonable limits prescribed by law as can be

demonstrably justified in a free and democratic society.

Can. Const. (Constitution Act, 1982) pt. I (Canadian Charter of Rights and Freedoms), § 1. The

Court noted that the words "free and democratic society" "embraces [sic] the very values and

principles which Canadians have sought to protect and further by entrenching specific rights and

freedoms in the Constitution . . . ." Keegstra, 3 S.C.R. at 736; see also Regina v. Oakes, 1 S.C.R.

103(1986).

339. As the Court noted, there is no equivalent to Section 1 of the Charter in the United States

Constitution.

Of course, American experience should never be rejected simply because the Charter

contains a balancing provision, for it is well known that American courts have fashioned

compromises between conflicting interests despite what appears to be an absolute

guarantee of constitutional rights. Where § 1 operates to accentuate a uniquely

Canadian vision of a free and democratic society, however, we must not hesitate to

depart from the path taken in the United States. Far from requiring a less solicitous

protection of Charter rights and freedoms, such independence of vision protects these

rights and freedoms in a different way. . . . [T]he international commitment to eradicate

hate propaganda and, most importantly, the special role given equality and

multiculturalism in the Canadian Constitution necessitate a departure from the view,



1995] HATE-SPEECH HARMS 309

answer this question, the Court had to decide whether the infringement of Section

2(b), occasioned by section 319(2), was justifiable in a free and democratic

society. In formulating its answer, the Court looked to section 3 1 9(2) and asked

"whether the amount of hate propaganda in Canada causes sufficient harm to
justify legislative intervention of some type."

340
In assessing harm, the Court

looked to: (1) the 1965 Cohen Committee report which found that the incidence
of hate propaganda in Canada was not insignificant;

341
(2) the 1984 report of the

House of Commons Special Committee which observed that increased
immigration and periods of economic difficulty had produced an atmosphere ripe

for racially motivated incidents;
342

(3) international human rights principles;
343

and

reasonably prevalent in America at present, that the suppression of hate propaganda is

incompatible with the guarantee of free expression.

Keegstra, 3 S.C.R. at 743. See also id. at 738-44 (discussing American constitutional

jurisprudence).

340. Id. at 745.

341. Report of the Special Committee on Hate Propaganda ( 1 965) (also known as the

Cohen Committee Report). The 1965 Cohen Committee Report stated that there were a small

number of persons and a larger number of organizations "dedicated to the preaching and spreading

of hatred and contempt against certain identifiable minority groups in Canada." Keegstra, 3 S.C.R.

at 745 (quoting the Cohen Committee Report). The Committee noted the results of the use of hate

propaganda in other countries,

particularly in the 1930's when such material and ideas played a significant role in the

creation of a climate of malice, destructive to the central values of Judaic-Christian

society, the values of our civilization. The Committee believes, therefore, that the actual

and potential danger caused by present hate activities in Canada cannot be measured by

statistics alone.

Id.

342. In that report, the House of Commons Special Committee on the Participation of Visible

Minorities in Canadian Society noted an increase in hate propaganda in virtually every part of

Canada.

Not only is it anti-semitic and anti-black, as in the 1960s, but it is also now anti-Roman

Catholic, anti-East Indian, anti-aboriginal people and anti-French. Some of this material

is imported from the United States but much of it is produced in Canada. Most

worrisome of all is that in recent years Canada has become a major source of supply of

hate propaganda that finds its way to Europe, and especially to West Germany.

Keegstra, 3 S.C.R. at 745-46 (quoting the Special Committee report).

343. The Court referred to the International Convention on the Elimination of All Forms of

Racial Discrimination, adopted by the United Nations in 1966. The convention contains a

resolution that the state parties agree to

adopt all necessary measures for speedily eliminating racial discrimination in all its

forms and manifestations, and to prevent and combat racist doctrines and practices in

order to promote understanding between races and to build an international community

free from all forms of racial segregation and racial discrimination.

Id. at 750-51 (quoting the 1966 Convention). See also id. at 751-55 (discussing other international

covenants and conventions dealing with racism and hatred).



3 1 INDIANA LAW REVIEW [Vol. 29: 257

(4) other provisions of the Charter.
344

In the Court's view, the presence of hate propaganda in Canada was
sufficiently substantial to warrant concern. The Court recognized two types of
injuries caused by hate propaganda. "First, there is harm done to members of the
target group. It is indisputable that the emotional damage caused by words may
be of grave psychological and social consequence. . . . Words and writings that
wilfully promote hatred can constitute a serious attack on persons belonging to a

racial or religious group . . . ."
345

Those individuals targeted by hate propaganda

therefore are humiliated and degraded, and the "derision, hostility and abuse

encouraged by hate propaganda [has] a severely negative impact on the

individual's sense of self-worth and acceptance."
346

The impact of such
propaganda may "cause target group members to take drastic measures in reaction,
perhaps avoiding activities which bring them into contact with non-group

members or adopting attitudes and postures directed towards blending in with the
majority."

347

A second harmful effect of hate propaganda, the Court continued, is its
influence on society at large.

348
Individuals can be persuaded to believe almost

anything if information or ideas are communicated by the right technique and in

the proper circumstances. "It is thus not inconceivable that the active

dissemination of hate propaganda can attract individuals to its cause, and in the

process create serious discord between various cultural groups in society."
349

"Even if the message of hate propaganda is outwardly rejected, there is evidence

that its premise of racial or religious inferiority may persist in a recipient's mind
as an idea that holds some truth, an incipient effect not to be entirely discounted
. . .

."35° "The threat to the self-dignity of target group members is thus matched
by the possibility that prejudiced messages will gain some credence, with the
attendant result of discrimination, and perhaps even violence, against minority

groups in Canadian society."
351

The Court thus concluded that in enacting section 319(2) "Parliament's
purpose was to prevent the harm identified by the [Cohen] Committee as being

caused by hate-promoting expression."
352

That objective was of the utmost

344. See Can. Const. (Constitution Act, 1982) pt. I (Canadian Charter of Rights and

Freedoms), § 15 (every individual is equal before the law and has the right to equal protection and

equal benefit of the law without discrimination based on race, national and ethnic origin, colour,

religion, sex, age, or mental or physical disability); Can. CONST. (Constitution Act, 1982) pt. I

(Canadian Charter of Rights and Freedoms), § 27 (the Charter "is to be interpreted in a manner

consistent with the preservation and enhancement of the multicultural heritage of Canadians").

345. Keegstra, 3 S.C.R. at 746.

346. Id.

347. Id.

348. Id. at 747.

349. Id.

350. Id. at 747-48 (citation omitted).

351. Id. at 748.

352. Id. at 749.



1 995] HATE-SPEECH HARMS 3 1

1

importance, the Court stated, because "Parliament has recognized the substantial

harm that can flow from hate propaganda, and in trying to prevent the pain
suffered by target group members and to reduce racial, ethnic and religious tension

in Canada, has decided to suppress the wilful promotion of hatred against

identifiable groups."
353

Accordingly, the Court found that a "powerfully

convincing legislative objective exists such as to justify some limit on freedom of
expression."

354
Consequently, the infringement of the teacher's freedom of

expression, as guaranteed by Section 2(b) of the Charter, was upheld as a

reasonable limit prescribed by law in a free and democratic society.
355

Keegstra is a real example of the way in which a harms-approach to hate
speech works. Canada recognizes that hate propaganda can attack the targeted

person and has expressly recognized the ways in which such propaganda harms

the targets psychologically and emotionally, causing them to withdraw from

society and to forego other endeavors which are available to and enjoyed by

persons not targeted. Further, Canada looks beyond the harms suffered by targeted

individuals and to the impact of hate propaganda on society. It recognizes that

hate propaganda and hate speech are not just spoken and forgotten; rather, such

expressions can become part of the social fabric and context and reflect and lead
to discrimination and even violence against those who are defiled by such speech.
The Canadian Parliament felt that the degree and nature of the actual and potential

harm created by hate propaganda were sufficiently serious to require the regulation

of such speech. The Canadian Supreme Court, convinced of those harms, upheld

that country's efforts to proscribe and punish hate propaganda.

Note the contrast between the American and Canadian approaches to hate

speech regulation as illustrated by R.A. V. and Keegstra, a contrast noted by one

scholar in the following passage:

American courts convey the state's unwieldy ambitions partly through

dramatic and even feverish rhetoric in which the judges imagine an

apparently endless array of potentially silenced speakers and threats to

democracy. . . . The deliberative and careful terms in which the
Keegstra majority recreates legislative motivation and traces out the

sources and justifications for the regulation of hate speech help to create

a very different image of the state. The language is not sensational or
dramatic, but calm and reasoned. It is less overtly metaphorical and less

figurative than the language in the American cases. The state is depicted
as careful and responsible, and the measured rhetoric of the Court subtly

reinforces this image.
356

Canada's high court speaks of community and multiculturalism, democracy and
mutual respect; the American high court discusses protecting the right of free

353. Id. at 758.

354. Id.

355. Id. at 787, 795.

356. Mayo Moran, Talking About Hate Speech: A Rhetorical Analysis of American and

Canadian Approaches to the Regulation ofHate Speech, 1994 Wis. L. REV. 1425, 1492.



312 INDIANA LAW REVIEW [Vol. 29:257

speech about disfavored topics and ideas and the constitutional prohibition against
the imposition of restrictions on hate speakers. The American Court's analysis of
hate speech is detached and formalistic.

357
Canada's Supreme Court looked to

several kinds of extraconstitutional sources, including international human rights
documents to which Canada is a party; the United States Supreme Court does not
look to such sources.

