Thinking About Hate Speech
by Leslie Bender

In Fall 2005 it came to light that Syracuse University's student-run HillTV broadcast a "comedy" program called "Over the Hill" that contained horrific "jokes" about such things as racial lynchings in the quad (with pictures), instructions on how to date rape, and incredibly vulgar and obscene representations of women, foreign-born students, people with disabilities and more. Chancellor Nancy Cantor took immediate affirmative steps to close down the station. She also initiated a reorganization to prevent this hate speech from ever again being broadcast on campus-sponsored TV. In response many members of the SU community began a campaign alleging that her actions were an abridgement of free speech and academic freedom.

Free Speech has Legally and Culturally Accepted Limits
Academic freedom and free expression do not mean that we must tolerate an academic environment where any means of the university are used to make members of our community feel unsafe or unwelcome based on hostility, harassment, threat or denigration directed to their membership in a racialized or gendered group. Hate speech is not about intellectual disagreement over ideas, even if one finds certain intellectual ideas hateful. Hate speech (1) is directed against groups of people based on membership in social groups that have suffered from status-based inequality and (2) enforces itself through violence, fear, stigma, and attempts to strip group members of dignity and respect. A "no tolerance" policy against hate speech promotes, rather than undermines, values of free expression, liberty, and equality.

The law already contains many limits on free speech and academic freedom (e.g., prohibitions against plagiarism, copyright and trademark violations, defamation, false reporting on income tax forms, misrepresentation, sexual harassment, forgery, identity theft, child pornography, fighting words, verbal assaults that lead to imminent breaches of peace, telephone stalking, perjury, etc.). We take for granted those limitations, and therefore do not see them as "free speech infringements." The same should be true of hate speech.

Free Speech is Only One of Our Most Important Values
While free speech is one of our basic values, our society has other values that are equally important: equality, justice, participatory democracy, inclusion, diversity, human dignity, respect, and peace. We have suffered a great deal as a nation for our failure to prioritize those values. It took a civil war and multiple civil rights struggles to teach us that liberty for some at the expense of liberty for others is not liberty for anyone. Liberty without equality is neither liberty nor justice, but oppression. Democracy, with claims of open participation and equality, but where some groups of peoples are stigmatized, excluded, silenced by fear or bullying, or chased away, is neither democracy nor justice, but oppression. No one individual or group can have absolute liberty in a society. We need to balance the values of equality and liberty, including liberties of free expression, in ways that maximize the experience of both for all people, but do not automatically privilege one value over the other.

A university campus is an ideal place for developing ways to do that successfully. All people should be able to go to school free of fear and violence. Women should not be subjected to a rape culture. People of color should not be subjected to a white supremacist culture that fills them with fear and stigmatizes them as inherently lesser. Fear, violence and group stigma seriously undermine a university's mission to share and build education.

The "More Speech" Argument
Free speech advocates on campus argue that the cure for hate speech is "more speech" or "counter-speech", rather than punishing the hate speech itself. If it were something that I saw work, I'd support it wholeheartedly as the appropriate solution. In my years at the university, I have never seen "more speech" adequately counter hate speech for at least two reasons. First, racism, sexism, and homophobia, etc., are deep-seated, insidious ideologies in our society. They have a long history and context. Each individual expression of hate of a stigmatized group reinforces deep cultural associations that influence our worldviews, whether we want them to or not. Racism is not just the thoughts or actions of evil people. It is a system of oppression manifested in hundreds of subtle and not-so-subtle ways, many of which are unconscious or subconscious. The "more speech" response treats racist hate speech as part of one person's evil intent or misinformed understanding while ignoring the historical and institutional context.

Eliminating racism requires changes to the dominant culture - a huge paradigm shift. Even if 'more speech' were to "convince" the speaker of the error of his or her ways, the ripples of harm and reinforced ideology that emanate from that speech act affect all members of the community and would not be cured. Only with structures of power unequivocally rejecting racist and sexist ideology, acting definitively against it, punishing its perpetrators, and exiling it from our community can we begin to make the necessary ideological shift.

Second, it never seems to be the majority community "more speech" advocates who take responsibility for generating the "more speech" in the public arena that is necessary to change the culture of the university to keep out the hate speech that we all abhor. Instead, the "more speech" response falls heavily on the shoulders of the victims of the denigration and disrespect. The groups of students and faculty who are already struggling against daily assaults of hate, disrespect and status inequality are revictimized by having to expend their already overtaxed time and intellectual commitments on organizing and addressing this issue of hate speech, which was directed against them.

Those who argue that "more speech" is the solution to the harms of hate speech have to show us how they have made that happen. It is not enough for members of majority communities to express their offense to their friends or colleagues in the halls and dorms. Nor is hate speech remedied by mentioning disapproval of it in class for a few minutes before returning to the "topic of the day." Most members of the majority community who are offended by the hate speech think we are absolved of responsibility and guilt-free, because we know we despise the speech and would never speak that hate.

At Syracuse University this fall, in response to HillTV, most unified groups of majority community faculty and deans came out in full force only when Chancellor Cantor took a definitive institutional stand to eliminate the hatred, and then, only to protect their vaulted 'free speech interests' from assault, not to counter the hate speech per se. Why didn't this response occur to address the hate speech in the first place? Majority and nonvictimized communities may need to do a lot of self-examining to see our complicity in this pattern that actually undermines the efficacy of the "more speech" approach, particularly if that is the argument we make against an institutional response.

To get the "more speech" approach to really work, "more speech" must come immediately, loudly, publicly, and strongly in gatherings organized by the privileged non-victims of the specific hate speech. Maybe when passionate and public responses to hate speech from the nonvictim majority become the norm, we can start understanding "more speech" as the best solution.


Leslie is a Board of Advisors Professor of Law at Syracuse University College of Law.