Hate Speech on Campus: What Public Universities Can and Should Do to Counter Weaponized Intolerance

Abstract

Democratic societies tolerate intolerance, but that obligation finds its limit when the security of its citizens is jeopardized or its institutions of liberty are imperiled. Similarly, universities tolerate intolerance, but that obligation finds its limit when threatened by weaponized intolerance advocates who disenfranchise and denigrate community members and imperil academic norms and professional standards of conduct. Then, just as democratic societies must protect their threatened citizens and safeguard their imperiled institutions of liberty, so universities must protect their threatened community members and safeguard their imperiled norms and standards. I argue for these conclusions by establishing a conflict between what the First Amendment legally permits university community members to express and what the norms of the university and the professional standards that structure academic freedom require from university community members. I argue that given the First Amendment, universities are legally obliged to tolerate even weaponized intolerance in campus public forums even if not in the classroom. I then recommend three responses to weaponized intolerance on campus that are consistent with the First Amendment: denunciation and protest, provision of safe space, and affirmation of academic values, norms, and standards. I reject three frequently encountered responses to weaponized intolerance as inconsistent with the First Amendment: heckler’s vetoes, student speech codes, and speaker bans. And I argue that one response—disruptive protest that falls short of a heckler’s veto—is legally permissible for students and faculty members but is ruled out for faculty members by academic norms and professional standards.