358 The Canadian and American high courts also differ on the
private versus public aspects of hate speech.

The American approach to hate speech classifies the target's interest in
protection as purely private. The predominant technique of critics,
which relies on story-telling and the creation of empathy, implicitly

accepts that classification and hopes to generate enough sympathy to
make the private plight a matter of public concern. But the failure to
challenge the implicit classification of that interest as purely private

allows the official discourse to characterize regulation as illegitimate

favoritism and to ignore the alternative perspectives. In contrast, the

Canadian hate speech cases find that the regulation of hate speech

protects not just the targets, but also important public interests, including

equal participation in public life, democracy and respect for human
dignity and equality. These arguments may further a richer discussion
of the potential public—as opposed to merely private—issues in the

regulation of hate speech.
359

Is the Canadian harms-based approach far removed from American
jurisprudence on hate crime issues? Consider the United States Supreme Court's
decision in Wisconsin v. Mitchell.

360
Although that case dealt with penalty

enhancements for hate crimes and not hate speech, the Court did recognize that a

state may punish a defendant's discriminatory motive or reason for acting, just as
governments do under state and federal antidiscrimination laws that have been

upheld against constitutional challenge.
361

The Wisconsin statute "singles out for
enhancement bias-inspired conduct because this conduct is thought to inflict

greater individual and societal harm. For example, according to the State and its

amici, bias-motivated crimes are more likely to provoke retaliatory crimes, inflict

357. Id. at 1449, 1461.

358. Id. at 1499 n.257. Also, unlike Canada, the United States is not a party to any of the

international instruments mentioned in Keegstra. Id.

359. Id. at 1500.

360. 1 13 S. Ct. 2194 (1993) (discussed supra notes 218-26 and accompanying text).

361. The Mitchell Court noted that Title VII of the Civil Rights Act of 1964 makes it

unlawful for an employer to discriminate against an employee because of such individual's race,

color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)( 1 ) (1988). In Hishon v. King &
Spalding, 467 U.S. 69, 78 (1984), the Court rejected the argument that Title VII was an

unconstitutional infringement of employers' First Amendment rights. In R.A.V. v. City of St. Paul,

505 U.S. 377 (1992) (discussed supra notes 182-216 and accompanying text), the Court referred

to Title VII as an example of constitutionally permissible content-neutral regulation of conduct.



1 995] HATE-SPEECH HARMS 3 1

3

distinct emotional harms on their victims, and incite community unrest."362 The
desire of the state to "redress these perceived harms provides an adequate

explanation for its penalty-enhancement provision over and above mere

disagreement with offenders' beliefs or biases."
363

Thus, a state's assessment of

harm and its enactment of laws to redress the perceived harms is permissible, at
least in the hate crimes context.

364

The use of a harms-based analysis in Mitchell shows that a harms-based
analysis of hate speech is not a novel concept.

365
Professor Richard Delgado has

argued that the courts should utilize a harms-based analysis—specifically, the tort
of intentional infliction of emotional distress— to redress racial insults personally
directed at individuals in the workplace and other settings.

366
Defining a racial

insult as "language intended to demean by reference to race, which is understood

as demeaning by reference to race, and which a reasonable person would

recognize as an insult,"
367

he argued for judicial application of tort analysis to

incidents involving racial insults because the "racial insult remains one of the most

pervasive channels through which discriminatory attitudes are imparted."
368

This

argument—that we should look "to tort law and . . . that racially, ethnically, and
sexually offensive public speech should be prohibited because it intentionally

inflicts emotional harm on offended listeners"
369—warrants consideration.

362. Mitchell, 1 13 S. Ct. at 2201 (citation omitted).

363. Id.

364. Professor Mayo Moran offers another explanation for the Court's decision in Mitchell.

If the question whether certain speech is constitutionally protected is decided by those in positions

of power, and if those individuals will find speech sufficiently dangerous to suppress only where

they feel personally threatened, speech will only be suppressed when it appears to those in power

that the speech at issue is more than merely offensive and that the speech attacks or threatens them.

Moran, supra note 356, at 1457 n.124. Conversely, when speech attacks those individuals who do

not have social or institutional power, the speech will be constitutionally protected because, in the

eyes of the decisionmakers, the speech does not appear to be dangerous. Id.

The Mitchell Court "finds itself able to sufficiently imagine the perspective of the victim to

find that bias-motivated crimes 'inflict distinct emotional harms on their victims.'" Id. (citation

omitted). Thus, judges who do not "enjoy the same comfort of distance" in hate crime cases as they

do in hate speech cases may be more inclined to allow regulation of the former and to invalidate

regulation of the latter. "[I]t does not seem accidental that the Court is somewhat incredulous about

the claim of harm when it is the kind of harm that could never happen to them, and sympathetic

when it is the kind of harm that could befall them and those they care about." Id.

365. Harm is an explicit or unstated factor in the constitutional analysis of other areas of

speech and communication. See supra Part II.

366. Delgado, Words That Wound, supra note 3; see also Nockleby, supra note 308, at 689-

71 1 (arguing for a new, contextually-based tort to redress harms from racial intimidation).

367. Delgado, Words That Wound, supra note 3, at 167.

368. Id. at 135.

369. David Goldberger, Sources ofJudicial Reluctance to Use Psychic Harm as a Basisfor
Suppressing Racist, Sexist and Ethnically Offensive Speech, 56 BROOK. L. REV. 1 165, 1 166 (1991).



314 INDIANA LAW REVIEW [Vol. 29:257

The harm, which has been variously characterized as an assault or as an
infliction of psychic trauma, is argued to be the same as the harm
redressed by the private tort of intentional infliction of emotional harms
recognized by the Second Restatement of Torts and most jurisdictions.
Thus, given such harm, the public interest in redressing it overrides any

competing first amendment interests. 370

Examples of harmful and actionable conduct and speech include a restaurant
manager's shouting at a black person that he could not be served because he was
black,

371
and a white supervisor shouting at a black employee, "You goddam [sic]

'niggers' are not going to tell me about the [work] rules. I don't want any
'niggers' working for me. I am getting rid of all the 'niggers' . . . ."372 In another
case, a flight attendant yelled at a black passenger, "Get out of the plane you black

bastard."
373 The district court wrote that the "galvanic effect of such speech which

is intended to turn racial animus into racially-based hostile conduct at least

warrants the spotlight of full exposition at trial."
374

These cases illustrate the way
in which the intentional infliction of emotional distress tort can be utilized to
address the hurt and harms of epithets and racist speech. If such harm can be
redressed via tort without First Amendment problems, then why can it not be
similarly concluded that certain hate speech regulations are consistent with the

First Amendment? Such an argument is certainly plausible. But, as discussed
below, the judiciary has not been persuaded by plaintiffs' claims that the

emotional harm inflicted by certain language (including hate speech) is intolerable

and constitutionally regulable.
375

One can also anticipate the objection that regulation of hate speech will
require line-drawing by regulators and courts. While that general objection may
have some force,376 it is also true that judges "inevitably decide open issues—and
many constitutional cases raise such issues—in light of their experiences, interests,
perceptions, needs, and biases."

377
That judges may be called on to decide hate

speech cases and to sequester unconstitutional from constitutional speech is not

370. Id. (footnotes omitted). "As persuasive as the argument seems, the judiciary has shown

little more sympathy for it than for other arguments favoring suppression of offensive speech." Id.

37 1

.

Fisher v. Carrousel Motel Hotel, Inc., 424 S.W.2d 627, 630 (Tex. 1967) (the "defendant

is liable not only for contacts which do actual physical harm, but also for those which are offensive

and insulting").

372. Alcorn v. Anbro Engineering, Inc., 468 P.2d 216, 217 (1970).

373. Doricent v. American Airlines, Inc., 1993 U.S. Dist. LEXIS 15143 (D. Mass. 1993).

374. Id. at *31 (footnote omitted). See also id. at *31 n.7 ("such racially motivated galvanic

hate speech is today so far beyond the mores of our people as to warrant an action for intentional

infliction of emotional distress").

375. Goldberger, supra note 369, at 1 190.

376. See infra note 379 and accompanying text.

377. Becker, supra note 36, at 976. Accord Paul Brest, Who Decides?, 58 S. Cal. L. Rev.

661 (1985); Michael J. Perry, The Authority of Text, Tradition, and Reason: A Theory of
Constitutional "Interpretation, " 58 S. CAL. L. REV. 551 (1985).



1 995] HATE-SPEECH HARMS 3 1

5

a unique proposition.

B. Objections To A Harms-Based Approach

What about the other side of the ledger? What arguments can be made in
support of the position that a harms-based analysis is not a useful or proper way
to approach the issue of hate speech regulation? The fact that some speech causes

harm is indisputable.
378 How can we distinguish harmful and constitutionally

regulable speech from lawful (i.e., non-regulable) speech? What guides the
decisionmaker or the factfinder in the search for the answer to these questions?

That some speech causes harm does not mean that all harmful speech can be
constitutionally regulated, for we know that not all speech causes "harm" that rises
to a level justifying governmental regulation. Distinguishing regulable harm from

non-regulable harm falls to the decisionmaker or factfinder who must draw lines
without violating the First Amendment and with due concern for the censorship
and self-censorship which can result whenever the government does not permit

certain speech. The problem for the decisionmaker is how to approach the notion
that "harm must have occurred because the particular utterance in question is itself

harm producing."
379

For example, a speaker utters an epithet that allegedly causes emotional

harm to members of a particular minority group. Whether the epithet in

fact caused emotional harm is a judgment that the decisionmaker can

hardly make independently from her own judgment that this particular
epithet caused harm. Professor Tribe writes that, "[t]he Constitution may
well allow punishment for speaking words that cause hurt just by their

being uttered and heard."
380

Professor Anthony D'Amato, discussing the problem of assessing harm in a
constitutional manner and basing his argument on what he calls "pragmatic
indeterminacy,"

381
has argued that the Constitution "should not, and more

importantly cannot, allow punishment for speaking words that themselves

allegedly 'cause hurt.'"
382

Professor D'Amato is aware of the reality that judges

378. See Laurence H. Tribe, American ConstitutionalLaw § 12-8, at 837 (2d ed. 1988):
One may not be privileged to mislead a blind man into thinking that a window is

a door or to extort a sum for telling him the truth. Justice Holmes was surely right that

the first amendment does not protect "a man in falsely shouting fire in a theater and

causing a panic." (citations omitted).

379. Anthony D'Amato, Free Speech and Religious, Racial, and Sexual Harassment:

Harmful Speech and the Culture of Indeterminacy, 32 Wm. & MARY L. REV. 329, 330 (1991).
380. Id. (footnotes omitted).

381. Id. at 330. "Pragmatic indeterminacy is the current version of American legal realism,

stating that law-words, whether statutory or precedential, cannot constrain judges to decide a

particular case in a particular way." Id. (footnotes omitted). See also Anthony D'Amato,

Pragmatic Indeterminacy, 85 Nw. U. L. REV. 148 (1990).

382. D'Amato, supra note 379, at 330.



316 INDIANA LAW REVIEW [Vol. 29:257

have to rule on controversies involving speech.

To the extent that the speech causes harm that is provable independently
of a judgment that the particular words uttered caused harm in
themselves, judges must resolve those cases under the . . . fundamental
proposition that courts exist to address harms. However, cases that
consider whether the actual words uttered must have produced the
alleged harm, come close to begging the question whether a harm
occurred.

383

That passage should be read and understood in connection with Professor

D'Amato's view that no utterances are harmful per se even though many
utterances can have harmful consequences to an audience.

Independent proof of harmful consequences is possible. For example,

if I write falsely that someone is a perjurer and my writing leads to his
dismissal from his job, then assuming he proves this causal chain, my
statement will have defamed that person, and he will have an action in
libel against me.

384

It is not clear that Professor D'Amato's analysis does anything more than punt
the tough question of whether society can regulate certain harmful expressions,

like hate speech, consistent with the First Amendment, on the basis that society
has made a determination that certain hate speech harms others in intolerable and
demonstrable ways. Consider D'Amato's following example.

Suppose someone calls me a "wop." Are my feelings hurt because the
epithet is true or because it is false? If someone calls me a "mickey,"
presumably I should not feel hurt because the epithet does not apply.

But then, why should I feel hurt if I am called a "wop"? Have I
impliedly chosen to say that it applies by virtue of my very declaration
that the statement has harmed me?385

We should not confuse harm viewed from the exceptional or atomistic
perspective with harm viewed from the more common and broader perspective that
looks at and accounts for variant harms caused by such speech. It may be true that
some individuals, like Professor D'Amato, would not be upset or have their
feelings hurt in the event someone calls them a "wop." It may also be true that a
particular individual who is black would not be upset or harmed by someone who
calls her a "nigger." The absence of an adverse reaction by certain persons does

not tell us anything about what is happening to other persons of color throughout

the country, however, and does not tell us if or why D'Amato's or another
individual's experiences are the baselines from which we can and should view the
propriety of a harms-based approach. We should hesitate before extrapolating
from individual assertions, anecdotes, and arguments as we argue for or against,

383. Id., at 335 (footnote omitted).

384. Id. at 344.

385. Id. at 345.



1 995] HATE-SPEECH HARMS 3 1

7

and formulate and implement, public policy in the hate-speech area.

Is it possible to add some facts to Professor D'Amato's example which would

at least call into question the notion that the epithet "wop" is really no big deal?
Recall the mode of First Amendment analysis discussed above—content, context,
and mode of delivery. What if one of Professor D'Amato's best friends called him
a "wop"? What if the person calling him a "wop" was one of his students in the
middle of a class? What if the person using the epithet has cornered D'Amato and
is yelling the epithet at him in a face-to-face manner? Plug in any other epithet
and any other person and context into the foregoing questions and ask yourself

whether we can so easily dismiss the harms of epithets and slurs and come to
overall conclusions about what is harmful and what is not.

It is noteworthy that some courts have not been receptive to intentional
infliction of emotional distress claims based on asserted harms caused by

expression. In Collin v. Smith,
3 *6

the court held that the plaintiffs could not rely

on the tort in their effort to bar public speech by Nazis. The "problem with
engrafting an exception on the First Amendment for such situations is that they are
indistinguishable in principle from speech that 'invites dispute . . . induces a

condition of unrest, creates dissatisfaction with conditions as they are, or even stirs

people to anger.'"
387 And in Hustler Magazine v. Falwell™ the Supreme Court

rejected the argument that liability for certain outrageous public statements should

be measured pursuant to the Restatement of Torts:

Generally speaking the law does not regard the intent to inflict

emotional distress as one which should receive much solicitude, and it
is quite understandable that most if not all jurisdictions have chosen to

make it civilly culpable where the conduct in question is sufficiently
"outrageous." But in the world of debate about public affairs, many
things done with motives that are less than admirable are protected by the

First Amendment.389

The Court determined that the vagaries of Virginia's intentional infliction of
emotional harm tort "made line-drawing impossible and rendered it vulnerable to

subjective application."
390

Outrageousness in political and social discourse is

inherently subjective, the Court reasoned, and "would allow a jury to impose

liability on the basis of the jurors' tastes or views, or perhaps on the basis of their

dislike of a particular expression."
391

Similar concerns about inherent subjectivity

could arise in hate speech cases.

The tort approach to hate speech regulation could be difficult to reign in and
could assign the risk of harmful expression to the speaker rather than the

386. 578 F.2d 1197 (7th Cir.), cert, denied, 439 U.S. 916 (1978).

387. Id. at 1206 (quoting Terminiello v. City of Chicago, 337 U.S. 14 (1949)).

388. 485 U.S. 46(1988).

389. Id. at 53.

390. Goldberger, supra note 369, at 1 1 89.

391. Falwell, 485 U.S. at 55.



3 1

8

INDIANA LAW REVIEW [Vol. 29: 257

listener.
392 Some will

find unattractive the degree of paternalism involved in restricting speech

on the basis of a few unreasonable although foreseeable reactions, when
these do not constitute a significant threat to social order. Moreover,
while these approaches would compel actors to internalize costs of
'risky' speech, we do not allow it to reap the equally fortuitous benefits.
The net result of this asymmetry would be to discourage speech. 393

Judicial reluctance to treat harm as a basis for regulation may also be
explained by the general view that the customary rationales articulated by courts

in offensive speech cases are dispositive and, thus, any related harm question can
be safely ignored.

394 On that view, the courts cannot engage in principled line-
drawing that will reflect free speech values.

Because of the plausibility and analytical consistency of the line-

drawing rationale, it has substantial persuasive power. It reflects the

insight that courts cannot draw clear and objective lines to provide an
absolutely reliable means of distinguishing communication that
genuinely causes emotional harm from that which offends and provokes

but does not cause palpable harm. Any attempt to draw a line will
ultimately involve a linguistic formula articulated in a statute or judicial

opinion that will be subject to the obvious difficulty of drawing a bright

line to delineate permissible speech activities. The difficulty is
particularly acute because the formula must also provide a description of

the amount of psychological pain that must be suffered by alleged

victims before the speech can be punished or suppressed. The
measurement of such pain in litigation is an uncertain process, if only

because the most important evidence of the pain will be the victim's

subjective description of it.
395

392. Gates, supra note 44, at 1 6.

393. Id. at 16-17.

394. Goldberger, supra note 369, at 1 199. That view confuses offensive speech with speech

that causes identifiable and legally cognizable harms. Offensive speech is "language, public

displays, or discomforts associated with communication that triggers an unpleasant emotional

response in at least some listeners and that steps over the bounds of perceived good taste."

Nockleby, supra note 308, at 667. Harmful speech does "more than trigger an adverse emotional

reaction in a listener." Id. at 668 (footnote omitted). For example, libel has no constitutional value

"because libel harms the reputations of individuals in a way that makes it difficult for them to

function in society. Libel not only 'offends,' but also harms, the person about whom the libel is

disseminated." Id. at 668-69 (footnote omitted).

395. Goldberger, supra note 369, at 1200. Professor Goldberger notes that in spite of the

persuasiveness of the problem of line-drawing rationale, that rationale alone is not sufficient to

explain the judiciary's failure to consider emotional harms more carefully. Courts engage in line

drawing all the time in First Amendment and other areas of the law, including obscenity, application

of the clear and present danger test, libel laws, and the fighting words doctrine. Id. at 1202. "[T]he



1 995] HATE-SPEECH HARMS 3 1

9

Moreover, courts may fear the confusion and possible failure to distinguish anger
from pain. "[A]nger is easily confused with pain. As a result, an offended listener
may be tempted to assert that he has been harmed even though he is instead
experiencing anger. This is encouraged by the law's tendency to be more
sympathetic to redressing harm than to redressing anger."

396
Applying this to the

hate speech arena, courts may be reluctant to allow regulation of such speech
where anger and harm

397
are intermingled or inseparable.

A strong objection to an approach in which the only relevant issue is one of
harm

398
has been voiced by Professor Cass Sunstein:

Speech may be regulated if government can make a demonstration that
the speech at issue will produce sufficiently bad consequences. This is

the only question for the Court. Would it not be possible, and desirable,
to have a "single-tier" First Amendment, in the sense that all speech is
presumed protected, but we allow government to regulate speech in those
rare cases where the harm is very great?

On reflection, this position does indeed seem unacceptable. If it
were the law, the same standards of harm would be applied to all speech.

This would mean that regulation of (for example) campaign speeches
must be tested under the same standards applied to regulation of false

commercial speech, child pornography, conspiracies, libel of private

persons, and threats. If the same standards were applied, one of two

results would follow; and both seem to face decisive objections.399

Sunstein discusses two problems with a test based solely on harm. First, the

burden of justification imposed on government in showing the requisite level of

harm would have to be lowered "so as to allow for regulation of false commercial
speech, private libel, unlicensed medical and legal advice, and so forth."

400
Value

would not matter, Sunstein argues, as the only question would concern the
government's justification "which would have to meet the same standard in all

many examples of line drawing in speech contexts and in other democracies suggest that the

American judiciary's heavy reliance on the difficulty in drawing lines to explain rulings in offensive

speech cases leaves a great deal to be desired." Id. at 1203.

396. Id. at 1200-01; see also Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).

397. I do not foreclose the possibility that one could construct an analysis in which anger

resulting from being subjected to racial epithets, particularly those delivered in a face-to-face and

confrontational manner, would be equivalent to "harm" as that notion is discussed herein.

398. In considering the following discussion of the problem with a sole focus on harm, keep

in mind Professor Sunstein' s view that the "existence of a two-tier First Amendment is hard to

deny; and the tiers are defined by reference to value, not simply by reference to harm." SUNSTEIN,

supra note 4, at 125.

399. Id. at 127.

400. Id.



320 INDIANA LAW REVIEW [Vol. 29:257

cases."
401

But if the harms-based approach would lower the government's burden
for the purpose of permitting regulation of false commercial speech, private libel

and the like, "there would seem to be an unacceptably high threat of censorship
of many other forms of speech, including political expression. A system in which
political speech receives the same relatively low level of protection now given to
commercial speech would produce serious risks to democratic self-governance."402

Second, Sunstein continues, an exclusive focus on harm could raise the
government's burden ofjustification. Stringent standards applied to governmental

efforts to regulate political speech would also be applied to governmental attempts

to regulate false commercial speech, child pornography, and unlicensed medical

practice. "The same very high burden would be placed on all government efforts
to regulate speech. This approach would have the large advantage of removing
possible risks to political speech. But it would also ensure that government

controls could not be applied to speech that in all probability should be

regulable."
403

In other words, an across-the-board application of the most stringent

standards to governmental speech controls would ensure that government

could not regulate (among other things) criminal solicitation, child
pornography, private libel, and false or misleading commercial speech.

The harms that justify such regulation are of course real. But if we are
honest, we will have to conclude that those harms are insufficient to
permit government controls under the extremely high standards applied

to regulation of political speech.
404

In addition, regulation of attempted bribes, criminal solicitations, and conspiracy

would only be permissible

when these forms of speech threaten clear and immediate harm. Many
attempted bribes, solicitations, and conspiracies are doomed to failure
from the start; they do not cause harm in the world. If they are to be
treated as core speech for constitutional purposes, they cannot be

401. Id.

402. Id. According to Sunstein:

Such a system might well, for example, allow government to regulate political

speech when it is misleading or false. This approach would provide far too little

breathing space for important speech. Misleading and even false political speech is part

and parcel of vigorous political debate. So too, severe risks would be produced by a

system in which libel of government officials received no more protection than libel of

ordinary citizens. Such a system would deter criticism of government, and criticism of

government is indispensable to democracy. But a framework looking only at harm

would put libel of government officials on the same ground as libel of private citizens,

and if the current, relatively lenient standards for private libel are to be applied

generally, we would endanger democratic processes.

Id. at 127-28 (footnotes omitted).

403. Id. at 128.

404. Id.



995] HATE-SPEECH HARMS 321

regulated when the harm is not likely to occur 405

Thus, under Professor Sunstein's view, sole reliance on harm would either

lower or raise the standards of regulatory justifications imposed on government.

Sunstein correctly concludes that an "inquiry into harm alone would do violence

to many of our considered judgments about particular free speech cases. . . . [A]
system that does violence to those judgements is not likely to deserve support."

406

Other concerns relative to a harms-based approach arise when the focus turns
to who will decide regulatory issues and how those issues will be decided. A
particular administrator's or judge's understanding of the meaning and seriousness

or lack of seriousness of harms caused by insult, affront to dignity, harassment,

intentional infliction of emotional distress, and similar harms arising from and

related to hate speech will certainly affect and predetermine the outcome of

cases.
407

"The judge's experience with insult and invective, with black people,

with historical episodes such as the Hollywood blacklist, and so on, will all play

a role in that understanding."
408

If a judge or decisionmaker does not see or assess

the harm of certain hate speech as "serious," the need for regulation will not be
apparent and the asserted constitutional right of a hate speaker to engage in the

speech will be protected.

C. Should A Harms-Based Approach Be Adopted?

Answering the normative question whether a harms-based approach to the

regulation of hate speech should be adopted must take into account the objections

to such an approach, the current state of First Amendment law (what Professor
Elena Kagan calls the "'ought' in the 'is' of First Amendment doctrine"),409 and
the fact that the judiciary has not been persuaded by claims that the emotional

harm inflicted by offensive language is intolerable and compensable.
410

Regulation on the basis of harm is attractive if seen as viewpoint neutral in the

sense that speech is regulated on the basis of the harm caused by the speech rather

than the viewpoint espoused by the speech.
411

The hard question of whether a
harms-based regulation is truly viewpoint neutral must be addressed. If all or

some viewpoint-based regulations can be viewed as harm-based regulations then

the distinction between the two types of regulations cannot be observed.
412

"For

405. Id.

406. Id. at 129.

407. Delgado & Stefancic, Essay I, supra note 6, at 858 n.36.
408. Id.

409. Kagan, supra note 83, at 877.

410. Goldberger, supra note 369, at 1 190. "There is no official recognition of either the

immediate harm done by [hate] speech or the direct connection between such speech and violence

against Blacks, Jews, women or homosexuals, to name others who are the object of hate speech and

bias crimes." Post, supra note 289, at 242.

411. Kagan, supra note 83, at 878; Cass R. Sunstein, Pornography and the First Amendment,

1986 Duke L.J. 589, 612.

412. See Kagan, supra note 83, at 880. "The substitution of labels— 'harm-based' for



322 INDIANA LAW REVIEW [Vol. 29:257

it is difficult to see why anyone would opt to regulate a viewpoint that did not
cause what seemed (to the regulators at least) to be a harm~or at a bare minimum,
that could not reasonably be described as harmful."

413

Consider other issues relative to a claim that a particular expression made in
a particular context has harmed a listener. If, as a matter of law, the expression
constitutes fighting words, the target of the fighting words will be able to argue for

proscription of the speech on the basis that fighting words are a recognized

exception to First Amendment protection.414 But let us complicate matters.
Suppose that a speaker makes the following statement (and consider the content,
context, and mode of delivery of the expression).415 A speaker, in a face-to-face
confrontation, directs the pejorative and epithets, "get lost nigger, kike, queer,

etc.," at a listener; the expression, arguably a mere profane grunt rather than an

idea or opinion, is designed to intimidate rather than rationally communicate an

idea. If the grunt is based on factually false premises about a minority group or

minority group member and seeks to create fear and to intimidate the listener and
target of the expression, can it not be plausibly argued that such expression can be

regulated without violating the free speech guarantee? Does not the harm or
potential of harm resulting from the content, context, and mode of delivery of the
pejoratives and epithets provide a basis for constitutional regulation?

416

Now change the scenario and suppose that, instead of saying "kike," the
speaker says to the listener, "you are a Jew." Also suppose that from the speaker's

reading of the Bible Jews are responsible for the death of Christ; that Jews are

greedy; that Jews are inherently purveyors of the worst excesses of the capitalist

system; that Zionism is racism; that Jews are depraved elements in the body

politic; and that Jews should leave all schools and should leave the United

States.
417 The statement is

calm, deliberative, and nasty. It is intellectual (in the sense of reference

to the learned sources) and false in its assertions. It threatens Jews and

expresse[s] anger and fear. Do we permit this kind of anti-semitic
statement because it is expressed and clothed in the garments of rational

thought, but ban the "Jew is kike" epithet? If we do, it appears that we
are expressing a kind of elitist theory of permissible racist speech. Street

vernacular won't cut it, but racism of the academy will.
418

'viewpoint-based' --thus either allows most viewpoint regulation to go forward or leaves yet

unanswered the central issue of precisely when such regulation is appropriate." Id.

413. Id.

4 1 4. See supra notes 99- 1 05 and accompanying text.

415. See supra notes 308- 1 2 and accompanying text.

416. See Wolfson, supra note 304, at 16. "Like an obscene telephone call, a racial epithet

is not plausibly taken as part of social deliberation on racial issues, and the harms that it produces

go well beyond offense." SUNSTEIN, supra note 4, at 187.

417. See Wolfson, supra note 304, at 16-17.

418. Id. at 17. Professor Henry Louis Gates, Jr. has offered a similar example involving the

following two statements made to a black freshman at Stanford University.



1995] HATE-SPEECH HARMS 323

It could be argued that the tone and content of the statement has political content

and should not be regulated,
419

and that a line can and should be drawn which
would distinguish speech discussing cultural differences, prejudices, biases, and

ignorance from speech that is intended to and does threaten individuals because

of their membership in a disfavored group.
420

The point being made is that if First
Amendment protection or non-protection will turn on a court's assessment of the
harm, insult, and injury to the listener, courts must be aware of the possibility that

bland, mediocre, and non-confrontational means are used to communicate the

same harmful, threatening, and derogatory thoughts and views communicated by

epithets.
421

Thus, a harms-based approach will thrust judges into issues of content

and style and will require the courts to "weigh the proportion of emotion and

derision to the percentage of pure reason."
422

Add to the pertinent backdrop the Supreme Court's R.A.V. decision,423

wherein the Court held that governments could not selectively target for regulation

and prohibition those fighting words that contained bias-motivated hatred or

expressions. R.A.V. "indicates that, in general, it's also none of the government's

business whether the individual's action conveys a message of racial hatred, or

instead conveys a different message or no message at all."
424

Given R.A. V. and the

real concern that harms-based regulations and viewpoint-based regulations could

collapse into and be indistinguishable from each other for the purposes of

Levon, if you find yourself struggling in your classes here, you should realize it isn't

your fault. It's simply that you're the beneficiary of a disruptive policy of affirmative

action that places underqualified, underprepared and often undertalented black students

in demanding educational environments like this one. The policy's egalitarian aims may

be well-intentioned, but given the fact that aptitude tests place African-Americans

almost a full standard deviation below the mean, even controlling for socioeconomic

disparities, they are also profoundly misguided. The truth is, you don't belong here, and

your college experience will be a long downhill slide.

Out of my face, jungle bunny.

Gates, supra note 1, at 45. For Gates, there is no doubt which statement is likely to be more

"wounding" and alienating to African-Americans. "Under the Stanford speech regulations,

however, the first is protected speech, and the second may well not be: a result that makes a

mockery of the words-that-wound rationale." As noted by Delgado and Yun, the "jungle bunny"

statement is a more serious example of hate speech because it is not open to argument or a more-

speech response, and the statement has "overtones of a direct physical threat." Delgado & Yun,
supra note 17, at 1820. "The other version, while deplorable, is unlikely to be coupled with a

physical threat, and is answerable by more speech." Id. See also infra note 468.

419. SUNSTEIN , supra note 4, at 163.

420. See Barnes, supra note 15, at 988.

42 1

.

Wolfson, supra note 304, at 2 1

.

422. Id.

423. See supra notes 182-216 and accompanying text.

424. Tribe, supra note 218, at 13.



324 INDIANA LAW REVIEW [Vol. 29:257

discerning the true nature of the regulation of speech, one could conclude, as I do,

that a broad harms-based approach to hate speech regulation would be
unconstitutional because it would suck large amounts of protected expression from
the coverage of the First Amendment.425

A narrower and weaker version of the harms-based approach, one which is
limited to the regulation of face-to-face, confrontational, and/or harassing

expressions and epithets of all kinds (and not just those limited to a selective group

of epithets) could pass constitutional muster.
426

Under the narrower version,
government could enact laws prohibiting specifically defined types of harassment,

threats, intimidation, and epithets which include, but would not be limited to, race,

sex, or other status. Thus, if the ordinance at issue in R.A.V. had proscribed all

fighting words and not just fighting words based on selective categories, the

ordinance would have been constitutional.
427

Accordingly,

a carefully drafted statute might well surmount these hurdles, and such

a law surely would not be subject to the selectivity analysis of RA. V.
Viewpoint-neutral laws of this kind-whether framed in terms of fighting

words or in some other manner—might be especially appropriate in
communities (such as, perhaps, educational institutions) whose very
purposes require the maintenance of a modicum of decency.428

In sum, a harms-based regulatory approach limited to instances in which a

speaker violates a narrowly defined ordinance or regulation prohibiting fighting

words or harassment
429

could be constitutional. Courts should uphold such narrow

and content-based restrictions on hate speech if the particular speech at issue is not

reasonably taken to be part of an exchange of ideas
430

and constitutes unlawful

fighting words or harassment by vilification within defined and limited contexts.

I will return to this subject in the following Part.

V. Campus Regulation of Hate Speech

"[S]tate colleges and universities are not enclaves immune from the sweep of
the First Amendment. 'It can hardly be argued that either students or teachers
shed their constitutional rights to freedom of speech or expression at the

schoolhouse gate.'"
431 As stated in Tinker v. Des Moines Independent School

425. "If restrictions on hate speech cover not merely epithets but also speech that is part of

social deliberation, they appear overbroad and unconstitutional for that very reason." Words,

Conduct, Caste, supra note 69, at 813.

426. See infra notes 496-99 and accompanying text.

427. Kagan, supra note 83, at 889.

428. Id. at 889-90.

429. Sunstein, supra note 4, at 203.

430. Words, Conduct, Caste, supra note 69, at 797.

431

.

Healy v. James, 408 U.S. 169, 180 (1972) (quoting Tinker v. Des Moines Indep. Sch.

Dist., 393 U.S. 503, 506(1969)).



1995] HATE-SPEECH HARMS 325

District?
7,2

the First Amendment must always be applied "in light of the special
characteristics of the . . . environment" in a particular case.

433
In the context of

colleges and universities, the Supreme Court has noted that the "college classroom

with its surrounding environs is peculiarly the 'marketplace of ideas,' and we
break no new constitutional ground in reaffirming this Nation's dedication to
safeguarding academic freedom."

434
That the First Amendment applies to state

colleges and universities does not mean that those colleges and universities cannot
constitutionally regulate speech and expression. State college and university

action is state action for the purposes of the First Amendment, and free and
protected speech concerns can be implicated whenever those institutions make
speech-related decisions.

435

Universities necessarily regulate some speech; as Professor Stanley Fish has
written, if universities "were only places to encourage free expression ... it would

be hard to say why there would be any need for classes, or examinations, or
departments, or disciplines or libraries, since freedom of expression requires

nothing but a soapbox or an open telephone line."
436

In some circumstances, Fish

states, the obvious good of free expression may pose a threat to the university's
purpose of investigating and studying matters of fact and interpretation and, at that

point, it may be necessary for the university to discipline or regulate speech.437

Furthermore, universities value speech on the basis of quality, content, and

viewpoint, and define what constitutes and counts

as knowledge, as important, relevant to the world and to the human
condition. Inevitably, such assessments regulate speech in terms of

content, viewpoint, and even ideology. Indeed, that is the whole point:

to promote quality speech as quality is understood within the relevant

academic community or by the relevant administrator (or both).
438

Universities can also go too far in regulating or responding to the speech of

432. 393 U.S. 503(1969).

433. Id. at 506.

434. Healy, 408 U.S. at 180-81. See also id. at 201-02 (Rehnquist, J., concurring in the

result) (stating that the "constitutional limitations on the government's acting as administrator of

a college differ from the limitations on the government's acting as sovereign to enforce its criminal

laws," and that a college may expect that its students adhere to generally accepted standards of

conduct).

For analysis of the First Amendment and "academic freedom," see University of

Pennsylvania v. EEOC, 493 U.S. 182 (1990); J. Peter Byrne, Academic Freedom: A Special

Concern of the First Amendment, 99 YALE L.J. 251 (1989).

435. Becker, supra note 36, at 1030.

436. STANLEY FISH, There's No Such Thing As Free Speech and It's a Good Thing, Too, in

Debating PC. The Controversy over Political Correctness on College Campuses 237
(Paul Berman ed. 1992).

437. Id. at 238.

438. Becker, supra note 36, at 1033.



326 INDIANA LAW REVIEW [Vol. 29:257

its faculty members,
439

as illustrated by Jeffries v. Harleston
4
.

40
In Jeffries, the

chairman of the Black Studies Department at the City College of New York sued
university officials alleging that they had violated the First Amendment by
removing him from the chair because of the content of a speech he had given.441

The college was concerned that Jeffries' speech threatened recruitment, fund
raising, and the college's relationship with the community.

442
At trial, the jury

concluded, inter alia, that Jeffries had proven that his speech was a substantial or
motivating factor in removing him from the chair of the department.443 The district
court ordered Jeffries reinstated as department chairman.

444

On appeal, the United States Court of Appeals for the Second Circuit noted
that protection against government retaliation for speech extends to the
government's own employees although the government's need for efficient
functioning is a factor; accordingly, when a government employee expresses an
opinion on a matter of social or political concern, even where the statement is

critical of the government that employs the worker, the government cannot

sanction the speech unless the speech impairs the efficiency of government

operations.
445

Jeffries' speech unquestionably involved public issues, the court

stated, in that the speech criticized the public school curriculum for reflecting

racial bias against minorities and discussed the history of black oppression.
446

These issues are suffused with social and political hues. True, the tenor

of Jeffries' speech was less than ingratiating, and, as evidenced by the

ensuing uproar, its content affronted many who heard it or, at least, heard
about it. But First Amendment protection does not hinge on the
palatability of the presentation; it extends to all speech on public matters,

no matter how vulgar or misguided.447

The Second Circuit further concluded that the evidence supported the jury's
finding that the college was motivated by the content of Jeffries' speech when it
removed Jeffries from the chair of the Black Studies Department, and agreed with

the district court that the jury could reasonably have concluded that the college

439. See, e.g., Silva v. University of New Hampshire, 888 F. Supp. 293 (D.N.H. 1994).
440. 21 F.3d 1238 (2d Cir. 1994), vacated and remanded, 1 15 S. Ct. 502 (1994).

441. In a speech discussing the public school curriculum, Jeffries stated, inter alia, that a

specific official was "an ultimate, supreme, sophisticated, debonair racist" and a "sophisticated,

Texas Jew." Id. at 1242. Jeffries also stated that "rich Jews" financed the slave trade, and that Jews

and Mafia figures in Hollywood had conspired to "put together a system of destruction of black

people" by portraying blacks negatively in films. Id.

442. Id.

443. Id. at 1243.

444. See Jeffries v. Harleston, 828 F. Supp. 1066 (S.D.N.Y. 1993).

445. See Rankin v. McPherson, 483 U.S. 378 (1987); Connick v. Myers, 461 U.S. 138

(1983); Pickering v. Board of Educ, 391 U.S. 563 (1968).

446. Jeffries, 2 1 F. 3d at 1 245

.

447. Id. at 1245-46 (citation omitted).



1995] HATE-SPEECH HARMS 327

would not have removed Jeffries but for the speech.
448

The college also failed to
show that Jeffries' speech interfered with the college's operations. The college
had argued that it need only demonstrate a reasonable expectation that Jeffries'

speech would eventually cause disruption because Jeffries held a highly visible

policymaking position. Although agreeing that government generally has more

discretion to sanction employees who serve in confidential, policymaking, or
public contact roles, the court concluded that the college had not shown that
Jeffries, by virtue of his position as department chair, could undermine the

institution's mission with his speech.
449

The applicable institutional by-laws
charged the department chairman with carrying out the policies of the department,

faculty, and the board of trustees, but did not vest him with the power to make
policy. As department chairman, Jeffries performed an essentially ministerial
role.

450
Accordingly, the Second Circuit affirmed the finding that the college had

violated Jeffries' First Amendment rights, and also affirmed the district court's
reinstatement order.

451
Thus, the college's move against Jeffries, predicated on

stated but unproven concerns of harm to the institution,
452

was initially held to be
an unconstitutional infringement of Jeffries' right to free speech before subsequent

developments led to a different result.
453

448. Id. at 1246.

449. Id. at 1247.

450. Id.

451. Id. at 1248-49. The Second Circuit vacated the punitive damages awards against six

individual defendants and remanded for a new trial on the question whether Jeffries should recover

punitive damages from those defendants. Id. at 1249-50.

452. See supra note 449 and accompanying text.

453. Thereafter, and in the wake of Waters v. Churchill, 1 14 S. Ct. 1878 (1994), the Second

Circuit held that university officials did not violate Jeffries' First Amendment rights because they

were motivated by reasonable predictions of disruption in university operations. See Jeffries v.

Harleston, 53 F.3d 9 (2d Cir.), cert, denied, 1 16 S. Ct. 173 (1995). For commentary on the Jeffries

litigation, see Nathan Glazer, Levin, Jeffries, and the Fate ofAcademic Autonomy , 36 Wm. & MARY
L. Rev. 703(1995).

In the cited article, Professor Glazer also discusses the case of Professor Michael Levin against

the City College of New York. Levin v. Harleston, 770 F. Supp. 895 (S.D.N.Y. 1991), affd in part
and vacated in part, 966 F.2d 85 (2d Cir. 1992). In a letter to the New York Times, a book review,

and another letter published in the Proceedings and Addresses of the American Philosophical

Association, Professor Levin set out his views on affirmative action and the relative intelligence of

blacks and whites. Among other things, Levin criticized the Times for supporting affirmative

action; stated that the only adjustments in educational measures that will allow blacks their due

number of successes amount to making course work and tests easier and easier, and that the

American polity will have to reconcile itself to an embarrassing failure rate for blacks; and that the

reason for the low representation of blacks in the field of philosophy was their lower level of

intelligence on average. See Glazer, supra, at 71 1.

The university scheduled another section of Professor Levin's required course for

undergraduates in philosophy, and explained in a letter to students that the extra section was added

because Professor Levin had "expressed controversial views." Levin, 770 F. Supp. at 907. An ad



328 INDIANA LAW REVIEW [Vol. 29:257

University decisions on faculty hiring and promotion also regulate speech.

This is the most important and effective way in which an academic
institution regulates speech. Much academic speech, particularly in
classrooms, student papers, and exams, depends on who is hired. Speech
at a law school without any critical race theorists will be different from

speech at a law school with several. And hiring and tenure decisions are
based on assessments of the quality and content of the applicant's

speech, the quality of the applicant's arguments, research, methodology,

and, inevitably (especially at the margins of academic discourse within

any discipline), viewpoints.
454

Universities do not offer all possible courses and do not permit a school

curriculum devoted to flat earth science.
455

Universities select course offerings on

the basis of the content to which students will be exposed, and may not offer
courses of particular interest to some students, particularly some people of color
and women.

456
Further, there are rules, both written and unwritten, that govern the

permissible and expected types of discussion in classrooms. "Such understandings

are not made blindly; viewpoint and ideology are inevitably relevant."457 Student
papers and examinations are graded on the basis of the contents thereof and on the

professor's evaluation of the student's knowledge and the quality of her reasoning.

If the paper or examination "has been based on a viewpoint or ideology the

professor considered stupid, irrelevant, irrational, superstitious, or evil, the

importance of viewpoint and ideology to evaluating content would be obvious."
458

Commencing in 1979, many college campuses noticed a significant increase
in the number of hate speech incidents directed at blacks, people of color, gays,
lesbians, and others. Since the 1986-1987 academic year, the Chronicle ofHigher

Education reports that approximately 175 colleges and universities experienced

hoc committee reviewed the matter and concluded that Levin's statements regarding the intellectual

inferiority of blacks "does, in our view, clearly have the potential to harm the process of education

in his classes. . . . Thus we find that it is appropriate for the College to continue to carefully

implement ways to protect the students from such harm." Id. at 914.

The trial court found that there had been a chilling effect on Professor Levin's exercise of his

right to free speech, and permanently enjoined the university from commencing or threatening to

commence any disciplinary proceedings against, or other investigations of Levin, predicated solely

upon his expression of ideas, and from creating or maintaining shadow or parallel sections of his

classes. In addition, the college was ordered to take reasonable steps to prevent disruptions of

Professor Levin's classes. Id. at 927.

454. Becker, supra note 36, at 1034.

455. Wolfson, supra note 304, at 5.

456. Becker, supra note 36, at 1034.

457. Id. at 1035.

458. Id. "Imagine, for example, that you are grading an essay question on gradations of

punishment for various forms of rape. And imagine that the exam you are reading argues that rape

should be legal, indeed rewarded, because women enjoy rape; rape is therefore a good thing. You

should be affected by the exam's viewpoint, content, and ideology in assigning a grade to it." Id.



1995] HATE-SPEECH HARMS 329

serious racial unrest.
459

The National Institute Against Prejudice and Violence has
estimated that twenty to twenty-five percent of minority students are victimized at

least one time during their college years.
460

For example, in a 1987 incident at the

University of Michigan, students shoved a leaflet under the door of a room in
which black women were holding a meeting; the leaflet said that blacks "don't
belong in classrooms, they belong hanging from trees."

461
Moreover, a racial

brawl occurred at the University of Massachusetts following the television viewing

of a World Series game;
462

white students at Stanford University scrawled

stereotypically black facial features on a poster of Ludwig von Beethoven and
placed it outside the dorms of black students;

463
a fraternity member at the

University of California at Berkeley shouted obscenities and racial slurs at black

students as they passed a fraternity house;
464

and a Berkeley campus disc jockey

told black students to "go back to Oakland" when they requested that the station
play rap music.

465

There have been numerous press reports of white students engaging in the

verbal or symbolic insulting of black students and other people of color. Those

insults include shouted and spray-painted racial denigrations, caricatures of racial

facial features displayed on posters, the mimicry of blacks in white sorority parties

through make-up, and racial stereotypes exhibited in student newspapers and on

campus radio broadcasts.
466

Experienced observers of the nation's campuses believe this spate of

459. Delgado & Yun, supra note 302, at 872.
460. Id.

461. See Isabel Wilkerson, Campus Blacks Feel Racism's Nuances, N.Y. TIMES, Apr. 17,

1988, at Al; Racism, Cynicism, Musical Chairs, The ECONOMIST, June 25, 1988, at 30. Other

incidents occurred at that university, including the distribution of a flier naming the month of April

"White Pride Time" and featuring a counseling session on "how to deal with uppity niggers." See

Deborah R. Schwartz, Note, A First Amendment Justification for Regulating Racist Speech on

Campus, 40 Case W. Res. L. Rev. 733, 734 (1990). In response to these and other incidents, the

University of Michigan promulgated an antidiscrimination policy in 1988. See THE UNIVERSITY

of Michigan Policy on Discrimination and Discriminatory Harassment of Students in the

University Environment (1988); infra notes 469-79 and accompanying text (discussing court

challenge to the policy).

462. State Starting an investigation of Clash at Massachusetts U., N.Y. TIMES, Nov. 18,

1986, atB24.

463. Felicity Barringer, Campus Battle Pits Freedom ofSpeech Against Racial Slurs, N.Y.

Times, Apr. 25, 1989, at Al.

464. Diane Curtis, College Campuses Reinforce Rules Barring Racism, SAN FRANCISCO

Chron., Sept. 18, 1989, at Al, A8.

465. Id.

466. See Howard J. Ehrlich, Campus Ethnoviolence and the Policy Options 41-72

(1990); Byrne, supra note 3, at 401-02; Asians at University ofMinnesota Receive Racist Letter,

Chronicle of Higher Educ, May 2, 1 990, at A3; Racism Flares on Campus, Time, Dec. 8, 1 980,

at 28.



330 INDIANA LAW REVIEW [Vol. 29:257

abuse to be unprecedented in frequency and intensity. In the lifetime of

current educators, universities have been more welcoming to racial
diversity than has society as a whole; this racist backlash mocks our hope
that education will temper racial animosity.

467

In response to these serious incidents, many colleges and universities have
enacted hate speech codes and regulations of one sort or another.

468
Generally,

467. Byrne, supra note 3, at 401-02. For an account of other incidents, see Schwartz, supra

note 461, at 734-37.

468. One example of a hate speech code is the Stanford University code created by Stanford

law Professor Thomas Grey. The core of that policy stated:

Speech or other expression constitutes harassment by personal vilification if it:

a) is intended to insult or stigmatize an individual or a small number of individuals on

the basis of their sex, race, color, handicap, religion, sexual orientation, or national or

ethnic origin; and

b) is addressed directly to the individual or individuals whom it insults or stigmatizes;
and

c) makes use of insulting or "fighting" words or non-verbal symbols.

In the context of discriminatory harassment, insulting or "fighting" words or non-verbal

symbols are those "which by their very utterance inflict injury or tend to incite an

immediate breach of the peace," and which are commonly understood to convey direct

and visceral hatred or contempt for human beings on the basis of their sex, race, color,

handicap, religion, sexual orientation, or national and ethnic origin.

The Stanford Discriminatory Harassment Provision, quoted in Thomas C. Grey, Civil Rights vs.

Civil Liberties: The Case ofDiscriminatory Verbal Harassment, 8 SOC. PHIL. & POLICY 81,1 06-07
(1991); Racist Speech on Campus, supra note 3, at 450-51 (quoting policy).

Stanford, a private university, at one time indicated that it would attempt to comply with

the First Amendment in regulating hate speech. Sunstein, supra note 4, at 203; Grey, supra note

286; Frank Michelman, Universities, Racist Speech and Democracy in America: An Essayfor the

ACLU, 27 Harv. C.R.-C.L. L. Rev. 339 (1992). It is noteworthy that the policy was asymmetrical

in that whites could not direct "verbal assault weapons" against blacks, other people of color, or

women, while those protected by the speech code could use all the words at their disposal against

whites. Grey, supra note 286, at 1 62. Professor Charles Fried has argued that such "asymmetry

would seem to be a defect—an injury not only to traditional free speech principles of content- and

viewpoint-neutrality, but also to the value of civility." Charles Fried, The New First Amendment

Jurisprudence: A Threat to Liberty, in THE BILL OF RIGHTS IN THE MODERN STATE 247 (Geoffrey
R. Stone et al. eds., 1992).

On February 28, 1995, a Santa Clara, California Superior Court judge held that Stanford's hate

speech policy was unconstitutional under a California law extending to students at private

institutions of higher learning the same civil rights enjoyed by students at public universities.

Stanford decided not to appeal the Superior Court's ruling. See Bill Workman, Stanford Won't



1 995] HATE-SPEECH HARMS 33

1

hate speech codes prohibit hateful or harassing speech intended to insult or to

stigmatize individuals on the basis of their racial, sexual, ethnic, or other status.
469

One study, conducted under the auspices of the Freedom Forum's First
Amendment Center, inventoried speech proscriptions in 384 campus handbooks
and student guides.

470
Twenty-eight percent of the surveyed institutions had

advocacy rules, such as rules prohibiting "any behavior that implicitly or explicitly

carries messages of racism, sexism, stereotyping, or discrimination of any kind."
471

Other institutions had general harassment codes which included verbal harassment

and made harassment on the basis of particular group status punishable. For
example, the University of Southern Maine proscribes "harassment or intimidation
of another person."

472
It also prohibits "harassment or discrimination based on

race, color, religion, sex, sexual orientation, national origin, or citizenship status,

age, disability, or veteran's status."
473

Only eight percent of surveyed institutions

prohibited fighting words as defined in the Supreme Court's Chaplinsky
decision.

474 And fourteen percent of institutions prohibited the intentional
infliction of emotional distress.

475

University hate speech regulations have not fared well when reviewed by the
courts. In Doe v. Michigan™ the court held that the University of Michigan's
1988 policy

477
was unconstitutionally vague and overbroad. Those who drafted

the policy had in mind court decisions holding that verbal harassment by
coworkers of minorities or women could violate Title VII of the Civil Rights Act
of 1964 ("Title VII").

478
In the court's view, the university apparently had no

Appeal Ruling on Anti-Hate Speech Rule, S.F. CHRON., Mar. 10, 1995, at Al 1; Lynn Ludlow,

Conservatives andfree speech, S.F. EXAMINER, Mar. 5, 1995, at A- 12.

469. See Turner, supra note 3, at 225.

470. See generally Arati R. Korwar, Speech Regulations at Public Colleges and Universities,

ACADEME, Jan. -Feb. 1994. The study omitted separate statements of equal opportunity,
affirmative action, and nondiscrimination, as well as sexual harassment policies.

471. Id.

All. Id.

473. Id. at 9- 10 (footnote omitted).

474. Id. at 10.

475. ML at 11.

476. 721 F. Supp. 852 (E.D. Mich. 1989).

477. The policy prohibited "behavior, verbal or physical, that stigmatizes or victimizes an

individual on the basis of race, ethnicity, religion, sex, sexual orientation, creed, national origin,

ancestry, age, martial status, handicap or Vietnam-era veteran status" and poses a threat or interferes

with an individual's university endeavors. Id. at 856. An example of a statement violative of the
policy was set forth in an interpretive guide provided by the university's office of affirmative action:

"A male student makes remarks in class like 'Women just aren't as good in this field as men.'" Id.

at 858.

478. 42 U.S.C. §§ 2000e-2000el7 (1988). See generally Harris v. Forklift Systems, Inc, 1 14

S. Ct. 367 (1993); Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986); Marcy Strauss, Sexist

Speech in the Workplace, 25 HARV. C.R.-C.L. L. Rev. 1 (1990); Ronald Turner, Employer Liability

Under Title VIIfor Hostile Environment Sexual Harassment By Supervisory Personnel: The Impact



332 INDIANA LAW REVIEW [Vol. 29:257

coherent view of the nature or limits of the policy or the university's authority to

regulate racist speech, and the policy failed to distinguish unprotected from

protected speech. Thus, the court stated, "the University had no idea what the
limits of the Policy were and it was essentially making up the rules as it went
along."

479

In 1989, the University of Wisconsin adopted a policy under which students

would be disciplined if they intentionally demeaned a specific individual on the
basis of his or her race or other specified grounds and thereby damaged the
educational environment.

480
In requiring that insults be directed at a specific

individual, the drafters of the policy thought that it was necessary to limit the

regulation and disciplinary action to fighting words
481

so as to protect the

constitutionality of the policy.
482 The policy was challenged in a court action,483

and the court held that the policy was overbroad and did not meet the requirements

of the fighting-words doctrine.

As to the fighting-words doctrine, the court determined that the policy went
beyond the present scope of that doctrine in that the policy did not require that the

regulated expression, by its very utterance, would tend to incite a violent

reaction.
484

Further, the court held that the policy's prohibition of speech which

created an intimidating, hostile, or demeaning environment was too broad because

the term "hostile" covered nonviolent as well as violent situations, and an

intimidating or demeaning environment was not likely to incite a violent

reaction.
485

"Since the UW Rule covers a substantial number of situations where
no breach of the peace is likely to result, the rule fails to meet the requirements of

and Aftermath o/Meritor Savings Bank, 33 How. L. J. 1 (1990).

479. Doe, 721 F. Supp. at 868.

480. The Wisconsin rule prohibited:

[R]acist or discriminatory comments, epithets or other expressive behavior directed at

an individual or on separate occasions at different individuals, or for physical conduct,

if such comments, epithets, or other expressive behavior or physically conduct

intentionally:

1. Demean the race, sex, religion, color, creed, disability, sexual orientation, national

origin, ancestry or age of the individual or individuals; and

2. Create an intimidating, hostile or demeaning environment for education, university

related work, or other university-authorized activity.

Wise. Admin. Code UWS § 17.06(2) (Aug. 1988).
48 1

.

See supra notes 99- 1 05 and accompanying text.

482. See Byrne, supra note 3, at 413-14; see also Patricia B. Hodulik, Prohibiting

Discriminatory Harassment by Regulating Student Speech: A Balancing of First-Amendment and

University Interests, 16 J.C. & U. L. 573, 587 (1990) (staff lawyer at the University of Wisconsin
discusses the concerns considered in the drafting of the policy).

483. UWM Post, Inc. v. Board of Regents, 774 F. Supp. 1 163 (E.D. Wis. 1991).
484. Id. at 1172.

485. Id. at 1172-73.



1995] HATE-SPEECH HARMS 333

the fighting words doctrine."
486 As to the policy's anti-harassment provision, the

court distinguished Title VII from the university's policy. Title VII addresses

employment, and not educational settings; Title VII' s hostile environment analysis

would not apply because the agency analysis applicable to Title VII cases would

not hold a school liable for its students' actions (the students are not agents of the

school); and Title VII cannot supersede the First Amendment.
487

lota Xi Chapter of Sigma Chi Fraternity v. George Mason University
4**

involved a fraternity's action for declaratory judgment and an injunction seeking

to nullify sanctions imposed upon it by the university because the fraternity

conducted an "ugly woman contest" with racist and sexist overtones. During the
contest, one member of the fraternity, who happened to be white, dressed as an
offensive caricature of a black woman and spoke in slang to parody African-
Americans. The fraternity later apologized to the university for the presentation
and conceded that the contest was sophomoric and offensive. The dean of
students suspended the fraternity from all activities for the rest of the semester,

imposed a two-year prohibition on all social activities (with certain exceptions),

and required the fraternity to plan and implement an educational program

addressing cultural differences, diversity, and the concerns of women.489 The
fraternity brought suit challenging the university's actions.

The United States Court of Appeals for the Fourth Circuit concluded that it
was obvious that the contest was "an exercise of teenage campus excess" and
reflected a "sophomoric nature."

490
But the fraternity's low-grade entertainment

did not necessarily weigh in the First Amendment's inquiry, the court stated, and
it would seem that the contest was inherently expressive and thus entitled to First

Amendment protection.491 The university argued that the message conveyed by
the fraternity's conduct—that racial and sexual themes should be treated
lightly—was antithetical to the university's mission of promoting diversity and
providing an educational environment free from racism and sexism.

According to the court, the evidence established "that the punishment was
meted out to the Fraternity because its boorish message had interfered with the

described University mission. It is manifest from these circumstances that the

University officials thought the Fraternity intended to convey a message."
492

Further, the court determined that the university's action was unconstitutional
under R.A.V. v. City of St. Paul.

493 The university punished "those who scoffed
at its goals of racial integration and gender neutrality, while permitting, even

encouraging, conduct that would further the viewpoint expressed in the

486. Id. at 1173.

487. Id. at 1177.

488. 993 F.2d 386 (4th Cir. 1993).

489. Id. at 388.

490. Id. at 389.

491. Id. at 391.

492. Id. at 392 (emphasis in original).

493. 505 U.S. 377 (1992).



334 INDIANA LAW REVIEW [Vol. 29:257

University's goals and probably embraced by a majority of society as well."
494

The
First Amendment, however, generally prevents government from proscribing
expressive conduct because of disapproval of the ideas expressed.

495
Concluding

that the university had selectively limited speech and could have accomplished its

goals in a fashion other than silencing speech on the basis of viewpoint, the court

affirmed the district court's summary judgment in favor of the fraternity.
As can be seen, questions of overbreadth, vagueness, and unconstitutional

selectivity must be addressed by those institutions with or considering hate speech

codes. Although R.A. V. did not specifically address hate speech codes and did not

provide a complete picture of the regulatory options that might pass constitutional

muster,
496

the Court's rationale and analysis suggest that a hate speech code that

does not apply in a "neutral" and across-the-board fashion could be

unconstitutional.
497

Thus, codes could prohibit defined harassment, threats, or

intimidation including but not limited to race, sex, sexual orientation, and so

forth,
498

but codes that singled out particular types of hate speech while leaving

other forms untouched would not be "neutral" under R.A. V. and would therefore

be unconstitutional.
499

Furthermore, a code would apparently pass First Amendment muster if it was
restricted to prohibitions of harsh and confrontational face-to-face epithets and

invective calculated to disrupt the targeted person's ability to function on campus

and enjoy the same opportunities and benefits that are available to all students.
500

Recall that in R.A.V. the Court noted that the city could have achieved "precisely

the same beneficial effect" through an "ordinance not limited to the favored topics

. . .
."501 Hence, an ordinance prohibiting all fighting words would have been

constitutional; an ordinance prohibiting fighting words based on race, sex, or some

other specific category was unconstitutional. Broader hate speech codes (not

limited to specific categories or topics) do carry a practical risk, however. The

broader the code, the more extensive its regulatory reach and the more vulnerable

the code is to charges of unconstitutional vagueness and overbreadth. Regulating

broad categories of fighting words, harassment, intimidation and the like have

indefinite parameters that are vulnerable to unconstitutional manipulation.
502

494. Iota Xi, 993 F.2d at 393.

495. Id. (citing R.A.V. , 505 U.S. at 382).

496. See Brownstein, supra note 63, at 209.

497. Delgado & Yun, supra note 302, at 886.
498. See Kagan, supra note 83, at 889.

499. Delgado & Yun, supra note 302, at 886.
500. Id.

501

.

R.A.V. v. City of St. Paul, 505 U.S. 377, 396 (1992).

502. Brownstein, supra note 63, at 208. See also Kagan, supra note 83, at 889-90:

A law prohibiting, in viewpoint-neutral terms, not merely fighting words but other kinds
of harassment and intimidation would (and should) face greater constitutional

difficulties, relating most notably to overbreadth and vagueness; but a carefully drafted

statute might well surmount these hurdles, and such a law surely would not be subject

to the selectivity analysis of R.A.V. Viewpoint-neutral laws of this kind-whether



1995] HATE-SPEECH HARMS 335

No student or member of a university community has the right to utter face-to-
face epithets or invective to another student or member of the university
community. The targeted student or member of the community has a right not to
have the face-to-face epithets and invective uttered to her, and a college or

university has the right and obligation to address and redress the harms to

educational environments caused by hate speech.
503

Speech codes drafted to

address and to prohibit such speech may be necessary to the specific context,
operation, and mission of academic communities. As noted above, universities
impose limits on the topics discussed in classrooms, impose subject matter

restrictions as part of the educational process, ban or discourage irrelevant

discussions, require students to treat other students and members of the academic
community with a minimum of civility and respect, make judgments on the quality
of communications that affect admissions and the evaluation of students and

prospective and actual faculty, and engage in viewpoint discrimination when
making academic judgments.

504
Universities and colleges may not censor as they

please, but as a practical matter those institutions, seeking to promote and protect

the educational mission, do and must control speech in ways that other non-

educational institutions do not and cannot.

Surely the educational mission ought to grant the university somewhat

greater room to maneuver, especially in light of the complexity and
delicacy of the relevant policy questions. Courts might also hesitate

before finding viewpoint discrimination or impermissible selectivity.

Perhaps there should be a presumption in favor of a university's

judgment that narrowly defined hate speech directed at blacks or women
produces harm that is especially threatening to the educational
enterprise.

505

framed in terms of fighting words or in some other manner—might be especially

appropriate in communities (such as, perhaps, educational institutions) whose very

purposes require the maintenance of a modicum of decency.

503. Post, Constitutional Domains, supra note 25 1 , at 296-97; Delgado & Yun, supra
note 302, at 891. Professor Post argues that the constitutionality of hate speech regulations on

university and college campuses depends upon the logic of instrumental rationality, and specifically

upon three factors: (1) the nature of the educational mission of the university; (2) the instrumental

connection of the regulation to the attainment of the mission; and (3) the deference that courts

should display toward the instrumental judgment of institutional authorities. "The current

controversy regarding the constitutionality of regulating racist speech on university and college

campuses may most helpfully be interpreted as a debate about the first of these factors, the

constitutionally permissible educational objectives of public institutions of higher learning." Post,

Constitutional Domains, supra note 251, at 324 (footnote omitted).

504. See supra notes 436-58 and accompanying text; Sunstein, supra note 4, at 199-200.

505. Sunstein, supra note 4, at 202.



336 INDIANA LAW REVIEW [Vol. 29:257

Conclusion

Some speech is constitutionally protected even though it harms other
individuals. Some speech is not constitutionally protected because it harms other
individuals. What explains the constitutional protection in the former but not the
latter? It is my view that a harms-based analysis is in fact a part of the explanation
of the protection and non-protection of certain speech, and that the valuation of the

type and extent of the harm explains, at least in part, why the regulation of some
speech (like child pornography) is deemed to be uncontroversial, while the
regulation of other speech (like certain hate speech) is controversial. The actual
and perceived harms of child pornography are such that society has rightly and

understandably moved to prohibit such speech.
If harm is a criterion, can it not be plausibly argued that certain hate speech

can and should be rightly and understandably condemned and prohibited without
violating the First Amendment? If one answers that question in the negative, is
it not because of a different valuation of both the speech itself and the actual and

perceived harms of the speech? I submit that the valuation of the at-issue speech

is a critical component of First Amendment analysis, even where such valuation
is not expressed or spelled out. This often silent but always present judgment as

to the level and degree of harm is found in the constitutional regulation of many
forms and varieties of speech.

506
This is not to say that all speech that can or does

cause harm can be constitutionally regulated; it is to say that those who contend
that hate speech cannot be regulated without violating the First Amendment
should be asked to explain why an assessment of the harm to the targets of such
speech should not be part of the constitutional calculus. In other words, if as a

general proposition, it is proper to assess harm in making determinations about the

constitutionality of certain speech, it should be proper to assess harm relative to
hate speech.

While it is true that courts may not be receptive to harms-based arguments,507

a consistent and principled approach to First Amendment questions requires a
discussion and evaluation of the harms of hate speech as well as recognition that

what is really at play in the regulation of hate speech and all other speech is an

exercise consisting of value judgments regarding the speech in question. One can
certainly debate plausible and contending perspectives on the question of harm in

a particular case involving the regulation of speech. My point is that truth-in-
labeling and an accurate description of what is actually done in this country with

regard to the regulation of speech should be recognized as we continue to debate
issues relative to and arising from the regulation of hate speech.

Regulation of hate speech may or may not be a "good" idea. But the
regulation of hate speech is not so far removed from other societal restrictions on

certain expressions. I am not urging a broad ban on hate speech, for such a ban
would violate the First Amendment in that it would prohibit a great amount of

506. See supra Part V.

507. See supra notes 335-408 and accompanying text.



1995] HATE-SPEECH HARMS 337

speech that contributes to public deliberation.
508

I do submit that those who argue
against even narrow hate speech regulations should at least consider an analysis

that accounts for the harm factor and any explicit or implied valuation of the at-
issue speech, and should not rely on a knee-jerk, conclusory, and "of course that's

unconstitutional" reaction to hate speech regulations and codes.

508. Cass R. Sunstein, The Partial Constitution 25 1 (1993).